Notes

court. Smith v. Goldsborough (Md.), 30 Atl. Rep. 574. And objection that a sufficient number have not joined in the petition must be made by remonstrance. Bronnenburg v. O'Bryant (Ind.), 38 N. E. Rep. 416.

The city charter of Sacramento provided that unless the owners of onethird of the adjacent property should protest against a proposed improvement within ten days after the last day of the publication of notice thereof, the council should order the work to proceed. The last day of publication was the 15th. On the 20th council passed an ordinance ordering the improvement made, which ordinance was approved on the 21st. On the 27th certain of the adjacent property owners filed a protest. It was held that the protest was ineffectual, not only because it was not filed within the ten days' limit, but because it lacked the requisite number of signatures; that the passing of the ordinance on the 20th and its approval on the 21st were of no consequence, as the council was only prohibited from proceeding with the work until after the expiration of ten days. Burnett v. Mayor, etc., of Sacramento, 12 Cal. 76, 73 Am. Dec. 518.

Where some of the landowners who signed the petition for the making of an improvement were induced to do so by false representations and false promises as to the amount which would be assessed against their lands, and by promises of one J. G. C. that he would pay all that their lands were assessed above a fixed amount, they must raise their objections before the sufficiency of the petition has been established by the adjudication of the board of commissioners. Board of Commissioners of Carroll County v. Justice, 133 Ind. 89, 36 Am. St. Rep. 528, 30 N. E. Rep. 1085: Osborn v. Sutton, 108 Ind. 443; Million v. Board, etc., 89 Ind. 5; White v. Fleming, 114 Ind. 560; Loesvitz v. Seelinger, 127 Ind. 422.

Objections that a petition has not been signed by the required number of persons must be made before the return of the viewers' report. Construing Rev. Stat. Ind. 1894, § 6880; Miller v. Burks, 146 Ind. 219, 43 N. E. Rep. 930.

Objections should be made before the beginning of the improvement or during its progress. In Indiana the sufficiency of the notice given cannot be drawn in question after the work has been done. Clements v. Lee (Ind.), 16 N. È. Rep. 799; County of Dakota v. Cheney (Neb.), 35 N. W. Rep. 211.

6. Waiver of Objections.-Want of notice of the time and place of hearing objections to the necessity for a proposed highway is waived by appearing at the hearing. Robinson v. Winch (Vt.), 28 Atl. Rep. 884; In re Washington St., 14 N. Y. S. 470.

Parties who filed objections to the improvement but did not object to the insufficiency of the notice, did not thereby waive the defect therein. State v. Town of West Hoboken (N. J.), 20 Atl. Rep. 737.

7. Authority of Council to Set Aside.—Where council has given notice of proposed improvement and a remonstrance has been filed, the hearing of which is pending, council may set aside the proceedings for irregularity, order them begun de novo, and require the filing of a second remonstrance. Clinton v. City of Portland (Ore.), 38 Pac. Rep. 407.

8. Effect of Judgment.-Where proceedings for the construction of a ditch are appealed from the board of commissioners to the circuit court for a trial de novo, the judgment of that court is conclusive on persons whose property was assessed though they neither petitioned for the improvement nor remonstrated against it. Mills v. Hardy (Ind.), 27 N. E. Rep. 618.

9. Contractor's Remedy. A recital in an ordinance that a petition has been signed by the required majority is not conclusive. And where the city begins work under such ordinance, but abandons it upon discovering the defect in the petition, it will be liable to the contractor upon an implied guaranty that the petition was sufficient. Bill v. City of Denver (Col.), 29 Fed. Rep. 344. The falsity of such a recital may be shown in an ejectment suit brought by one whose land had been sold to pay such assessments. Zeigler v. Hopkins, 117 U. S. 683; Mulligan v. Smith, 59 Cal. 206.

AHERN et al. v. BOARD OF IMPROVEMENT DIST.
No. 3 OF TEXARKANA.

(Supreme Court of Arkansas, Feb. 9, 1901.)

[61 3. W. Rep. 575.]

Public Improvements-Petition-Majority in Value-Church Property to Be Considered.*—Under Sand. & H. Dig. $$ 5324, 5329, requiring a majority in number of owners of real property within an improvement district to petition for an improvement, church property, though exempt from general taxation, and therefore not appearing as valued on the county assessor's list, should be included in ascertaining the majority in value of the property in the district, since it is liable for local improvement assessments.

