Kraft v. Smothers

Decision Date08 April 1912
Citation146 S.W. 505,103 Ark. 269
PartiesKRAFT v. SMOTHERS
CourtArkansas Supreme Court

Appeal from Pulaski Chancery Court; John E. Martineau Chancellor reversed.

Decree reversed, and cause remanded.

Moore Smith & Moore and Thos. T. Dickinson, for appellant.

1. The authority to levy taxes for local improvements has its origin in the principle of local self-government. 67 Ark. 30.

The filing of the petition of ten property owners being mandatory and jurisdictional for the protection of property owners, the city council has no authority to form an improvement district until such a petition has been filed, nor to create any district except such as is requested in the petition. 71 Ark 561; 59 Ark. 344, 356-7; Kirby's Dig., § 5665, as amended by Acts 1905, p. 300.

2. The assessments and penalties in this case are illegal and void because the ordinance provided for improvements beyond the limits of the proposed district. 52 Ark. 130.

J. W. & J. W. House Jr., for appellees.

The city council has not attempted to direct the construction of the sewer beyond the city limits, as alleged; but the conducting of the effluent beyond the city limits from the septic tanks through pipes into Fourche river is only an incident, and necessary to the establishment of the sewer district within the city limits as shown in the petition. The city council has the right and the power, whether granted expressly by the statute or not, to require that the effluent from the septic tank be conducted to some point beyond the city limits if, in its judgment, the health of the citizens requires it. 111 F. 972; 98 Am. St. Rep. 133; 83 S.W. 583; 138 Ill. 295; 140 Ill. 216; 147 Ill. 113; 36 Mich. 474; 20 Abb. (N. C.) 131; 53 Am. St. Rep. 191, 112 Cal. 159; 39 Am Rep. 135; 142 Ind. 123; 110 Mass. 443.

When there is a question of discretion, the action of the city council is conclusive. 204 Ill. 456; 162 Ind. 399; 33 Mass. 442; 87 Mich. 439; 58 N.E. 551.

OPINION

HART, J.

This action was instituted in the chancery court by the plaintiff, L. S. Smothers et al., constituting the Board of Improvement of Sewer District No. 67, to enforce the payment of an assessment upon the property of C. L. Kraft situated within said district. The defendant, Kraft, filed an answer, subdivided into four separate paragraphs, in which he claimed that said assessments are illegal and void. The plaintiff demurred to the answer; the demurrer was sustained, and, the defendant declining to plead further, a decree was rendered in favor of the plaintiffs, and the defendant has appealed.

Counsel for the defendant contends that the assessment on his lots described in the complaint is illegal and void, (1) because ordinance No. 1667 of the city of Little Rock, passed March 27, 1911, creating this sewer district, was not in conformity with the first petition of ten or more property owners praying for the establishment of said district, in that the first petition asked the city council to lay out the property in said petition described, being the same property that is described in said ordinance, into an improvement district "for the purpose of building a sewer system therein, and making proper connection of the same into the system of septic tanks, and that said ordinance created and established said sewer district for the purpose of constructing a sewer system and making proper connection of the same into a system of septic tanks and conducting the effluent through standard sewer pipes into Fourche River;" (2) because said ordinance 1667 provided for an improvement beyond the limits of said improvement district, in that it provides for the construction of standard sewer pipes from the septic tanks to Fourche River, and it will be necessary for the Board of Improvement to construct a sewer main outside of the district for the distance of a mile or over; that the board is not authorized to undertake to make an improvement, or to expend money therefor outside of the district as established by the city council.

An outlet to a sewer system is an essential part thereof; and the Legislature, realizing that, in the proper construction of a sewer system, it will sometimes be necessary to go outside of the limits of the city or district in which the sewer is situated to...

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32 cases
  • Sanders v. Wilmans
    • United States
    • Arkansas Supreme Court
    • June 25, 1923
    ...even purport to be a curative act, as in 145 Ark. 438; 134 Ark. 30. Roads built outside of district. Rector v. Board of Imp., 50 Ark. 116; 103 Ark. 269; 131 Ark. 60, have application here. Sixth ground of appeal to which demurrer sustained not a collateral attack upon judgment creating dist......
  • McMurry v. Kansas City and Thomas Kelley & Son
    • United States
    • Missouri Supreme Court
    • June 26, 1920
    ... ... Mun. Corp. (5 Ed.), sec. 776; 3 Dillon Mun. Corp. secs. 1148, ... 1028, and notes; Land & Imp. Co. v. City of ... Billings, 111 F. 976; Kraft v. Smothers, 103 ... Ark. 269; City of Coldwater v. Tucker, 36 Mich. 476; ... Maywood Co. v. Village of Maywood, 140 Ill. 216; ... Briggs v ... ...
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    • United States
    • Arkansas Supreme Court
    • October 29, 1917
    ...cities and towns to be formed only on the consent of a majority of the property owners. It is not violative of Art. 19, § 27. 103 Ark. 269; 87 Id. 346; 118 Id. 2. It is a local improvement conferring special benefits. 96 Ark. 410; 106 Id. 115; 113 Id. 193; 170 U.S. 304; 56 N.W. 41; 23 Id. 2......
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