150 Ark. 443 | Ark. | 1921
Street Improvement District No. 305 Little Rock, Arkansas, was created by ordinance duly passed by the city council olf the city of' Little Rock on February 7, 1921, and - duly published on February 11, 1921. On March 7, 1921, a second petition in proper form was filed with the city clerk and notice duly published that a hearing would be held thereon on March 28, 1921. On April 4, 1921, the commissioners of the district took the oath and on May 9, 1921, filed with the city council, a report which reads in part as follows: “We have formed plans for the improvement within the district as prayed for in the petition, and have ascertained that 'the cost of such improvement will be $11,400, which is less than 20 per cent of the assessed value of the real property of said district as shown by the last county assessment.” No plans and specifications, or itemized statement of cost for the improvement, were filed with the council.
The duly appointed assessors of the district filed their assessment of benefits on June 16, 1921, and notice of such filing was duly published. Protests against the assessment of.benefits as filed were immediately made by the property owners. The city council referred these protests to its finance committee, which recommended to the council as follows: “We recommend a reduction in the assessment of 5% on property facing double track car lines and 2%% on property facing a single track car line.” The city council adopted these recommendations and referred them to the assessors for reassessment accordingly. The assessors revised the assessments according to these recommendations and filed the same on July 29, 1921.
On August 8, 1921, an ordinance was passed assessing the benefits in the district according to the assessments as revised, which ordinance was duly- published August 12, 1921.
This action was instituted by the appellant in the Pulaski Chancery Court seeking to have all of the acts of the city council, the board of improvement, and the board of assessors subsequent to the filing of the original assessment declared void. After setting out the facts as above appellant alleged that the board of improvement failed to file with the city clerk any plan-for the improvements within the district and that the council had- no authority to refer assessments once filed back to the board of assessors nor to revise the assessments when no appeal had been taken from the assessments of the board of assessors to the city council. The appellee demurred to the complaint on the following grounds, to-wit: “The complaint does not state facts sufficient to constitute a cause of action. The complaint shows that this is a suit to invalidate the assessment ordinance of said district and is begun more than thirty days after the publication of said ordinance and said suit is therefore barred and precluded.”
The court sustained the demurrer. The appellant stood on his complaint. The court entered a decree dismissing the same for want of equity, from which decree is this appeal.
It will be observed that the only purpose of requiring this report to be made to the city council is to advise that body, so that the latter may proceed to an-point the assessors, which is the only duty the' city council has to perform with reference to the report. The commissioners constituting the board of improvement are public agents, and necessarily vested ,'with large discretion in the discharge of their duties under the statute, and, if it had been the design of the Legislature to have the detailed plans, together with the itemized estimated cost of the improvement, filed with the city council before the latter could appoint the board of assessors, such purpose would have been plainly stated in the statute.
It is essential that the board of improvement form plans and procure estimates (for the cost of the improvement. Mo. Pac. Ry. Co. v. Waterworks Imp. Dist., 134 Ark. 315. And the board is directed to report the same to the city council, but the making of such report to the city council is not jurisdictional. If the commissioners had actually formed the plans and ascertained the cost thereof, but had failed to report the same to the city council, the latter body would still have had the power to appoint the assessors to assess the benefits. In others words, the further progress of the improvement could not be arrested and the whole improvement defeated simply because the board had failed or neglected to make proper report to the city council. The report made by the improvement board in this- case was in compliance with the requirements of the statute.
The decree is therefore correct, and it is affirmed.
