Deane v. Moore

McCulloch, C. J. Appellees constitute the board of improvement of a district formed in the city of Little Rock for the purpose of paving portions of certain streets in a given territory; and appellants, who are owners of property affected by the improvement, instituted this action to restrain further proceedings. The district was formed ’by an ordinance of the city council, passed April 17, 1911, pursuant to a petition of ten owners of real property situated within the territory to be affected; and thereafter, within the time prescribed by statute, a petition, purporting to be signed by a majority in value of the owners of the real property in the ’ district, was presented to the city council, praying that the improvement he made. The city council appointed the hoard, and they proceeded to form plans to make the contemplated improvement. This suit involves an attack upon the validity of the proceedings and the purpose of it is to restrain the board from taking any further steps looking to letting the contract for constructing the improvement or levying assessments. The first point of attack is that, after the petition was signed by property owners, a material alteration therein was made, which rendered the petition void. The streets to be improved were thirty-six feet in width, and the petition, as presented, contained a clause asking that “the width of the streets be diminished to lessen the expense. ” It is charged that those words were incorporated-in the petition after it was signed. The city council passed an ordinance narrowing the streets from thirty-six to thirty feet in width; but that evoked considerable opposition among the property owners, and another ordinance was later passed repealing it and restoring the street to its former width. It is contended that that ordinance had not been published and that it is, therefore, inoperative. But, from the condition of the record presented here, we must support the finding of the chancellor that the ordinance was duly passed and published. The materiality of that question, however, will be discussed latér. There is a conflict in the testimony as to whether or not the clause above quoted with reference to narrowing the street was in the petition at the time it was signed by the property owners. The chancellor apparently found against appellants on that issue; but the view we take of the case renders it unnecessary for us to determine whether or not that finding- is against the preponderance of the evidence. The matter of fixing the width of the street was one which addressed itself to the city council, entirely apart from the question of making the improvement. It had no proper place in the petition for the improvement, as the statute prescribes what the contents of the petition shall be. That request must, therefore, be treated as surplusage in the petition. It might have been separately made as an expression of the wishes of the property owners, and for that purpose could be treated as a separate and distinct request. But its presence there did not affect the validity of the petition, even if it was inserted after the petition was signed, for it did not amount to a material alteration. If the request for narrowing the street had been embodied in the petition as a condition upon which the property owners based their consent, then the question would arise whether the improvement could 'be made unless that condition was complied with. But it is not stated in the petition as a condition, and is a bare request of the property owners, and their consent is expressed regardless of the result of their request. Besides, appellants are not complaining that they made this request and that it was not complied with. The basis of their complaint is that they did not make the request at all. Therefore, it can not be said, in any view of the case, that their rights have been affected. If the city council, in the exercise of its power over the streets, saw fit to narrow the street, it necessarily resulted in the lessening of the cost of the improvement. On the other hand, if the request is not complied with and the width of the street is not diminished, appellants are not injured, for that is what they are striving for. Even if the ordinance repealing the former ordinance narrowing the street had not been published, it is still within the power of the city council to pass another ordinance on that subject. In no view of the casé, however, does that affect the validity of the proceedings. It is next contended that the board of improvement is about to make contracts for constructing the improvement at a cost largely in excess of 20 per cent of the value of the property in the district as authorized by statute. That contention is not sustained by the record. The proof shows that the amount of the contract price, including interest on bonds, after deducting the amounts to be contributed by the city and county toward the improvement, will not exceed 20 per cent of the assessed valuation of the property, and is, therefore, not in conflict with the statute which limits the cost of improvement to “20 per centum of the value of the real property in such district as shown by the last county assessment. ’ ’ Kirby’s Digest, § 5683. The proof warrants the conclusion that the promised contributions from the city and county will be made, so that the cost to the district of making the improvement will not exceed the statutory limit, nor amount to an abortive attempt to make the improvement without having sufficient funds. McDonnell v. Improvement District, 97 Ark. 334. The statute is amended by Act No. 125 of the General Assembly of 1913, so that interest on money borrowed shall not be computed as a part of the cost of improvement as far as relates to the limit of 20 per centum. But the new statute, at least so far as it respects this limitation, is not retroactive and does not apply to an improvement which the property owners have already petitioned for. To give it that effect will be to impose an additional burden upon the property owners without first obtaining their consent as required by the Constitution. But, as before stated, the proof is sufficient to warrant the finding of the chancellor that the cost of the improvement does not exceed the limit fixed by the statute. It is .also contended that two of the signatures on the petition were unauthorized. It appears, however, that if the property represented by those signatures is eliminated from the petition it still embraces a majority in value of the owners of the property. Another point made in the brief is that the petitioners have wrongfully executed a note for the sum of $100 to the party who circulated the petition. Appellee seeks to justify this under the act of 1913, which authorizes the board of improvement to “pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof.” As before stated, the act of 1913 is not retroactive and does not authorize payment to the promoter of a district organized prior to the passage of the act. However, that does not affect the validity of the other proceedings toward making the improvement and the complaint does not contain any prayer for relief against that expenditure. We do not find in the record any grounds for restraining the proceedings, and the chancellor was therefore correct in dismissing the complaint for want of equity. Decree affirmed. Smith, J., not participating.