233 F. 402 | 8th Cir. | 1916
Defendants in error, hereafter called plaintiffs, brought this proceeding in mandamus against the plaintiffs in error, hereafter called the defendants, to compel the assessment and levy of certain taxes for the purpose of paying a judgment which the plaintiffs had obtained against the board of improvement of sewer district No. 1, in the city of Marianna, Ark. Judgment was rendered in favor of the plaintiffs, and defendants sued out a writ of error to review that judgment. The judgment was rendered on the pleadings, and we will endeavor to state the facts as they appear therefrom.
Plaintiffs on the 28th day of January, 1901, entered into a written contract with the defendants as the board of improvement of sewer district No. 1 of Marianna, Ark., wherein the plaintiffs contracted for the sum of $15,650 to do certain work and furnish all the materials, tools, and labor necessary to complete an unfinished and abandoned contract for the construction of a system of sewers in and for said sewer improvement district No. 1, according to certain plans and specifications. Plaintiffs fully complied with their part of the contract and completed the work according to the terms and requirements thereof, and demanded of the defendants the balance due therefor in the sum of $5,539.01, which demand was refused. Thereupon the
Section 5683, Kirby’s Digest of the Statutes of Arkansas, provides:
"No single improvement shall be undertaken which alone will e,xeeed in cost twenty per centum of the value of the real property in such district as shown by the last county assessment.”
Section 5720 of the same digest provides that the hoard of improvement in order to hasten the work may borrow money and pledge ail uncollected assessments for the repayment thereof. The powers of the board of improvement are derived directly from the Legislature, and in exercising their powers the board acts as the agent of the property owners. Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702. The Supreme Court of Arkansas has decided that no assessment could be made against the real property of any improvement district for any single improvement in excess of 20 per centum of the assessed value. Morrilton Waterworks Improvement District v. Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666; Lenon v. Brodie, 81 Ark. 219, 98 S. W. 979; Webster v. Ferguson, 95 Ark. 575, 130 S. W. 513.
It therefore appears that there are two facts established by the record which would prevent any relief in this action in favor of the plaintiffs. The first is that, the expenditures already paid and incurred by sewer district No. 1 exceed 20 per centum of the assessed valuation of the real estate in the district. This is shown by the following statement :
Expenditures ............. $28,899.34
Interest paid on bonds........................... 12,698.75
Interest to be paid on bonds........................... 29’557.50
Expense in collecting future assessments.............. 2,169.72
$73,325.31
Assessed valuation $337,550, 20 per cent, of tliis amount would be .............. ... . ...................... 67,510.00
Excess ...................................................$ 5,815.31
The interest on the bonds is a part of the cost of the improvement. Fitzgerald v. Walker, supra'; Bateman v. Board of Commissioners, 102 Ark. 306, 143 S. W. 1062. This state of the case would prevent any new assessment.
The plaintiffs, however, claim that they are entitled to have their judgment paid from uncollected assessments which they claim to be as follows:
Expenditures paid...............................................$28,899.34
Interest paid.................................................... 12,698.75
Total ....................................................$41,598.09
Twenty per cent, of amount of assessment.........................$67,510.00
Less .................... 41.59S.09
Uncollected assessments...................................$25,911.91
The case cited was brought in equity by Hagadorn, a holder of bonds similar to those issued by sewer district No. 1, for the purpose of having a receiver appointed to collect certain unpaid assessments and to enforce the pledge of the same for the payment of the bonds. It was objected that the complainants had an adequate remedy at law. The court sustained this objection and enforced the rule that the powers of a court of equity cannot be made use of to assess and levy taxes. For the purpose of maintaining the suit in equity, the complainant contended that the bondholders had a lien upon the uncollected assessments which a court of equity had jurisdiction to enforce. In reply to this contention, the court held that the language of the Legislature of Arkansas, in providing that the uncollected assessments might be pledged for the payment of the bonds, used the word “pledge” in a colloquial and not in a technical sense, and decided there was no lien; but the court did not intend to hold that the sewer improvement district could not pledge or hypothecate the uncollected assessments for the payment of the bonds and interest in face of the statute which expressly permitted it to do so, and in this case we have no doubt but that under the statute the board of improvement could pledge in the sense that word is used in the statute, and according to the record did pledge the uncollected assessments for the payment of the bonds and interest. This is frequently done where railroads'mortgage their income for the payment of bonds. It has been held by this and other courts that taxes assessed for the purpose of paying bonds and interest cannot be diverted to any other purpose, but must be sacredly kept for the purpose for which they were assessed and levied. Brooke v. City of Philadelphia, 162 Pa. 123, 29 Atl. 387, 24 L. R. A. 781; Vickrey v. Sioux City (C. C.) 104 Fed. 164; Farson et al. v. Sioux City et al. (C. C.) 106 Fed. 278; Jewell v. City of Superior, 135 Fed. 19, 67 C. C. A. 623; Olmsted v. City of Superior et al. (C. C.) 155 Fed. 172. It is elementary in the law of mandamus that the writ carries no power; that is, a board or officer cannot be compelled to do by mandamus that which he could not do without it.
We therefore are of the opinion that the trial court erred in awarding a peremptory writ, and that the judgment below must be reversed, and the case remanded, with instructions to grant a new trial.
And it is so ordered.
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