Casey v. Trout, 114 Ark. 359

Casey v. Trout

114 Ark. 359 | Ark. | 1914

Hart, J.,

(after stating the facts). It is contended by counsel for appellant that the claim of appellees for the value of the curbing is barred by the statute of limitations. To sustain their contention they rely on section 5685 of Kirby’s Digest, which reads as follows: “Within thirty days after the passage of the ordinance mentioned above, the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time; and all persons who shall fail, to begin legal proceedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded.”

The claim of appellees for the set-off is based on section 5689 of Kirby’s Digest, which reads as follows: “If, in the construction of sidewalks or making other improvement, any owner of taxable property in the district shall be found to have improved his own property in 'such manner that his improvement may be profitably made a part of the general improvement of the kind in the district being also as good as that required by the system determined upon by said board, the board of improvement shall appraise the value of the improvement made by the owner, and shall allow its value as a set-off against the assessment against his property. And in case the owner who has made such improvements shall be found to have failed- to come up to the required standard, the board may allow him the value of the materials thereof, so far as the same may be profitably used in perfecting the system aforesaid, as a set-off against the assessment against his property thus improved. In such cases the board shall issue to the owner a certificate showing the amount of set-off allowed, which certificate shall be received by the collector in lieu of money for the amount named therein charged against said property. ’ ’

(1-2) It is manifest that section 5685 has no reference to the provisions of section 5689. Section 5685 provides a limitation for the purpose of correcting or invalidating assessments made against the property. Section 5689 has no reference to the action of the assessors. It provides the manner in which a property owner may be allowed compensation for an improvement made by himself which has been used by the board of commissioners in constructing the general improvement. At the time the assessment is made on his property, the property owner could not know whether or not the board of improvement would use in the construction of the general improvement an improvement which had already been made by him. That is, in the present case, appellee could not know at the time the assessment on his property was made whether or not the board of commissioners would use his curbing in constructing the general improvement in the district. He could not know this fact until after the board had determined whether or not it would use it. After he ascertained 'that the board did use the curbing which he had placed in front of his lot, he demanded of the board of improvement that it should allow him the value of his curbing. It is true that he did not make this demand of the board while it was in session, but he did make it to one or more members of the board, and the agreed statement of facts shows that the board declined to make any allowance to him for the value of his curbing, and so notified him. Thus it will be seen that appellee Trout did all that he could do to secure the allowance. It would have been useless for him to file a written application for such an allowance after the members of the board had refused to make it, and it is a maxim, of almost universal application, that the law does not require a vain and useless thing to be done.

(3) In this respect the instant case differs from Board of Improvement District No. 5 v. Offenhauser, 84 Ark. 257. Here the claimant asked the board to make an allowance for his curbing. In that case, the claimant did. not ask the board to make him an allowance, and the court said he was not entitled to a set-off because he did not pursue the method pointed out by the statute. In other words, if the claimant does not ask for an allowance as required by the statute, he is not entitled to it, but if he • does ask the board for an allowance, and it is refused, he may present his claim as a set-off to a suit to'collect his assessment if done in apt time.

(4) It is true that the latter part of section 5689 provides that the board shall issue to the owner a certificate showing the amount of the set-off allowed, which certificate shall be received by the collector in lieu of money for the amount named therein charged against said property. This is done for the convenience of the property owner and under the statute he can present it to the collector in payment of the taxes assessed against him just as county and State warrants may be used in the payment of taxes assessed by the county and State, respectively.

It does not follow, however, that because the board of commissioners refused to make the allowance that the property owner is deprived of the use of his claim as a set-off against the assessment sought' to be enforced against his property. Such holding would leave him entirely without a remedy in case the board of commissioners refused to make him an allowance.

It is insisted by counsel for appellant that appellee’s remedy to compel the board of improvement to make the allowance would have been by mandamus. We do not agree with tbem in tbat contention. Mandamus would have been tbe proper remedy, perhaps, to compel tbe commissioners to act on bis claim, but not to control their action on it.

(5) In the instant case, the board of commissioners did act on bis claim and refused to allow it. Appellee then could present bis claim in an action brought against him, by the board to enforce collection of the assessment made on bis property.

(6) Again, it is contended by counsel for appellant tbat appellee is barred by laches. “Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether be presses a right promptly or slowly within limits allowed by law; but when, knowing bis rights, be takes no step to enforce them until the condition of the other party has in good faith become so changed tbat be can not be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. Tbe disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief.” 5 Pomeroy, Eq. Jur. (3 ed.), section 21.

This quotation from Mr. Pomeroy was approved by this court in the case of Tatum v. Arkansas Lumber Co., 103 Ark. 251. The doctrine bad also already been defined in substantially the same language in the case of Earle Improvement Co. v. Chatfield, 81 Ark. 296.

(7) Appellee Trout paid the assessments for the years 1908, 1909, 1910 and 1911, but refused to pay the assessment for the year 1912, and this suit was instituted for the purpose of collecting that assessment. A period of only four years bad elapsed, and there is nothing in the record to show that the condition of the parties bad been changed in the slightest degree during these four years. No disadvantage had come to appellants from the loss of evidence, change of title, intervention of equity, or from any other cause.

(8) There is nothing in section 5689 from which it may be inferred that the set-off should have been used against the first assessment sought to be enforced against the property owner. In fact, but one assessment of bener fits is made against the property, but the payment thereof may be divided into a series of years.. The assessment is still one assessment. Therefore, had the certificate been allowed by the members of the board, it could have been used in the payment of the assessment for any year.

As we have already seen, the board refused to allow the claim of appellee and we do not think he has been guilty of any conduct that would be the ground of a denial of the relief asked by him. As said by Mr. Pomeroy, laches, in legal significance, is not mere delay, but is that delay which works disadvantage to another.

It follows that the decree will be affirmed.