Same-Church Property-Ascertainment of Value.-Church property not appearing as valuable on the county assessor's list, extraneous proof of its value may be made, in determining the majority in value. Same Majority in Value-Improvements Made Since Last Assessment. In determining whether a majority in value of the owners of assessable real property in an improvement district petitioned for an improvement, as required by Sand. & H. Dig. § 5329, improvements made on the property subsequent to the last county assessment, and before filing the petition, should be included.

Same Property to Be Excluded-Railroad in Streets.-Where a spur track of a railroad ran on one of the streets in an improvement district, but it did not appear by what title the right of way was held, nor what its value was, except that the state board of assessment valued it at a certain sum per mile, nor that such property would be benefited by the improvements, it was proper to exclude it, in determining whether a majority in value of the owners of assessable real property in the district signed the petition for the improvement, as required by Sand. & H. Dig. $5324.

Same Same-Right of Way of Water and Light Companies.—In determining whether a majority in value of the owners of assessable real property in an improvement district petitioned for an improvement as required by Sand. & H. Dig. § 5324, the underground right of way along the street of the water pipes of the water works company, the ground in which the poles of the telegraph and electric light companies stood, and the right of way of overhead wires were properly excluded.

Same Same-Public Property.-Public property, not being assessable, was properly excluded.

Same Who May Sign-Executor.-It was improper to include property belonging to an estate signed for by the executor, since he had no power to bind the heirs by such signing, though clothed with a power of sale.

Same-Same-Widow of Owner.—It was improper to include property of an estate signed for by the widow of the deceased owner, since, being only a life tenant, she was not the owner, within the statute. Same-Same-Tenant in Common.-Only one-half of property belonging to tenants in common, and signed for by only one of them, should be included in the petitioners' list.

Same-Same-Mortgagor.-It was proper to include mortgaged property signed for by the mortgagor, though a decree of foreclosure of the mortgage had been rendered, since as the mortgagor had the right to redeem, he was the owner, within the statute.

Same Same-Vendor and Vendee.-It was proper to include property sold before the presentation of the petition, and signed for by the seller, of which the purchaser had knowledge when he purchased.

Same Same-Vendee in Possession.-It was proper to include prop

*See Thomason v. Carroll, ante, p. 76, and note; also notes, 3 Mun. Corp. Cas. 8, 19.

Ahern v. Board of Improvement Dist. No. 3 of Texarkana

erty signed for by the purchaser, who was in possession and had done all that he was required to do to complete the purchase, where delivery of the deed was delayed by the vendor until four days after filing the petition.

Same-Property Improperly Excluded-Property Improperly Included -Affirming Assessment Liens.-Where in determining whether a majority in value of the owners of real property in an assessment district signed a petition for an improvement, as required by Sand. & H. Dig. $5324, property was included which should not have been, and some which should have been included was omitted, but, on deducting the amount improperly included and adding the amount improperly excluded, it appears that an excess of the majority in value of the owners signed the petition according to the valuation of the county assessor, a decree foreclosing an assessment lien for delinquent assessments for the improvement will be affirmed.

Same-Assessment Lien-Homestead.-Const. art. 9, § 3, provides that a homestead shall not be subject to the lien of a decree of any court, except for purchase money, specific liens, or for taxes. Article 19, § 27, provides that nothing in the constitution shall prohibit the general assembly from authorizing assessments on real property for local improvements. Held, that the homestead is not exempt from the lien for assessments for local improvements.

Same Objections-When Must Be Made.-Where objections to irregularities in the proceeding of the board of benefit assessments and the city council subsequent to the passage of an ordinance authorizing an improvement on the petition of a majority in value of the property owners in the improvement district were not made within 20 days. defendants are barred from setting them up in a suit to enforce the tax lien for the improvement.

Same Estimating Assessments-Value of Land-Benefits Received.Under Const. art. 19, § 27, providing that nothing in the constitution shall prohibit the general assembly from authorizing assessments on real property for local improvements, based on the consent of a majority in value of the property holders adjoining the locality affected,such assessment to be ad valorem and uniform,-an assessment for local improvements in proportion to the benefits is not prohibited; but it is within the discretion of the legislature to require such assessments to be made according to the whole value of the land in the improvement district, or according to the value of the benefits.

Appeal from circuit court, Miller county; Joel D. Conway, Judge.

Suit by the board of improvement district No. 3 of Texarkana against P. J. Ahern and others. From a decree in Affirmed.

favor of plaintiffs, defendants appeal.

Oscar D. Scott, for appellants.

Williams & Arnold and J. D. Cook, for appellees.

