Bell v. Phillips

• Decision Date: 04 January 1915
• Docket Number: 92
• Citation: 172 S.W. 864,116 Ark. 167
• Parties: BELL v. PHILLIPS
• Court: Arkansas Supreme Court

172 S.W. 864

116 Ark. 167

BELL v. PHILLIPS

No. 92

Supreme Court of Arkansas

January 4, 1915

Appeal from Washington Chancery Court; L. H. McGill, Special Chancellor; reversed.

STATEMENT BY THE COURT.

On December 5, 1912, there was presented to the city council of Fayetteville a petition signed by ten resident owners of real property within a proposed improvement district in the city of Fayetteville, praying for an improvement district. The petition described the property as follows: "Dickson street from the west line of the St. Louis & S. F. Ry. Co. right-of-way to the west line of College avenue, Block street from Dickson street, the Public Square, East street from Dickson street to the Public Square, and the Public Square (except the part thereof owned by the United States Government used as a postoffice site), and the parts of Center, Mountain, East and Block streets adjacent to the Public Square."

On December 9, 1912, the city council passed an ordinance numbered 301, "in compliance with the request of the petition heretofore filed." After reciting the filing of the petition and setting out the description of the property contained therein as the same was described in the petition the ordinance creating the district described it as follows:

"Beginning at a point which is one hundred and fifteen feet east and twenty-five feet north of the southwest quarter of the northeast quarter of section sixteen, township sixteen north range thirty west, and running thence north one hundred and ninety-five feet; thence east twenty-five hundred feet, more or less, to the west line of College avenue; thence south four hundred and five feet, more or less, to the southeast corner of lot A, block one, original town (now city) of Fayetteville; thence west two hundred feet, more or less, to the north line of Spring street; thence west eighty-one feet thence south one hundred and fifteen feet, more or less, to the south line of Mountain street; thence west one hundred and twenty-five feet; thence south eighty feet; thence west eighty-five feet, more or less, to the west line of East street; thence south ninety feet to an alley; thence west two hundred and seventy feet, more or less, to the west line of Block street; thence south seventy feet to the southeast corner of lot four, block thirty-one, original town (now city) of Fayetteville; thence west one hundred and fifty feet to an alley; thence north sixteen hundred and eighty-five feet, more or less, to the southeast corner of lot two-A block three, original town (now city) of Fayetteville; thence west two hundred and five feet to the west line of Church street; thence south eighty feet, more or less, to the southeast corner of lot three-A, sub-division of block four original town (now city) of Fayetteville; thence west three hundred and fifteen feet, more or less, to the southwest corner of lot four, in said block four, original town (now city) of Fayetteville; thence north fifty feet; thence west three hundred and sixty feet, more or less, to the southwest corner of lot six in block five, original town (now city) of Fayetteville; thence west four hundred feet to the west line of West street; thence north sixty feet; thence west two hundred and sixty feet, more or less, to the west line of the St. Louis & San Francisco Railroad Company's right-of-way; thence north to the place of beginning."

The ordinance designated the district as No. 1. At a meeting of the city council held on the 2d of January, 1913, there was presented a petition purporting to be signed by a majority in value of the owners of real property within the proposed improvement district referring to and reciting therein the same description as contained in the petition of ten and praying that the improvement provided for in Ordinance No. 301, District No. 1, be undertaken and that the cost thereof be assessed and charged upon the real property situated within the district. The council considered the petition and ascertained that it contained a majority in value of the owners of real property within the district and adjoining the locality to be affected, and, by its resolution, appointed a board of commissioners for the district who qualified and entered upon their duties.

On the 6th of February, 1913, the city council passed a resolution reciting that Ordinance No. 301, passed on the 9th of December, 1912, creating the improvement district "erroneously described parts and parcels of the lots and blocks of real estate to be improved in said improvement district," and for that reason declared that Ordinance No. 301, creating the improvement district and appointing the board of improvement, was null and void. The council, at the same meeting, passed another ordinance, numbered 304. This ordinance recited that it was based on the petition of ten resident property owners upon which Ordinance No. 301 had been passed, which erroneously described the proposed property embraced in the proposed district and for that reason had been declared void. The ordinance (No. 304) then described the property in the district, the same as it was described in Ordinance No. 301, except that in describing the boundaries of the district the beginning point was properly designated, and the property in the district otherwise laid off by a correct description. In other words, the boundaries of the district, in Ordinance No. 304, were properly fixed and described. This ordinance designated the district as District No. 1, the same as it had been designated in the ordinance which had been previously declared void by the council; and the ordinance described the kind of material with which the streets were to be paved, and declared that all ordinances and parts of ordinances in conflict therewith were repealed, and that the ordinance take effect from the day that it was passed and approved, February 6, 1913.

The council also, on the same day, passed a resolution naming as the board of commissioners for the improvement district the same men that had been previously named.

The Legislature passed an act, approved March 6, 1913, which provided, "that the ordinance passed by the council of the city of Fayetteville on the 6th day of February, 1913, creating an improvement district and defining the boundaries thereof, be made valid and all acts and proceedings done or had, or to be done or had thereunder, be made legal." The act did not contain the emergency clause.

The board of improvement selected an engineer and duly contracted with him and he proceeded to make plans and specifications for the proposed improvement. The board advertised for sealed bids for paving the streets provided for by the ordinance according to the plans and specifications of the engineer. Thereafter certain property owners who became dissatisfied with the kind of material that was proposed to be used for paving the streets adopted a resolution in which they requested the commissioners "to take no further steps at this time or hereafter until directed by a majority in value of the property owners in the district or create any expense in the formation or completion of said district," * * * and requested the city council to "take no further steps in any matter pertaining to said district at this time or hereafter until requested or directed to do so by a majority of the assessed value of the property owners in the district."

Copies of this resolution were served upon the commissioners and the city council, in the forenoon of August 23, 1913. In the afternoon of the same day the board of improvement entered into a written contract with the Kaw Paving Company, of Topeka, Kansas, to make the improvement according to the specifications, which were attached. It was provided in the contract "that the company should not begin work nor demand payment nor be required to furnish bonds until notified by the board that financial arrangements had been completed whereby the company could be promptly paid."

Early in September, 1913, this suit was instituted by the appellants. They alleged that they were the owners of real property situated within the proposed district, and, among various other things, they alleged that Ordinance No. 304 was not petitioned for; that a majority in value of the real property to be affected by such improvement district did not ask for the improvement to be made; that the act of the Legislature was in no manner binding upon the property owners, and "did not make legal or valid illegal acts and proceedings of the city council; that the act did not take effect until June 4, 1913, and that since June 4, 1913, there had been no petition of the property owners asking the council to assess any benefits to the property situated in said proposed improvement district, and that more than three months had elapsed since the passage of the ordinance and the passage of the act of the Legislature.

The court, among other things, found that the original petition on which ordinances Nos. 301 and 304 were based, was signed by as many as ten owners of real property within the proposed district, but that the same was insufficient because it did not contain any description of the boundaries of the proposed district, and it could not be ascertained therefrom what territory was intended to be included in the district; that Ordinance No. 301 was in due form and legally passed; that the boundaries of the district, as described therein, could be easily ascertained and distinguished by taking the description as a whole and rejecting the false description as to the beginning point; that Ordinance No. 304 was founded on the original petition presented to the council on the 9th of December, l912, and was in legal effect nothing more than Ordinance No. 301 amended; that is, that it amended the...