Opinion
Opinion delivered October 13, 1930.
1. MUNICIPAL CORPORATIONS — IMPROVEMENT DISTRICTS — DIRECT ATTACK. — A suit to enjoin a paving improvement district from proceeding with the improvement, brought within 30 days after publication of the ordinance fixing the benefit assessments, as required by Crawford Moses' Dig., 5668, is a direct attack upon the validity of the assessments. 2. MUNICIPAL CORPORATIONS — VALIDITY OF IMPROVEMENT DISTRICT. — The validity of a municipal paving district is not impaired by the fact that the property owners' petition and the ordinance creating the district fails to specify the manner of constructing and the material to be used in the paving. 3. MUNICIPAL CORPORATIONS — PAVING DISTRICT — RESTRICTIONS ON MATERIAL. — By specifying in the petition for a paving district the mind of material and manner of paving, the property owners may restrict the powers of the commissioners. 4. MUNICIPAL CORPORATIONS — INCORPORATION OF TOWN. — That an order of the county court incorporating a town contained no description of its proposed limits, but merely referred to a certain map of the town not on file, did not invalidate the organization of an improvement district within such limits. 5. MUNICIPAL CORPORATIONS — IMPROVEMENT DISTRICT — ASSESSMENT. — An assessment on a front foot basis is not void on its face, since such a basis may coincide with the actual benefits to the property. 6. MUNICIPAL CORPORATIONS — IMPROVEMENT DISTRICT — ASSESSMENT. — Evidence held to establish that the assessment in this case, based on the front foot basis, was discriminatory and invalid.
Appeal from Polk Chancery Court; C. E. Johnson, Chancellor; reversed.
Alley Olney, for appellant.
Duke Frederick and Abe Collins, for appellee.
STATEMENT OF FACTS
U. L. Thacker and other property owners brought this suit in equity against Paving Improvement District No. 5 of the city of Mena, Arkansas, and against the commissioners and assessors of said district to enjoin them from proceeding further with the proposed improvement or from entering into a contract for the construction of it or issuing bonds looking to that end. The suit was defended on the ground that the district had been regularly organized, and that the proceedings were in every respect valid.
The record shows that a majority in value of the property owners in the proposed district filed a petition with the city council looking to the paving of certain streets described in the petition in the manner and of the materials that the commissioners of said district should deem for the best interest of it, and that the cost thereof be assessed upon the real property in the district according to the benefits received. The ordinance creating the district followed the language of the petition and established an improvement district embracing lots which are specifically described in the ordinance for the purpose of paving the streets designated therein in the manner and of the materials that the commissioners of the district should deem for the best interest thereof.
The record shows that an assessment of benefits was duly made by the board of assessors appointed for that purpose. Two of the assessors were witnesses in the case. According to their testimony, the engineer of the district furnished the board of assessors with a list of the property for the assessment. The basis on which the assessment was made was ninety per cent. on frontage and ten per cent. on assessed value for State and county purposes. The engineer furnished them a list of the assessments made on that basis. They looked over the assessments and made changes in fifteen or twenty lots or pieces of property. There were four hundred lots or separate tracts of land in the district. Where a change was made in the assessment, the balance was spread over the rest of the property in the district so that the total amount of the assessment remained the same after the changes were made in the particular pieces of property.
According to the testimony of Mark P. Olney, there were approximately four hundred lots in the improvement district. He made a list of the lots with the assessment of benefits set opposite each one of them and compared them with the records of the assessment for county and State purposes. There were 264 lots that are assessed for a greater amount of benefits than the assessment of the same piece of property on the county and State assessment roll. There are 130 lots in which the county and State assessments run more than the benefits on them. Sixty-six and two-thirds per cent. of the property in the district has a larger assessment of benefits than the assessment for county and State purposes. The list contains 70 tracts which have no improvement on them, and there are a number of instances where there is only one house with several lots appurtenant to it.
According to the testimony of J. H. Allen, he was in the real estate business and had lived in Mena for twenty years. About half of the property in the improvement district has very small, cheap houses on the lots. Generally speaking, the property in the district has not enough value for it to be assessed more than the assessment for county and State purposes. The property is not of sufficient value to pay for the improvement at all. The witness further expressed the opinion that the proposed pavement of the streets would bankrupt the town. He did not think that the property would increase in value sufficiently to enable the owners to pay the assessment of benefits against it.
