0 266 - HUNT V. ROAD IMP. DIST. No. 12.-1168 HUNT . V: ROAD IMPROVEMENT DISTRICT No, 12. 1 Opinion delivered March. 23, 1925. HIGHWAYS—GROUNDS • FOR SETTING ASIDE ASSESSMENTS.—Where • plans were formed, benefits assessed and money borrowed for a road improvement, the fact that the anticipated benefits were not realized or that the available funds were insufficient to complete the . improvement does not afford grounds for cancelling the assessments . which Were made and taxes thereOn levied to pay outstanding obligations. 2. HIGHWAYS—IMPROVEMENT •DISTRICT—REASSESSMENT. —ID a suit by taxpayers against a road improvement district to cancel assessments, and eliminate plaintiffs' lands from the district, wherein plaintiffs did not ask for a reassessment nor state facts suffi-dent to show the necessity for a reassessment in conformity with
ARk. ] HUNT V. ROAD Iip DIST. No: 12. 267 statUte; a decree o' rdering a' reasseiSment 'béhefit's held • . -unWarranted. , . ..•. 3: HIGHWAYS-REASSESSMENT WARRANTED wHEN.: —Under the statute • creating a road improvement "clistriO; a reassessment . :of the • benefits assessed in a road improvement district is not justified unless it can be rn • ade without diminishin . g the total Umount of , • . assessments. „ Appeal from, Woodruff , Chancery . ,Court, Southern District ; A. L. Hutchins, ,Chancellor ; affirmed... Jonas p- Dyson, for appellant; . W. J. Dungan, for appellee. ,lgoCu . LLocn, C., J. This appeal involves two consolidated actions in the chancery _court . of „ ;Woodruff Countyl—one instituted by appellee, road improvement district against pertain delinquent taxpayers to:,enforce taxes on , betterments, and the other . .instituted , by certain other taxpayers to restrain the road district from attempting . to enforce assessments, and , praying, , also for a . decree, canceling the. assessments ; on their ;lands. In both cases there is an effort to cancel the Assessments of benefits on the alleged; ground tliat the part nf , the road to be improved contiguous to the ,lands of appellants was not in fact improved at all, and that, on account of, the omission to . compete the improvement as , origi:- nally ,planned, the lands of appellants will, receive no benefit. ' The two cases were, as before stated;IcOnsoli-dated; and heard by the chancery cmirt as one case upon the following agreed statement of facts "That Itoad , IMproVement District 'No:42 of WOod-ruff County was created under act 402 of the 'General Assembly of 1919. That, 'pursuant to the kuthoriti contained in the act, the board of . commissionersof 'said road district prOceeded to assess 'the benefits te 'the lands embraced in the . district 'that 'Weill& accrue , by reason of the improvenient coriténiplated in . ;the" act. That the lands described in the complaint are' embraced in the district, and the benefits , alInged;in‘ the' edmplaint were assessed in the araounts'and-for the years harried in the Complaint. That thereafter 'a tax levy . Was made 0
268 HUNT V. ROAD IMP. DIST. No. 12. [168 by the county court of Woodruff County on said land, and taxes thereafter were collected as alleged in the complaint, in the amounts, or at the rates, and for the years as alleged. That the said assessed benefits above described constitute a lien on all of the lands in the district. That, pursuant to the authority contained in act 402, the board of commissioners issued and sold to third persons bonds of the district in 'the sum of $585,000, these being interest-bearing bonds, the interest on same maturing semi-annually. That of said bonds $545,000 are now outstanding and unPaid. That the benefits assessed on the lands• stand as seCurity for the payment of said indebtedn,ess. The total assessed benefits as filed by the board of commissioners in Road Improvement District No. 12 of Woodruff County is $979,590.37. "We further agree that the board of 'commissioners undertook the construction of the road' and laterals provided by the statute, and spent all' of the money derived from the . sale of the bonds above mentioned in such construction, but said board did no work toward the construction of that' part of the road described in the complaint as 'beginning at the intersectiOn of the old Military road with the St. Francis and Woodruff County lines and running in a southwesterly direction to the town of Hunter, in section 17, township 5 north, range 1 west,' and agree that the•construction .of said part of the road is not under contemplation by the board of commissioners. That the engineer's work was terminated and his connection with the board of .commissioners ended on July 1, 1922..". • The court found against appellants as to the validity of the assessment of benefits, and denied relief- by Can-. cellation, and, on the contrary, decreed the enforcement of the delinquent taxes, and also decreed that the commissioners should make a reassessment of benefits in the district, pursuant to the statute creating it. Road Acts, 1919, vol. 2, p. 1693. Appellants have duly prosecuted an appeal from that part of the decree refusing to cancel the assessments and enforcing the liens •for
