892 STREF;:r IMF. DIST. No. 74, BHOIVNING ET AL., [192
COMMRS. V. REFUNDING BOARD OF ARKANSAS. •• STREET i[M] ROVEMENT DISTRICT No. 74;BR0INNING,,ET.:AL,; _COMAIRS.-T. REFUNDING BOARD .OF ARKANSAS. .4-444 ; 00.11,4111.0clivered 311,111e . 22, .1W. • .
MANDAMUS.—Since the:RefUnding Bódid, in refunding State'ana rOad • • 'district obligations,- is 'acting under •statutes that cOnfer power; •,- but impOse no,absolUte duty, mandanius will not lie to require the board to yefund street improvement district's claim. 'under Acts 1 .931,:p. 2 . 47, and Acts 1934, 2d Ex. Ses„ p, 28, discretion is involVed in determining its duty. . • Appeal-from Pulaski Cireilit COUrt,- Second Division ; Richard M. Mann, Judge ; .affirmed, . • Murphy 0.0(1 and Robert L. Rogers, 11, for appellant. . „ . . Carl E. Bailey, Attorney. General„ and Wolter. L; Pope,. for appellee. . • MCHANEY.,-' J. Appellant, .Street Improvement Dis-triet No'. 74, of the city of. Hot Springs is a municipal improyement district, created .by ordinance .of said eity, and the individual a.ppellants ,are .its board -of .improve
ARK.] STREET hiP. Dist..No. 74, BROWNING ET . AL., 893 • COMMIS: V. REFUNDING BOARD OF.ARRANSAS. ment. •Said district 'was created for the. purpos& 'of grading; draining, curbing, guttering and paving HobSon Avenue• in said 'city from Central Avenue to . SumMer Street, Summer Street froth Hobson . to ; Albert Pike ROad, and the latter Trom Summer to the west boundary line of the • itY, It constrncted said improvements in 1925'. In 1927 the State High-Way 'Commission designated the folloWing portiOns of streets improVed by said district as a part; of State highways : Hobson-Avenue:and Third Street to :Summer Street, the latter from HobSon to-Albert 'Pike Road, and the : last froni Summer Street to the west:city limits, as a part or continuation of State highway No: 70, and . .alSo as a part' or continuation. of State . highway •No. 6 (new No. 270). Acting pursuant to the provisions Of act* 85 ' Of the Acts. of 1931, the Highway . 'Commission issued and delivered , to said district certifiCates of indebtedness as followS : No. for $2,117.62 ' due .0cteher 15', 1931, which , Was paid; No. 2 for $2,673.08 due OctOber '15, 1932; and No. 3 for $1,335 due October ' 15,:103..,•Nes: and 3 . .haye not • been paid Appellants ,Presented:4.i.q unpaid certificates of indebtedness tO appellee . for funding nnder the provisions of act No. 11. ef. 1934, ar , id a TeSelution was adopted - -Le refund. theM.: Later; .howr ever , , appellee rescinded its order to refund sathe,.. and noW refuses to do SO. , , This action:was:instituted to„compel by mandamus: the issuancof refunding. certificates of indebtedness to take up said two certificates of indebtedness,ontsta0- ingTo , a complaint alleiing:the„ahove facts, and an amendment thereto alleoing that the board had refunde . d other certificates of iniehtedness, and, although it is..the eNPress duty, of the board, soto:,dO, it has .arbitrarily-ye.-, fused to refund same, a .deinurrer, waS interpOsed,a0 snstained: tpon; appellants '. declining to plead further; their, complaint was: dismissed, and , this appeal . follow4 • .It is -conceded that appellee .has the power and :all-thority to .refund these , obligations . . Sub-sectiOn .(d).:of § 2; -§§ 11 and 1.2 of Said act. NO. 11 of:the AetS :of 1934 so provide. The: question:is Has the board any „diA-: cretion hi the premises,. Or . is it .a mere ministerial duty
894 STREET IMP. DIST. No. 74, BROWNING ET AL., [192 COMMRS. V. REFUNDING BOARD OF ARKANSAS. • which may be controlled by mandamus? Section 12 of said act 11 reads in part as follows : "Refunding certificates of indebtedness are hereby authorized to be issued in exchange for, and ut an amount not exceeding the aggregate of the outstanding valid certificates of indebtedness issued Under act No. 8 of the General Assembly, approved OCtober 3, 1928, and act No. 85 of the General Assembly, approved March 3, 1931, together with the accrued interest thereon to January 1, 1934, and the amount reported to the refunding board under § 11 hereof. Said refunding certificates of indebtedness shall be negotiable, direct, general obligations of . the State, for the payment of which, principal and interest, the full faith and credit of the State and all its.resources are hereby pledged." It will be noticed that the language LS: "Refunding certificates of indebtedness are hereby authOrized to be issued," etc. This is language conferring power,'bUt not imposing an absolute duty.. Discretion is involved in determining its duty, and mandamus will not lie to com-penhe performance of a discretionary duty. We so held in the recent case 'of Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S. W.' (2d) 917. We there said: "The board is . required in fhe charge of its duties, not only tO weigh and deterinine facts, but to expound the various provisions of the law under which it operates, and the board's judgment in these respects is nOt 'subject to control by mandamus . or injunction." Citing cases. In that case, § 15 of aCt 11 was involved, and, for this reason, appellants attempt to distinguish it froin this, since their reliance is based on § 12. While § 15 refers to a different subjeCf-inatter, it confers aUthority to refund in substantially the saine. language : "The refunding board is hereby authorized," etc. So it appears to us that the attempted dis: • tinction is without merit, and that said case is concluSive of this. Some argument is made that the board acted arbitrarily in the matter, and that, even though it is vested with discretion, its action in refusing to refund these certificates is an arbitrary abuse of discretion. The amendment to the complaint alleging arbitrary ac-
ARK.] 895 tion is a mere conclusion, of the pleader, and no facts are alleged to show arbitrary action. It is alleged that the board has refunded other certificates. Even so, it may have refused to refund others. . The, trial court correctly sustained the demurrer, and its judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.