115 Ark. 88 | Ark. | 1914
Lead Opinion
(after stating the facts).
After the commissioners reported that the improvement prayed for and designated could not be constructed within the cost of twenty per centum of the assessed value of the real property within the district, as limited by the statute, it should have been abandoned ’and the council was without authority to authorize the establishment of a district for the purpose of making only a part of the improvement prayed for in the original petition that contemplated the entire improvement designated should be made and, certainly without authority to create other districts upon such petition for the purpose of constructing different portions of the improvement prayed for and designated in the original petition. It was the evident purpose of the statute to permit those desiring improvements made to designate the nature of the improvements to be undertaken for which the district should be organized, that the whole improvement should be seen from the beginning and that the cost of it should not exceed the amount fixed by the statute. The manifest intention of the law authorizing those who desire their property assessed for the purpose of making a designated public improvement and limiting the cost of such single improvement for their protection, as well as of all those who are required, to pay, whether the improvement is desired, by them or not, can not be evaded by splitting the entire improvement prayed for by the petitioners into separate sections or portions, and authorizing and establishing districts for the making of each portion that the single improvement undertaken may be within the cost limited by law. All the ordinances for the establishment of the different districts were without authority and void, and likewise the action of the commissioners thereunder. It is contended, however, that appellant is estopped to dispute the validity of the different improvement districts and escape the payment of the assessment levied therein on account of having received the benefits of the different improvements already constructed, and because of the instrument executed by her after the legality of the districts were questioned, waiving all irregularities in their formation, and guaranteeing the payment of all of the assessments levied for the construction of the different improvements. We do not agree with this contention. Improvement districts are creatures of the law and can not be created by consent, waiver, estoppel, nor agreement of the property owners. ” They are governmental agencies, deriving their powers directly from the Legislature and can exercise no powers, perform no duties nor incur any liabilities except by authority conferred upon them expressly by statute. Board of Improvement Sewer District v. Moreland, 94 Ark. 381; Lewis v. Rieff, et al., 114 Ark. 366.
The property owner has the right to rely upon the protection afforded him by the statute and to expect the organization of improvement districts in cities and towns and the levy and collection of assessments against his property in accordance with and as provided by law, and he is not estopped to deny the validity of any assessment against his property where the improvement district has failed to secure the power to make the levy in not complying with the terms of the statute authorizing- its creation as in this case. Here the defects complained of are not mere irregularities in the exercise of powers conferred upon the district but consist of failure on tbe part of the board of improvement to secure the power to make the improvement through the necessary prerequisite, the petition of the majority in value of the property owners of the district, and the appellant is not estopped to challenge the power of the district and the validity of the assessment because she has stood passively by and seen the improvement go on and paid all prior assessments levied against her property. Watkins v. Griffith, 59 Ark. 344.
Those interested in the- collection of the assessment as compensation for the work done in making the improvements can not be said to have relied upon her acquiescence in the creation of the district since they knew in making the contracts with the board of improvement that they were dealing with a governmental agency without powers, except as expressly conferred by statute and whose authority they were bound to know. Neither was she estopped to deny the authority of the district, nor the validity of the assessments by reason of the execution of the said waiver and guaranty, since improvement districts are not created nor liabilities for assessments fixed, by estoppel, as already said. By the terms of this agreement or equitable mortgage she at most bound herself to the payment of the future assessments, specifying them in the amount limited therein with a lien against her property to secure the payment, and the extent of her liability is fixed by the instrument executed. When the improvement was constructed or finished and the moneye expended therefor upon the faith of her agreement, her right to successfully challenge the validity' of the assessments levied by the district does not release her from the terms of this agreement nor relieve her from the payment of the amounts as agreed upon therein, but her failure to pay as and when agreed only subjects her property to the payment of the amount agreed to be paid and the usual cost for proceeding against it in the collection, and does not include any penalties or attorneys fees, there being no agreement to pay them. In other words, her liability is fixed by the terms of the agreement and mortgage executed by her and not by the statute relating to the collection of delinquent assessments in improvement districts.
Mr. Auten, one of the members of the alleged board of commissioners, testified that the contract was made with them for the purpose of borrowing money from the trust company to construct the improvement. Therefore they as individuals could bring a suit to recover on the contract and the additional designation of ■ themselves ia.s commissioners is mere surplusage. The contract in question was introduced in evidence and its execution was admitted. The proper parties were before the court and the pleadings may be considered amended to conform to the proof. It is true the trust company was not made a party. It was a proper but not a necessary party. It knew that the contract in question had been made with Auten and others for its benefit, and would be bound by the decree.
It follows that the court erred in its decree which is reversed and the cause remanded with directions to consolidate the suits and to render judgment against the appellant herein for such sums of money as are due under the terms of the mortgage agreement with the foreclosure of the lien and the cost only of one suit for that purpose.
Concurrence Opinion
CONCURRING OPINION.
I think the authorities cited in appellee’s brief abundantly sustain the doctrine of estoppel as applicable in a case of this sort; and in the case of Matthews v. Kimball, 70 Ark. 451, all of the judges (both those constituting the majority and the dissenting judges) agreed that the doctrine of estoppel would apply to one who had done some affirmative act in inducing the formation of the district.
In Whipple v. Tuxworth, 81 Ark. 391, this court held that there may be a de facto improvement district without de jure existence, and that such organization could sue and be sued; and the court applied the general doctrine that “a corporation de facto may sue and be sued, and, as a rule, may do whatever a corporation de jure can do, and no one hut the State can call its existence in question.” That was the same district which was declared void on account of jurisdictional defects in Board of Improvement v. Cotter, 71 Ark. 556. Of course, the court did not hold that a property owner could not dispute the validity of his assessments on account of the illegality of the district, hut decided that an illegally formed district had a de facto existence which authorized it to sue.
(on motion to modify the opinion). The majority of the court now approve the concurring -opinion. It thus becomes the law -of the case, and to that extent the original opinion is modified. The decree of the chancery court is therefore reversed and the cause is remanded with directions to consolidate the actions against appellant -and render a decree against her for the amount of the assessment and costs of -one action, without penalty or attorney’s fees.
