162 Ark. 9 | Ark. | 1924
(after stating the facts). Under our Constitution the Legislature is empowered to create local improvement districts in towns and cities, under such regulations as may be prescribed by law, to be ba,sed upon the consent of the majority in value of the property holders owning property adjoining the locality to be affected. According to the allegations of the complaint, the improvement district in question was organized in conformity with the provisions of the statute, and the defendants were duly appointed as commissioners to make the improvement. The powers of the commissioners are given by our statute, and, in exercising the powers conferred, the board of commissioners acts as the agent of the property owners in the district. Fitzgerald v. Walker, 55 Ark. 148.
Under § 5656 of Crawford & Moses ’ Digest the board is authorized to form plans for the improvement and to procure estimates for the cost thereof.
Section 5657 provides that, as soon as said board shall have formed said plans and1 shall have ascertained the cost of the improvement, it shall report the same to the city or town council.
According to the allegations of the complaint, the estimated cost of the work as shown by this report on file, as required by the statute, is $19,195.
Section 5708 of the Digest provides that, in order to hasten the work, the board may borrow money not exceeding 90 per centum of the estimated cost of the work, at a rate of interest not exceeding 10 per centum ner annum, and mav pledge all uncollected assessments for the repayment thereof.
. The Ian «mage of the statute is plain and unambiguous. It manifestly refers to the estimated cost of the work provided for in § 5656. There is no allegation in the complaint that the estimate of the cost of the work reported1 by the board to the city council was the result of fraud or gross mistake. Therefore, under the statute, the board had the authority to borrow-money, in any sum not exceeding 90 per centum of $19,195, which was the estimated cost of the work as reported by the commissioners to the city council, and on file with the city clerk.
It follows that the chancery court erred in restraining the commissioners from issuing bonds for more than 90 per centum of $18,000.
The court sustained a demurrer to the first paragraph of the complaint. This was not error. Under § 5708 the right to borrow money to construct the improvement is conferred upon the commissioners, and they are given the power to pledge all uncollected assessments for the repayment thereof. This section, by necessary implication, gives the board the power to borrow money and to issue bonds or other written evidence of the indebtedness to the creditors of the district. Altheimer v. Board, etc., Plum Bayou Levee Dist., 79 Ark. 229.
As we have already seen, the powers of the commissioners are given by the statute, and we cannot know in advance that there will be any innocent purchaser of bonds within the meaning of the law merchant. Certainly no such parties are before the court, and, as stated in the case of Fitzgerald v. Walker, 55 Ark. 148, we are not called upon to decide whether a board of improvement, bv making notes or bonds negotiable in form, can invest them with all the characteristics of commercial paper issued by individuals or private corporations. Questions of this sort will be decided when they arise, but will not be determined in anticipation of the possibility that they may arise.
It follows that the decree will be reversed, and the cause remanded with directions to sustain the demurrer to the second paragraph of the complaint.