(after stating the facts).
(1-2) The requisite number of property owners petitioned for the establishment of the improvement district, specifying the purpose thereof, and a majority in value of the owners of real property within the district, petitioned the council asking that the improvement be made and designating the nature of it for the purpose of “grading, curbing, guttering and macadamizing the streets included in the district,” and the commissioners or board of improvement for the district were appointed. It was 'by the commissioners’ report disclosed that the improvements could not be made within the limit of twenty per centum of the value of the real property in the district, thereupon the character of the improvement was changed and the four districts organized, three of them for the purpose of making each a portion of the improvement petitioned for and the fourth for making sidewalks, all upon the original petition asking for the single improvement and specifying it. The property owners have the right to and must designate in their petition the kind of improvement desired to be made and the city or town council is without power to establish .a district upon the petition praying for the establishment of an improvement different from that asked or prayed for in said petition. And it is a necessary prerequisite to the establishment of any improvement district that a 'majority in value of the real property owners within such district shall petition for such improvement, designating the nature of it, and the law also provides that no single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property within such district as shown by the last county assessment. Section 5683, Kirby’s Digest. “Its purpose is to prevent improvement districts from undertaking any work which will cost more than one-fifth of the assessed value of the property therein, and whether the improvement can be made within this limit as to cost can, and must be ascertained from the outset. * * * The cost being ascertained, its comparison with the value of the real property within the district, as shown by the last county assessment, will disclose whether it exceeds twenty per centum of that value, and if it does, the improvement should not be undertaken, unless the plans can be changed to reduce the cost within the statutory limit.” Kirst v. Improvement District, 86 Ark. 21. In McDonald v. Improvement District, 97 Ark. 341, the court said: “These sections of the statute (referring also to section 5716, Kirby’s Digest) relate entirely to the matter of assessments and the limitation is placed therein as a protection to the property owners against excessive assessments. It is obvious that the Legislature meant only to limit the amount which can be assessed against the real property in the district. Neither does the city or'town council have authority to establish an improvement district for a purpose substantially at variance. with the one prayed for, nor can the commissioners in the construction of the improvement depart materially from the one designated in the petition praying for and the ordinance establishing the district.” Watkins v. Griffith, 59 Ark. 344; Kraft v. Smothers, 103 Ark. 269.
After the commissioners reported that the improvement prayed for and designated could not be constructed within the cost of twenty per centum of the assessed value of the real property within the district, as limited by the statute, it should have been abandoned ’and the council was without authority to authorize the establishment of a district for the purpose of making only a part of the improvement prayed for in the original petition that contemplated the entire improvement designated should be made and, certainly without authority to create other districts upon such petition for the purpose of constructing different portions of the improvement prayed for and designated in the original petition. It was the evident purpose of the statute to permit those desiring improvements made to designate the nature of the improvements to be undertaken for which the district should be organized, that the whole improvement should be seen from the beginning and that the cost of it should not exceed the amount fixed by the statute. The manifest intention of the law authorizing those who desire their property assessed for the purpose of making a designated public improvement and limiting the cost of such single improvement for their protection, as well as of all those who are required, to pay, whether the improvement is desired, by them or not, can not be evaded by splitting the entire improvement prayed for by the petitioners into separate sections or portions, and authorizing and establishing districts for the making of each portion that the single improvement undertaken may be within the cost limited by law. All the ordinances for the establishment of the different districts were without authority and void, and likewise the action of the commissioners thereunder. It is contended, however, that appellant is estopped to dispute the validity of the different improvement districts and escape the payment of the assessment levied therein on account of having received the benefits of the different improvements already constructed, and because of the instrument executed by her after the legality of the districts were questioned, waiving all irregularities in their formation, and guaranteeing the payment of all of the assessments levied for the construction of the different improvements. We do not agree with this contention. Improvement districts are creatures of the law and can not be created by consent, waiver, estoppel, nor agreement of the property owners. ” They are governmental agencies, deriving their powers directly from the Legislature and can exercise no powers, perform no duties nor incur any liabilities except by authority conferred upon them expressly by statute. Board of Improvement Sewer District v. Moreland, 94 Ark. 381; Lewis v. Rieff, et al., 114 Ark. 366.
The property owner has the right to rely upon the protection afforded him by the statute and to expect the organization of improvement districts in cities and towns and the levy and collection of assessments against his property in accordance with and as provided by law, and he is not estopped to deny the validity of any assessment against his property where the improvement district has failed to secure the power to make the levy in not complying with the terms of the statute authorizing- its creation as in this case. Here the defects complained of are not mere irregularities in the exercise of powers conferred upon the district but consist of failure on tbe part of the board of improvement to secure the power to make the improvement through the necessary prerequisite, the petition of the majority in value of the property owners of the district, and the appellant is not estopped to challenge the power of the district and the validity of the assessment because she has stood passively by and seen the improvement go on and paid all prior assessments levied against her property. Watkins v. Griffith, 59 Ark. 344.
Those interested in the- collection of the assessment as compensation for the work done in making the improvements can not be said to have relied upon her acquiescence in the creation of the district since they knew in making the contracts with the board of improvement that they were dealing with a governmental agency without powers, except as expressly conferred by statute and whose authority they were bound to know. Neither was she estopped to deny the authority of the district, nor the validity of the assessments by reason of the execution of the said waiver and guaranty, since improvement districts are not created nor liabilities for assessments fixed, by estoppel, as already said. By the terms of this agreement or equitable mortgage she at most bound herself to the payment of the future assessments, specifying them in the amount limited therein with a lien against her property to secure the payment, and the extent of her liability is fixed by the instrument executed. When the improvement was constructed or finished and the moneye expended therefor upon the faith of her agreement, her right to successfully challenge the validity' of the assessments levied by the district does not release her from the terms of this agreement nor relieve her from the payment of the amounts as agreed upon therein, but her failure to pay as and when agreed only subjects her property to the payment of the amount agreed to be paid and the usual cost for proceeding against it in the collection, and does not include any penalties or attorneys fees, there being no agreement to pay them. In other words, her liability is fixed by the terms of the agreement and mortgage executed by her and not by the statute relating to the collection of delinquent assessments in improvement districts.
Mr. Auten, one of the members of the alleged board of commissioners, testified that the contract was made with them for the purpose of borrowing money from the trust company to construct the improvement. Therefore they as individuals could bring a suit to recover on the contract and the additional designation of ■ themselves ia.s commissioners is mere surplusage. The contract in question was introduced in evidence and its execution was admitted. The proper parties were before the court and the pleadings may be considered amended to conform to the proof. It is true the trust company was not made a party. It was a proper but not a necessary party. It knew that the contract in question had been made with Auten and others for its benefit, and would be bound by the decree.
It follows that the court erred in its decree which is reversed and the cause remanded with directions to consolidate the suits and to render judgment against the appellant herein for such sums of money as are due under the terms of the mortgage agreement with the foreclosure of the lien and the cost only of one suit for that purpose.
McCulloch, C. J., and Smith, J., concur in the result.