BUNN, C. J. This is a suit in equity, under the statute, brought to foreclose assessment liens, and enforce the collection of the delinquent assessments against certain owners of real estate in the district. The chancellor decreed for plaintiffs on the complaint, answer, and testimony in the case, and defendants appealed.

In May, 1899, upon the petition of 10 resident owners of real property in the proposed district, the city council of the city of Texarkana, in this state, organized said improvement district No. 3; and within the time required by law the clerk of said city council caused the organization ordinance to be

Ahern v. Board of Improvement Dist. No. 3 of Texarkana published as required by law, and due proof was made of the same. Within three months from the publication of said. ordinance, to wit, on the 8th day of August, 1899, what purported to be a majority in value of the real property owners in the district filed their petition before the council, under section 5324, Sand. & H. Dig., and the city council on the same day passed an ordinance as provided in said section. At the same time the council appointed commissioners to assess the benefits to accrue to the real property in the district by reason of the contemplated improvements under the act approved May 8, 1899, amendatory of sections 5333, 5334. 5335, Sand. & H. Dig., who afterwards reported such assessment. A board of improvement was at the same time appointed, under section 5324, and this board proceeded to form plans for the improvement, and to do other things required by section 5329.

The principal objection-an objection which includes several others numbered in the abstracts and briefs in the case-is that a majority in value of real property owners in the district did not really sign the petition required by section 5324. To specify the irregularities covered by this objection, the defendants say: First, that all the real property in the district was not included in the ordinance passed on the petition; and, secondly, that much of the property going to make up the majority in value was signed for by persons not competent to do so. The petition was on the valuation made by the county assessor, as appeared from his assessment list, made in 1897, for the taxes of 1898 and 1899, which was at the time the last list on file in the clerk's office. The real fact is that the county assessor had made his assessment for the taxes of 1900 and 1901 in July, -the months before; but the same had not been returned and caused to be filed in the county clerk's office at the time the petition was filed, and, of course, not when the same was signed by the petitioners, and was not filed until in September following. This state of things has created some confusion in the record. The defendants contend that, in order to ascertain the majority in value of the property in the district, all the assessable property should have been included, and that all of said property was not included, for instance, the real property of churches, which they show to have been of the value of $2,800. Church property is exempt from general taxation, and therefore does not appear as valued on the county assessor's list. By a decided weight of authority, however, although exempt from general taxes, church property is liable for local improvement assessments. The contention of the defendants is therefore sustained, and in such case extraneous proof of value is properly made. For a similar reason, the plaintiffs contend that improvements made upon real property in the district since the last county assessment, and before the filing of the petition, ought to be included; and they allege and show that such

Ahern v. Board of Improvement Dist. No. 3 of Texarkana improvements had been made within said time, upon the property of the signers of said petition, of the value of $24,650. Under this head the defendants allege that there was a spur track of the St. Louis, Iron Mountain & Southern Railway Company, which ran on one of the streets in the district for a distance of 1,000 feet, and that the track and right of way of the said railroad were valued by the state board of assessors at the rate of $2,000 per mile. It is not shown by what title or tenure this right of way was held by the railroad company, whether by lease, easement, or license; and we, therefore, cannot say that it is real property of the company, as owner, in the purview of the law, nor whether or not it is assessable as such. The statement as to the assessment by state railroad board throws no light on the question, as we cannot ascertain from it that this spur track was included in that assessment, or was intended to be included; and, finally, it is not shown that this property would be benefited by the contemplated improvements. The same, and more, may be said as to the contention for exclusion of the underground right of way along the street of the water pipes of the waterworks company, and the ground in which the poles of the postal telegraph and electric light companies are set up, and the right of way of the overhead wires, all of which seem to have been assessed on the county assessment as personal property at the power house outside the district. These were properly excluded, under the showing made. Public property is not assessable, and was properly excluded.

The valuation of the real property in the district, according to the county assessor's books, was as follows:

For 1898, $570,310. Add to this the church property, and it

In the matter of the property of J. F. Smith's estate, signed for by the executor, W. A. Williams: In Rector v. Board, 50 Ark. 116, 6 S. W. 519. this court held that an administrator is not competent to sign such a petition so as to bind the heirs. A majority of the judges cannot see any distinction between the power of administrator and an executor, although clothed with a power of sale as was the executor in this case. This property was valued at $6,600 for 1898, and $6,600 for 1899, and should be deducted from the petitioner's list. The property of the estate of G. W. Tyson was signed for by his widow.