A number of property owners were introduced as witnesses, and all testified that the assessment of benefits was in many instances greater than the assessment for county and State purposes, and that the property could not be sold for an amount sufficient to pay the assessment of benefits. They all testified, that the property was not increased in value by virtue of constructing the proposed pavement, and that the construction of the pavement would not enable them to sell their property to any better advantage. Other testimony will be stated or referred to in the opinion.
The court found the issues in favor of the defendants, and it was therefore decreed that the complaint of the plaintiffs be dismissed for want of equity. The plaintiffs have appealed.
(after stating the facts). At the outset it may be stated that the present suit is direct attack against the validity of the assessments and the organization of the district because it was commenced within thirty days as required by statute. Williams v. Sewer Imp. Dist. No. 86, 180 Ark. 510, 22 S.W.2d 405; and Yates v. Phillips, 180 Ark. 709, 22 S.W.2d 559.
Crawford Moses' Dig., 5668 (Rep.).
The first ground upon which the validity of the organization of the district is assailed is that the petition for the improvement and the ordinance creating the same are too indefinite as to the kind of materials to be used in the construction of the proposed improvement. The record shows that the petition for the improvement and the ordinance establishing the district both provide that the paving shall be done in the manner and of the materials that the commissioners of the district shall deem for the best interest thereof. A majority of the property owners in value signed the petition for the proposed improvement vesting the commissioners with a large amount of discretion as to the manner in which the improvement should be constructed and the materials of which the pavement should be made. Under our decisions the validity of the organization is not impaired thereby, and the commissioners may exercise the discretion thus left to them. If the property owners desired to limit or restrict the powers of the commissioners as to the materials to be used and the manner of constructing the improvement, they should have done so by specifying with particularity in the petition the kind of materials to be used and the manner of constructing the proposed pavement. McDonnell v. Improvement District No. 145, Little Rock, 97 Ark. 334, 133 S.W. 1126; and Bostick v. Pernot, 165 Ark. 581, 265 S.W. 356.
It is next insisted that the order of the county court incorporating the town of Mena in which the improvement district was organized contained no description of the land within the proposed limits of the city, but merely referred to a map which is not on file in the office of the city clerk or of the county clerk. We do not think this fact would invalidate the district. The town of Mena was duly incorporated under the statutes of Arkansas. The order refers to a map of the town, and the petition and ordinance for the proposed improvement district show definitely and certainly that the district was laid out in accordance with the map of the town.
Finally, it is insisted that the assessment of benefits is arbitrary and discriminatory because the assessors practically followed what is called the front-foot rule.
In Selz v. Paving District No. 1 of McGehee, 173 Ark. 245, 292 S.W. 133, following our earlier decisions, it was held that under our Constitution, the assessment of benefits cannot be made on what is commonly known as the front-foot rule, but all proper elements of benefits, including the frontage of the property, the valuation of the property, the valuation of the building on it, etc., must be considered by the assessors in making their assessments.
In Lewellyn v. Street Improvement District of Russellville, 172 Ark. 496, 289 S.W. 470, it was held that even in a direct attack an assessment made on a front-foot basis is not void on its face because such a basis of assessment may coincide with the actual benefits to the property. The reason is that the question of benefits is to be ascertained from the facts in each particular case; and the surrounding circumstances, as developed by the proof, may show that there is a corresponding special benefit to the property assessed when the assessment is made under the front-foot rule.
Here, there is no uniformity of benefits, and the examination of the evidence shows that the advantages to the several lots to be derived from the paving are unequal. A considerable number of the lots are vacant. Some of them have two or three lots appurtenant to one dwelling house, and many of the houses are small and are only used as dwelling houses. Hence, under the proof introduced, the situation of the property, as well as the houses on it, are not so that there can be any uniformity or equality of benefits under a front-foot rule of assessment.
It is true that the assessment here made was not wholly according to the front-foot rule. The table prepared by the engineer of the district shows that ninety per cent. of assessment of benefits was on frontage and ten per cent. on assessed valuation for State and county purposes. This was practically an assessment according to the front-foot rule, under the facts proved, and the situation of the property being so that such an assessment could not, in any sense, confer uniformity of benefit, it must necessarily be discriminatory in its character. We are of the opinion that under the facts shown by the record the board of assessors was practically guided by the frontage of the property in making the assessment of benefits. The proof in the case shows that the lots or parcels of land in the district were not so situated as to admit the application of such a rule. Hence such an assessment according to frontage could not and did not apportion the expense according to the benefits. Therefore the decree will be reversed and the cause will be remanded with directions to the chancery court to hold the assessment invalid as being made on the wrong basis, and for further proceedings, according to the principles of equity and not inconsistent with this opinion.