White v. Board of Comm. of Street Imp. Dist. No. 2

McHaney, J. The parties to this action are the same, as those in Beloate v. Street Improvement District No, 2, 203 Ark. 899, 159 S. W. 2d 451, in which appellants here sought to avoid payment of delinquent assessments of betterments in appellee district. A decree of foreclosure of the lien was rendered against them for the delinquent tax and in favor of the district which was affirmed by this court on February 9, 1942. This action seeks to enjoin the commissioner from selling their properties for this purpose on the grounds: (1) That they are in financial distress and it would be a great and unnecessary hardship on them; and (2) that the state has made certain donations to the district under acts 11 of 1934 2d Ex. Ses. and 385 of 1941 for the benefit of delinquent property owners in the district, because certain streets improved by the district have been taken over by the state as portions or continuations of the state highway system and that appellants’ lots are adjacent thereto; that there is more than a sufficient sum on hand to retire all indebtedness of the district; and that the amount against their properties is not needed for any indebtedness of the district. They prayed that the foreclosure decree be canceled or that it be satisfied as against their property, and that the sale ordered be enjoined. The answer was a general denial. Trial resulted in a decree dismissing the complaint for want of equity. ¡ We think the trial court correctly held the complaint was without equity. Appellants contend that the fact that their property abuts on a street in the district which is a part of the state highway system and that the state has paid the district the cost of the improvement made on such street, such payment by the state should be applied to the extinguishment of the delinquent taxes or assessments against their properties. This is not correct and we have several times held directly to the contrary. In Jacks on v. Foster, 192 Ark. 712, 94 S. W. 2d 113, we held under a similar situation, that state aid to a municipal street improvement district under act 85 of 1931 is paid to the district for the benefit of the entire district and not for the exclusive benefit of property owners abutting on the state highway. To the same effect is Lightle v. Kirby, 194 Ark. 535, 112 S. W. 2d 966, where the contribution by the state to the district was made under act 11 of 1934, 2d Ex. Ses. In Ingram v. Board of Commissioners of Street Improvement District No. 5 of Stuttgart, 197 Ark. 404, 123 S. W. 2d 1074, it was held, to quote headnote No. 8: “That the commissioners will, if the delinquent assessments be collected, have more than enough to discharge the district’s indebtedness is no defense, since after the appellant shall have paid his taxes, he will have been required to pay no more than other property owners in the district were required to pay, and he will be entitled to share with them in the distribution of the surplus.” Appellants cite and rely upon the holding in Tri-County Highway Imp. Dist. v. Taylor, 184 Ark. 675, 43 S. W. 2d 231, to support the contention here made, but we think this case has no application here. A mere reading of the case in connection with the cases above cited will demonstrate its inapplicability here, and to set out the distinctions here would serve no useful purpose and would unduly extend this opinion. Appellants do not contend that the alleged hardship on them would justify the relief prayed. Presumptively their properties have been benefited in a sum at least equal to the assessment made. The former decree, affirmed by this court, may be res adjuclieata of the questions now raised. But whether it is or not, it follows from what we have said that the decree here is correct, and it is accordingly affirmed.