PEYTON v. IMPROVEMENT DISTRICT No. 91. ment shall be undertaken which alone will exceed in cost twenty per cent. of the value" of the real property of the district. But that is no cause for an injunction except as to the excess. 13 IV. The fourth ground relied on in the bill involves only a mathematical calculation, and an enforcement of section 27 of article XIX of our Constitution, as its letter and spirit are interpreted in Watkins v. Griffith, 59 Ark., 344, and Rector v. Board of Improvement, 50 Ark., 116, to demonstrate that she is entitled to the relief sought. As we have already seen, the Constitution authorizes an assessment for local improvement only when it is based upon the consent of a majority in value of the owners of property in the locality And the act of the General Local im to be affected. 6. provements-Peti requisites. Statutory Assembly, 14 which undertakes to provide how that consent shall be ascertained, read in the light of the constitutional limitation, says it must be by a petition signed by a majority of the property owners. The act provides that the petition may be signed by an administrator; but as he is not the owner, and the Constitution requires consent of the owner, the Supreme Court says he cannot bind the realty, which, under our laws, is owned by the heirs, the administrator having only the right to the possession and control of it for the payment of debts.15 Judge Dillon, who is a writer of acknowledged ability and accuracy, says: "As the authority to levy taxes or to make 7. * * * exist struction of statSame-Con local assessments, does not ute. unless legislatively conferred, so it can be exercised no further than it is clearly given; and if the mode in which the authority shall be exercised is prescribed, that mode must be pursued."16 And, further, he says: "Where the improve depends upon the assent or petition of a given number or proportion of the proprietors power to * * * (13.) Fitzgerald v. Walker, 55 Ark., 148. (14) Sandels & Hill's Digest, § 5324. (15.) Rector v. Board of Improvement, 50 Ark., 116. PEYTON v. IMPROVEMENT DISTRICT No. 91. to be affected, this fact is jurisdictional, and the finding of the city authorities or council that the requisite number had assented or petitioned is not, in the absence of legislative provision to that effect, conclusive; the want of such assent makes the whole proceeding void, and the non-assent may be shown as a defense to an action to collect the assessment, ***"'17 "But where a petition of a certain number, or proportion, of the owners of property is necessary to set the machinery of the statute authorizing the improvement in motion, a petition meeting all the requirements is an indispensable prerequisite to the jurisdiction of the municipal authorities."18 "A statute delegating authority to charge property with the expense of local improvement must be strictly pursued, and any departure in substance from the formula prescribed by the statute vitiates the proceedings under it. That which the legislature has directed to be done, in such case, the courts cannot declare immaterial, and none of the steps prescribed can be held to be directory merely."19 These authorities, which have been approvingly quoted by the Supreme Court of Arkansas,20 are decisive of the question, that, until a majority in value of the property owners in the locality to be affected, petition the city council, in strict compliance with existing laws on the subject, that body has no jurisdiction over the property for the purpose of levying the assessment, and the ordinance attempting to make the levy is void. With these principles in view, how er-Signature of stands this case? There can be no reasonable contention that the names of J. S. Pollock and John E. Knight, had they affixed them themselves, can be legally regarded as expressing the consent of their wives, Mrs. Pollock and Mrs. Knight, whose names nowhere appear to either of the petitions; but who are the owners of the prop 7. Same--"Ownhusband for wife. (17.) 2 Dill., Mun. Corp., § 800. (18.) Beach., Pub. Corp., § 1180; Zeigler v. Hopkins, 117 U. S., 683. (19.) Merritt v. Village of Portchester, 71 N. Y., 309, syllabus; Matter of Pennie, 108 N. Y., 364, 373; s. c., 15 N. E., 611. (20.) See Watkins v. Griffith, 59 Ark., 344. PEYTON v. IMPROVEMENT DISTRICT NO. 91. erty. The total valuation of the property in the district is $112,400; one-half of which is the sum of $56,200. The total value of property claimed to have been signed for, including the property of Mrs. Pollock and Mrs. Knight, is $58,300, constituting a majority in value of the property in the district. But, for reasons previously expressed, their property cannot be regarded as a portion of that legally signed for. The aggregate value of their property is $4,400. Deduct this from $58,300 and it is shown that owners representing property valued at only $53,900 have consented to the assessment. This is a sum $2,300 less than the amount required to give the city council jurisdiction to ordain the second ordinance, the one levying the assessment. ordinance is, therefore, void, and