Bell v. Phillips
| Decision Date | 04 January 1915 |
| Docket Number | (No. 92.) |
| Parties | BELL et al. v. PHILLIPS et al. |
| Court | Arkansas Supreme Court |
Suit by C. H. Bell and others against Guy Phillips and others. From a decree of dismissal, plaintiffs appeal. Reversed and remanded, with directions.
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. L. & S. F. Ry. Co. right of way to the west line of College avenue; Block street, from Dickson street to 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 post office 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 4, block 31, 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 2A, block 3, 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 3A, subdivision of block 4, original town (now city) of Fayetteville; thence west three hundred and fifteen feet, more or less, to the southwest corner of lot 4 in said block 4 original town (now city) of Fayetteville; thence west three hundred and fifteen feet, more or less, to the southwest corner of lot 4 in said block 4 in 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 6 in block 5, 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 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,...
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