Crescent Hotel Co. v. Bradley , 81 Ark. 286 ( 1906 )

McCulloch, J.,

(after stating the facts.) The determination of this case turns mainly upon the question of fact whether the contract for the construction of the improvement apportioned the cost thereof to each district separately, or whether the board of improvement contracted for the work as a whole, and after its completion undertook to apportion the cost to the several districts. The preponderance of the evidence seems to sustain the contention of appellees that the apportionment of cost made by the board of improvement was more favorable to District No. 4 than the facts warranted (though this is not altogether clear, for the reason that the cost of the improvement under thé contract with Brownell was less than the original estimates prepared under direction of the board and submitted to the city council when the assessments on property were levied) ; and if this was erroneously done by the board after the letting of the contract and the completion of the work, we- can not say that the taxpayers of District No. 3 would be without remedy for correction of the mistake. On the other hand, if the board made a contract for construction of the improvement, apportioning- the cost thereof separately to each district for the amount of work done in each, as it was their legal duty to do, then one of the districts can not be made to share an unjust burden imposed upon another district by a harsh, contract entered into either through fraud or mistake of the board of improvement. The spirit of the Constitution, as well as the express letter of the statute, forbids that “money raised by assessment in one district shall be expended in another district,” or that improvements contracted for in one district shall be paid for with money raised by assessments in another. The contract entered into by the board of improvement must be looked to in ascertaining whether or not the money about to be expended is for improvements made in this district; and if the board have wrongfully by fraud or culpable negligence imposed an unjust burden upon the district by a contract for excessive cost of the improvement, the remedy is against them, and not against the taxpayers of another district who have been fortunate in securing a more favorable contract for the construction of improvements in their district.

Learned counsel for appellees have brought to our attention' numerous authorities, including many decisions of this court, to the effect that a citizen and taxpayer should find ready relief against unlawful and oppressive taxation; but none of them would sustain a contention that the taxpayers of one locality can be called upon to share the burden of oppressive taxation in another, nor that one improvement district, which has secured a favorable contract for the construction of its improvement, can be required to share the burdens of its less fortunate neighbor, even though both districts be controlled by the same board, and the contracts made in the same way, at the same time and with the same contractor.

The statute in force at the ■ time of organization of these districts provided that “where there is more than one district in the city for the same general purpose, the same member may be on two or more boards, or the boards of different districts may combine so as to form only one board for the whole territory to be thus improved, so as to make the whole improvement uniform; but no money raised by assessment in one district shall be expended in another district.” Mansf. Digest, § 832.

Under this statute.the separate identity of each district was intended to be preserved, so that “no money raised by assessment in one district shall be expended in another district;” and in order to accomplish the same end it was essential that separate contracts for the work in each district should be entered into. Not necessarily separate instruments or forms of contract, but contracts whereby the improvement and cost thereof in each district could be separated. Uniformity in the character of the improvement to be constructed, without destroying in any degree the separate identity of the several districts, was the sole object to be accomplished by the combination provided for in the statute.

This brings us to a consideration of the controlling question of fact, whether or not the contract was let upon separate estimates of the cost of the improvement in each district. We think that the evidence fully establishes the fact that it was let upon separate estimates, and that, though the contract was a joint one for the work in the three districts, it was separate as to the work in each district. The original’ written proposal submitted to the board by the contractor was to do the whole of the work in all of the districts for a gross sum, but the contractor and three members of the board testify that separate estimates were made of the work in each district before the letting of the contract. The plans and specifications upon which the contract was based have been lost, and were not introduced in evidence. The contract recites a gross sum to be paid for the work, $10,000 of it payable in cash, and the remainder in bonds'of the districts. The contract does not specify the proportion in which the cash was to be paid by the three districts, but it does specify the amount of bonds to be issued by each district to the contractor in payment for the improvement.

The witnesses state how much cash was to be paid, and was paid, by each of the districts.

There is very little conflict in the testimony upon this point. The only conflict grows out of a contradictory statement made by the contractor Brownell in a public speech wherein .he said that, in apportioning the cost of the improvement, he could not figure it out, and that he had “arbitrarily” apportioned it. Now, if we should disregard the license usually accorded to political speakers in dealing with facts in a' heated campaign, and hold this man literally to his words spoken under such circumstances, they do not tend to make out a case for the plaintiffs. If the contract for the improvement was let upon estimates apportioning the cost to the districts separately, and if the several districts entered into a contract for construction of the work according to the separate estimates, the fact that the estimated cost was “arbitrarily” apportioned affords no reason why District No. 4 should be .required to pay more than it contracted to pay for its part of the improvement.

We conclude that the plaintiffs have shown no right to recover from District No. 4, and the decree was erroneous.

The decree is therefore reversed, and the cause remanded with directions to dismiss the bill for want of equity.