#### Arkansas-Missouri Power Company v. Light & Power Improvement District No. 1.

Opinion delivered May 18, 1925.

1. Municipal corporation — departure from plans of improvement. — Where the- engineer of a light and power improvement district concluded that an engine of less capacity in power would be sufficient for use in operating- the plant, a change of the plans after the -assessment of benefits wias made by reducing the capacity of the engine did not constitute a departure from, the general plans formed by the commissioners of the- district in the first instance.

2. Municipal corporations- — injunction against construction op improvement. — The owners of property in an improvement district may restrain the commissioners from entering on the construction of an improvement district when the funds will be insufficient to complete or pay for it.

Appeal from -Clay Chancery Court, Eastern District ; J. ill. Eutrell, Chancellor;

affirmed.

Little, Buck d> Lasley, for appellant.

W. E. Spence, for appellee.

McCulloch, C. J.

An improvement designated as Light & Power Improvement District No. 1 of Piggott, Arkansas, was formed in the city of Piggott for the purpose of constructing and putting into operation an electric light plant. The* district was properly formed by ordinance of the city council, enacted on petition of owners of property in the district. A second petition asking for the construction of the improvement Was signed by a majority in value of the owners of property, and, after the appointment, of the commissioners by the *883city council,. plans were formed and benefits were assessed.

it is conceded in tfie present litigation tfiat tfie sum of $o2,»0U is tJae maximum amount wfiicfi can be legally spent for tfie construction of tfie improvement, and in tfie original plans and estimates tfie sum of $32,384 was fixed as tfie estimated cost.

Appellant is tfie owner of real property in tfie district, and instituted this action against tlie commissioners of tfie district to restrain them from proceeding with tfie construction of tfie improvement, alleging that tfie cost would exceed the amount wfiicfi could be spent and collected in taxes on the benefits. Tfie case was heard by tfie 'chancery court on oral and documentary evidence, and the court refused to grant relief. There was, in other words, a finding in favor of tfie appellees on tfie issue as to tfie cost of tfie construction of tfie improvement. There were numerous witnesses, and tfie testimony was conflicting, but we are unable to discover tfiat the preponderance of tfie evidence is against tfie finding of tfie chancery court. Tfie evidence adduced on the part of appellees tends to establish the probable cost of the improvement at not exceeding $31,552, and that it may cost less than that. The testimony introduced by appellant tends to show that the cost would be about $35,000. We conclude, as before stated, tfiat the finding of the chancellor is not against tfie preponderance of the evidence, and it will therefore not be disturbed.

It is also contended that tfie commissioners of tfie district exceeded their authority in changing the plans after the assessments of benefits were made. The only change made, as we understand the evidence, was in the reduction of the capacity of the engine. The evidence shows that the engineer of the district concluded that an engine of less capacity in power would be sufficient for use in operating the plant, and this change lessened, to some extent, the cost of tfie improvement. We do not think that this change in the plans was sufficient to con*884stitute a departure from the general plans formed by the commissioners in the first instance, and an engine of any size sufficient to operate the plant was within the scope of the plans. The owners of property in the district have the right to restrain commissioners from entering upon the construction of an improvement when it is shown that the funds will be insufficient to complete it or to pay for it, hut the proof in the present case is not sufficient to warrant relief.

Decree affirmed.