Steele v. Buchanan , 149 Ark. 91 ( 1921 )

Smith, J.

(on'rehearing). Appellees have filed a petition for rehearing and for a modification of the opinion. It is insisted that the levy of any tax in sections 1 and 3 was premature, and therefore unauthorized. This question was considered on the original submission, and we adhere to the view that sections 1 and 3 had the authority to collect a sufficient tax to pay the preliminary expenses incurred by those sections.

We are also ashed to modify the opinion so as to relieve the property owners in sections 1 and 3 from any liability except their proportional part of the preliminary expenses. The insistence is that the act of 1919 divided the territory of district No. 2 into five sections, and that the preliminary expenses were incurred in the name of, and for the benefit of, all these five sections or districts, and that these expenses should be apportioned among all these districts, and it is asserted that the effect of the opinion herein is to hold sections 1 and 3 liable for expenses which inured to the benefit of all five sections.

No such result was intended by us. We do not undertake to say what items are properly chargeable as preliminary expenses against any of these sections, as that feature of the case was not fully developed or passed upon by the court below. Nor have we undertaken to apportion these expenses.

It is said there are certain general expenses which inured to the benefit of all five sections .of district No. 2, and that certain other expenses were incurred .for the separate benefit of particular sections of district No. 2. Of course, those expenses which were for the common benefit of all five sections of district No. 2 should be borne by all of them and should be paid just as the cost of the improvement would have been paid had it been constructed as is provided in section 20 of the act. Special expenses for the special benefit of particular sections should be borne and paid by that section, just as the cost of the improvement local to that section would have been paid had it been constructed.

These equities must be worked out on the remand of the cause.