ARK.] HUNT V. ROAD IMP. DIST. No. 12. 269 delinquent taxes, and appellee has cross-appealed from that part of the decree ordering a reassessment. We ate of the opinion that the chancellor was correct in refUsing to cancel the assessments and in enforcing delinquent taxes. The only ground upon which appellants base their claim is that the funds borrowed for the construction of the road have proved insufficient to complete the improvement. This does not, however, afford legal grounds for setting aside the assessments. It is not contended that the statute was not 'complied with as to the formation of plans for an improvement, to cost not exceeding the amount of .the benefits, but, on the contrary, it is admitted that the plans were formed and benefits were assessed andmoney was borrowed, and that. there are outstanding bonds. The fact that l ,the anticipated benefitS were not realized from the improvement or the fact that the available funds were insufficient to complete the improvement does not afford grounds for cancelling the assessments which were made and taxes thereon levied to pay outstanding obligations. • Salmon v. Board of Directors, 100 Ark. 366; Road Improvement District v. Morris, 153 Ark. ,635. Counsel for appellant relies on the decisions of this court in Phillips v. Tyronza.c0 St. Francis Road District, 145 Ark. 487, and House v. Road Improvement•District, 158 Ark. 263. In the Phillips case, supra, there was an attempt to change the plan by eliminating a lateral road provided in the statute as a part , of .the authorized improvement, and we held that there was no authority to thus change the statutory plan and depart from it. In the House case, supra, the same principle was announced. In the present case there was no change of plan—no attempt at substantial departure from the statutory scheme—but there was merely a failure to complete the improvement according to plans. It there had 'been an attempted departure from the terms of the statute, landowners had the right to prevent the issuance of *bonds
I ( i f .270 HUNT V. Ro4n, IMP. DIST.,No. 12. [168 and the levy . of assessments, as •in. the _Phillips. case, ) :supra, but that was not done. - 04 the contrary, under t . he plans adopted, a g es..rn.enfs, were, , leyied, money was , ) borroWed and bonds iSsiied. No relief can be afforded merely b . e canse the' funds proved to be insufficient. . t Our conc ; lusion, howe - ver ' , . w ith respetc to 1 t he ,. other ( feat , i , k e of the case is that the,courterred i . n : ordering a ? r'easSessthent. There were no ,sufficient .grounds,shown ) ) 'i , n th e' IS e f a d ig n _ S or the proof ' for such a, decree. The f sole efforts of ,appellants:in the present Rigat:ion ,w .e,re i 1 :td'eaiicer the asSessMents : and eliminate their,lands` from the :district. they did not' ask fOr a reassessment, nor atd thq sfato fa,cts 'sufficfq 4 t , io 'show that: a reassessment i ghoul ld be Made in cOnfortnity'With the statute;, that is io saY,''a reassesnient which' Would nOt. diMinish tfi e total inieitia 6f benefitg as originallY:asSesSed... ' ' The sta'tnte epresSly 'forbidS a cliMini g iing of 'the total:amount of aSSesSinents, and, unless there are . tcts s ' tated suffieient to jiiStifY granting 'relief' withOiii diMi , ni . Shin , g . the a s.ess- "MeritS,-there are 46 grounds . for ordering a reasSessment. - , ounselo . r a li , ppe ants rely on the decision of this lebnrt-in Rohd'Imbrot . eineiii hi;striCt • y. M 9 ms, supr . a, ) ljut we . do hot 'think' that the case §.6pipo'rt§' that -View.:In f that case the action was brought for the expresSliurpose \ -of i compelling' . the board of cothrdissiOners ' to" 'Make a ,reasseSsmenf pursuant to statute; '-and it ';was alleged that -deniand . ha• been. made on the' comiSSioners ' fOr 1/1 that purpose, and refused:. The question. decided *as +whether or not the chancery' court had jurisdictiOn•to ; order: a'reassessinent; and 'the coUrt , ansWere'd that'qUestion in theLaffirmative. There is no , question here about .the jurisdiction of the: court, but :the difficultyls that 1 .the court exercise& jiirisdiction' and granted -a decree .compelling. a reassessment without a. showing; of : suffi- ;dent facts to justify it. '. . ' That.part of the decree ordering a -reassessment ,is therefore reversed, sand the remainder of the decree , is affirmed.. The, cause will be remanded, with directions _to enter a decre9 in' accordance with, this opinion., It , is ,t so ordered. i
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