Rogers v. Semmes , 123 Ark. 467 ( 1916 )

Wood, J.,

(after stating the facts). Sewer District No. 1, in the city of Osceola, was created under section 5683 of Kirby’s Digest, which provides, among other things, that “no single improvement shall be undertaken which alone will exceed in cost 20 per centum of the value of the real property in' such district as shown by the last county assessment.”

(1) The outlet for the sewer system contemplated' by the creation of Sewer District No. 1, which was the same work contemplated by the creation of Sewer District No. 2, constitutes but' a single improvement. The two districts were coterminous, embracing the entire city, and if they had been created for the purpose of making two district improvements, both districts would be valid, although the aggregate cost of both improvements exceeded 20 per cent, of the value of the real property in the district. Crane v. Siloam Springs, 67 Ark. 30. But, under the facts set forth in the answer and conceded by the demurrer, it appears that Sewer District No. 2 was organized for the purpose of completing the same work, or part of the same work, for which 'Sewer District No! 1 was created. Both districts therefore contemplated, under the law, but a single improvement, and inasmuch as the cost of such improvement would exceed 20 per cent, of the assessed value of the real property in the districts, the improvement contemplated by such District No. '2 can not be undertaken, and an assessment to pay for the work of such improvement would be void, under the provisions of the above section.

This court, in Fitzgerald v. Walker, 55 Ark. 148-159, held that where money is borrowed to make the improvement and interest is stipulated for, it becomes a part of the cost of the work,-and that the principal and interest necessary to be paid in order to complete the improvement, must not exceed 20 per centum of the assessed value of the property in the district. See also, Oliver v. Whittaker, 122 Ark. 291.

In 1913 the Legislature amended section 5683 of Kirby’s Digest so as to provide that “in determining what shall be 20 per centum of the value of the real property in the district, interest upon borrowed money shall not be computed as part of the cost.” Act 125, Acts of 1913, p. 527-530. This act was held valid in Oliver v. Whittaker, supra.

(2) Improvement districts are creatures of thej statute. No authority can be found in the law for the creation of two improvement districts embracing the same territory for a single improvement. No such authority is conferred by the act of 1913, supra. The old law was not amended by this statute so as to bring it within the power of the city council of Osceola to create two improvement districts for one and the same improvement.

The law was not intended as a curative statute and to validate the creation of districts and assessments for the making of improvements the cost of which, including principal and interest, on the bonds, would exceed 20 per cent, of the assessed value of the property in these districts; nor did the lawmakers intend to authorize the creation of an additional improvement district embracing the same territory of a former district for the purpose of completing or carrying out the project contemplated by the creation of the former district, nor for the maintenance and repair of the improvement of the district already created. The facts set up in the 'answer show that the improvement contemplated by the creation of District No. 2 was but a completion and repair of the work that had been done by District No. 1. The law makes provision for the maintenance and the keeping, of improvement districts in cities and towns in a good state of repair. ■ Act 245, Acts of 1909, p. 742.

Improvement District No. 2 was therefore created* without authority and is void, and appellants had no power to make the improvement and assess the property of the appellee to pay for same. The decree of the chancellor restraining them from so doing was correct, and it is affirmed.