Stone v. Sewer Improvement District No. 1 , 1913 Ark. LEXIS 139 ( 1913 )

Wood, J.,

(after stating the facts). 1. The chancery court had jurisdiction to entertain the bill of review, which was in the nature of an original bill, and it did not abuse its discretion in permitting the complaint or bill of review to be filed.

“The court of chancery has inherent power, without the consent of the appellant tribunal, to review, on the ground of newly discovered evidence, its decree, though it has been passed upon on appeal, and no principle or practice requires that it shall refrain from doing so until the consent or countenance of the superior court shall have been obtained.’’ Putnam v. Clark, 35 N. J. Eq. (8 Stewart), 145-150.

The bill in the present case was not a bill of review for errors apparent on the face of the record, but was founded upon alleged newly discovered evidence of facts occurring since the former decree, which, if they had been in existence and brought forward at the former hearing, would have most likely changed the results. See Holl v. Waddill, 78 Miss. 41 et seq.

In Jacks et al. v. Adair, 33 Ark. 161-171, this court said: “Without multiplying citations it may be taken as the result of American authorities, that whilst all deny the power of the court of chancery, after the action of a court of appeals, to review its decrees for matters which might have been assigned as error, they either expressly announce, or with very few exceptions, concede this power for newly discovered facts; and it must exist of necessity somewhere, or there would in many instances be a total failure of justice. This court can not enter-' tain jurisdiction of a bill of review of its own decrees. Such bills are not of an appellate character, but when founded upon newly discovered facts, as this is, are of original nature.’’ Killian v. Killian, 98 Ark. 15.

In Craufurd v. Smith, 93 Va. 623-628, it is said: “The court, before allowing a petition to rehear, or a bill of review, to be filed on the ground of newly discovered evidence, ought to be satisfied that the evidence relied on is new and could not, by ordinary diligence, have been discovered prior to the date of the decree complained of. ’ ’

The chancellor, having allowed the bill to be' filed, must have become convinced in these particulars.

2. The next and only other question to be considered. is whether or not the complaint or bill of review stated facts, the truth of which when conceded, as they were by the motion or demurrer, sufficient to change the result of the former decree and to authorize the relief which the appellants seek.

In Killian v. Killian, supra, speaking of a bill of review, we said: “A bill of review is an independent proceeding, and is a complaint by the party seeking the relief as the complainant. Its object is to reverse or modify a decree rendered in a former case, and it should specifically state the grounds upon which it is based. If it is based upon newly discovered evidence, it should state facts showing that this alleged new evidence is relevant and material to the issue involved in the original case and of such a character and cogency that it would change or at least probably change the result.” And, further, “The bill for review will not lie where * * * such new evidence is not in fact material to the issue that was decided by the former decree and could not change the. result. ’ ’

Tested by the above rules, we are of the opinion that the facts stated in the complaint were not sufficient to change the result of the decree on the former hearing as to the legality and validity of the assessment.' The facts which have occurred and which are now brought forward in the bill as newly discovered evidence, to change the former decree, are substantially, that since the first decree was rendered the supplemental sewer line through the southeast comer of appellant’s land has been abandoned because the sewer improvement distriet had no revenue and no funds with which to build it; that because of its great cost it was impracticable in view of the location of plaintiff’s land; that because of the scanty population it was undesirable as well as impracticable. These facts, if they had been shown to exist when the decree was rendered, could not have changed the result of that decree, for admitting that they were true, they only showed that the project of building the supplemental sewer line through the southeast corner of plaintiff’s land had been abandoned after the improvement district had been formed, which contemplated as a part of the improvement the building of this supplemental line. But there are no allegations in the complaint to show that the expense necessarily incurred in the formation of the district and the laying off of the same over these lines could or would be paid without the appallant’s pro rata part of the assessment. There is no allegation to show that this assessment, or a part thereof, was not necessary to defray this preliminary cost of the formation of the district.

The allegations, in effect, are that the appellants are not, and will not be, benefited because the contemplated sewer line over appellants’ land has been abandoned. But there are no allegations to the effect that the appellants would not have been benefited by the contemplated improvement. Now the abandonment of a contemplated improvement that would have been beneficial if made as originally contemplated does not render invalid an assessment that was levied for the purpose of improvement unless it be shown that no part of the assessment was needed for the purpose of defraying the necessary expenses incurred in the preliminary work of surveying the territory and creating the district. This case is ruled in this particular by the recent case of Board of Directors of Crawford County Levee District v. Dunbar, 107 Ark. 285, where the court, speaking through Chief Justice McCulloch, said: “But it is not essential that the benefits be actually realized. Expenses must be incurred in advance of the enjoyment of benefits, and assessments must necessarily be levied upon tbe basis of anticipated benefits.” Citing Salmon v. Levee District, 100 Ark. 366. And, further, quoting from that case, ‘ ‘ The legislative branch of tbe government is, as we bave said in several cases, tbe sole judge in tbe matter of creating improvement districts of tbis character, in establishing tbe boundaries thereof, and in determining, or in providing means for determining, tbe amount of assessments based on benefits, and tbe courts will not interfere unless an arbitrary and manifest abuse of tbe power is shown. Mere mistakes of tbe lawmakers, or of those empowered by the lawmakers to make assessments, in fixing tbe amount or rate of assessments, will not be reviewed and corrected by the courts. ’ ’

While tbis was said in regard to tbe Legislature and districts created directly by it, the same principle applies in regard to agents upon whom they bave conferred power to create improvement districts in cities and towns.

Furthermore, tbe benefits to be derived from tbe supplemental line of sewer contemplated, and which tbe complaint shows to bave been abandoned, were not tbe only benefits that tbe testimony tended to show would come to appellants by reason of tbe contemplated improvement. In our opinion in thp case of Improvement District v. Pollard et al., we said there was “substantial evidence on tbe part of plaintiff showing the property received additional benefits through improved sanitation, by tbe construction of tbis sewer system in tbe proximity of defendants ’ land. ’ ’ There is no allegation in the complaint that appellants would not still be thus benefited, or that tbe sewer system in proximity to appellants’ land had been abandoned.

m tbe above case we held that “if any benefit accrued to tbe land by reason of tbe improvement then the owner is precluded at any time after tbe time given bina by tbe statute from raising any Objection thereto.” And, further, “If it appears from any substantial testimony that the property receives any benefit from the improvement,. then the assessment thereof made by the board can not be invalidated by the court, but the owner cánonly obtain relief therefrom by proceeding in the manner prescribed by the statute. In such event it can not be said that the assessment was made either ‘through fraud or through demonstrable mistake.’ ”

It follows that the bill of review fails to state a cause of action and the court did not err in sustaining the demurrer thereto and in rendering the judgment dismissing the same. Affirmed.

Kirby, J., concurs in the judgment.