964 WOOD V. TOBIN. [193 WOOD V. TOBIN. 4-4614
Opinion delivered April 19, 1937. 1. TAXATION—SPECIAL ASSESSMENTS.—An action to set aside assessments of improvement district betterments instituted more than 30 days after approval of the assessments is a collateral attack, and not maintainable. 2. HIGHWAYS—STATE AID TO IMPROVEMENT DISTRICTS.—State aid extended to improvement districts located on a designated state highway is for the benefit of the property owners of the entire district, whose property was assessed to pay for the improvements included in the state highway. Act No. 11 of Special Session of 1934. Appeal from Sevier Chancery Court ; Pratt P. Bacon, Chancellor ; .affirmed. B. P. Arnold and E. F. Friedell, for appellant. Minor W. Milwee, for appellees. GRIFFIN SMITH, C. J. Property of appellant in the city of DeQueen is embraced within Paving District No. 1. Appellant cites the act under which the district was created, which provides that taxpayers aggrieved because of assessments of benefits may appear before the assessing board for adjustments and reductions, but alleges that, since 1931 to and including 1935, there has been no acting assessing board. For this reason appellant says that he has been denied the right to appear and petition for adjustments, and to ask for relief to which he is entitled.
ARK.] WOOD V. TOBIN. 965 He further alleges that the assessed property is located on a designated state highway; that :under the provisions of act 11, approved February 12, 1934, refunding certificates of indebtedness were issued covering obligations created by act No. 8 of 1928, act No. 248 of 1931, and act No. 85 of 1931 ; that by act 11 of Special Session of 1934, the district was entitled to and received $104,417.40 in bonds ; that the commissioners have misapplied such fund in that pr.operty on streets embraced within Paving District No. 1, but not connected with the state system, has been - relieved with . state aid money that has been applied as a credit on property touching designated state highway continuations. There was a demurrer to the complaint, a motion to set aside the demurrer, an amended complaint, a demur-rer to the amended complaint, and- an order sustaining the demurrer to the amended complaint. This court has frequently held that an action to set aside assessments of improVement district betterments, prosecuted in the manner adopted by the appellant here, is a collateral attack. Chief Justice MCCULLOCH, speaking for the court in Lewellyn v. Street Improvem6nt District of Russellville, 172 Ark. 496, 289 S. W. 470,- said : " The assessment of benefits in the annexed territory was duly made and notice Of the date of hearing given, pursuant to statute. Crawford & Moses ' Digest, § 5668. This action was instituted by appellants more than thirty days after the approval of . the assessinents ; therefore the attack upon the validity of the assessments is collateral. ' In direct attack upon the validity of assessments, it becomes a question of proof : whether or not the assessments are. correct, but in a collateral attack we must indulge the presumption that the assesSors considered all the elements of enhancement of value or detriment which might result from the improvement, and.the court is not at -liberty to disturb the findings of the . assessors, unless the " assessment is demonstrably erroneous on its face." In Smith v. Grabiel, 177 Ark. 611, 7 . S. W. (2d) 13, in a per curiam. opinion, the . rule announced supra was upheld, under the following syllabus : -"A
966 WOOD V. TOBIN. [193 suit in equity against the commissioners of a street improvement district attacking the assessment of benefits for a street improvement commenced more than-thirty days after notice of the filing of the assessment, as required by § 5668 of 'Crawford & Moses' Dig., held a collateral attack, and. not maintainable." There are numerous decisions to the same effect. The law is definitely -e'stablished contrary to appellant's theory. . The contention that financial relief extended' by the state should be 'used as a" credit againSt assessinent of betterments for the . benefit of • taxpayers whose property is on or contiguous to continuations of state highways, to the. exclusion of other taxpayers in the municipal improvement district, is likewise untenable. • In Jackson v. Foster, 192 Ark. 712, 94 S. W. (2d) 113, appellees, taxpayets within Paving District No. 1 of Bentonville, 'sought a. restraining order to prevent the commissioners frem discriminating against . property .owners. After reciting the agreed statement o'f facts, the court said : "There is only one question for our consideration, and. that is' whether the fund received -by the commissioners. of the district from the state is for the benefit 6f those property owners whose property jeins the state : highway, or whether . it is for the benefit of the property ownerS of the entire district, whose property was assessed to pay for the improvenients . included in the state highway •* *. The •statute itself not only rirovides that the money Shall go to• the 'district, but it would be inequitable and unjust to pay the owners of a portion of the land in the district, and -not pay other persons whose . property is assessed to- pay for the improvements:. It was manifestly the intention of the Legi:slature to protect and assist the-property owners of the improvement district, and the' intention that each property owner should benefit in proportion to the assessment 'on his property. The indebtedness of the district is an obligation and lien against all the property in the district, :and 'not simply against the' property adjacent to' the state highway." •
ARK.] 967 These decisions are conclusive Of contentions made by appellant. The action of the court in sustaining .the demurrer is affirmed.
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