the defendants cannot legally proceed further by virtue of any supposed authority conferred by it. 8. Improvement district-Ordi owners Limita The The first petition, that is, the one for organizing the district, was signed by more than ten owners of realty in the proposed district, and is in due form. The tion Petition of city council need not be inquired into now, as tion of organiza- passage of the ordinance of organization by the its functions as an ordinance are devitalized by the failure of a majority in value of the owners of real property within such district to petition the city council to levy the assessment, as provided by law, within three months after its publication.21 tion. The decree will be for the plaintiff, enjoining the collection of, or any attempt to collect, any portion of the assessment from her under Ordinance No. 577; that said ordinance be declared void; and that Ordinance No. 576 be declared inoperative now for any purpose. (21.) Sandels & Hill's Digest, § 5324. TILLAR v. HOME WATER COMPANY. J. T. W. TILLAR V. HOME WATER COMPANY. WATER COMPANIES-DUTIES OF CONSUMERS-REPAIR OF SERVICE PIPES-EXTENSION OF MAINS. 1. Water Companies-Cutting off Water-Failure to Repair Pipes— Remedies If a water company is under legal obligation to repair water pipes and furnish water to a consumer, in a case where the connection has already been made, the latter may, in equity, by a preventive injunction, stop the company from cutting off the water supply, or, if necessary, by a mandatory injunction, compel it to repair the pipes and supply the water. (Pages 208-209.) 2. Same-Duty to Furnish Water Even where the ordinances under which a water company exercises its functions fail, in express terms, to impose upon it the duty of supplying water to the city and to such of its inhabitants as bring themselves within the terms of the contract of the company, the purpose of its organization and the nature of the franchise granted impose upon it that duty. But its duties are to be measured by the spirit, rather than by the letter, of its contract. (Page 209.) 3. Same-Discrimination in Charges-What is Not-Cost of Providing Means of Water Supply— While the water company cannot discriminate in its charges, but must supply on equal terms all applicants who bring themselves within the spirit of the contract made between it and the city, this obligation applies only to the rates to be charged for water, and will not be considered as violated because of the mere fact that one consumer has to go to a greater expense than another in providing the means of supplying water. (Page 210.) 4. Same-Extension of Water Mains-"Service Pipes"-Duty of Consumer to Pay For-Construction of Ordinance The governing crdinance of a water company provided that: "Water consumers shall be charged for service pipes from the center of the street to the inside of the sidewalk." Other ordi TILLAR v. HOME WATER COMPANY. nances prescribed the means of obtaining extensions of the company's water mains, when necessary. Plaintiff lived on a street along which the company had no mains, and the evidence failed to show that steps had ever been taken to secure one. Held, that the words "from the center of the street" in the governing ordinance, refer to such streets as the water company's mains are laid in or may be laid in by order of the council. (Page 211.) Statement of case. In 1884, F. T. Vaughan owned lots 7, 8, and 9, of block 102, in the city of Little Rock, upon each of which he erected a dwelling house, and, at his expense, caused a water pipe to be extended from the defendant's underground water main in Third street, near the west curb line of Spring street, to supply water service pipes to each of said dwellings. Spring street intersects Third at right angles; lot 7 abuts laterally the north side of Third street; lot 8 is contiguous to and lies north of lot 7; lot 9 is contiguous to and lies north of lot 8. The lots are of equal size, with a frontal abutment of 50 feet each on Spring street. Vaughan, some years after the completion of the houses and after they had been fitted up with water supply from the pipe in Spring street connected with a service pipe to each of them, sold them, the plaintiff, Tillar, becoming the purchaser of lot 9, W. S. McCain of lot 8, and F. M. Fulk, of lot 7. Plaintiff moved into his house in 1888, finding it supplied with water, without knowledge of who had laid or paid for the pipe in Spring street; and he never knew until, under the influence of the excessive cold weather in February, 1899, the water in it froze and burst it at a point near the dividing line of McCain's and Fulk's property, and upon the coming of the thaw following the freeze, the water escaped and began running into the street. Defendant cut off the water from the Spring street pipe, near its main, and immediately gave notice to Major Tillar that it had been done, stating the cause thereof and requesting him to have the pipe repaired, upon notice of which the Water Company would again turn on the water from its main. The plaintiff refused to pay for repairing |