114 Ark. 359 | Ark. | 1914
(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. ’ ’
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.
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.
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.