Board of Improvement of Gravette Waterworks Improvement District v. Carman

• Decision Date: 07 April 1919
• Docket Number: 175
• Citation: 211 S.W. 170,138 Ark. 339
• Parties: BOARD OF IMPROVEMENT OF GRAVETTE WATERWORKS IMPROVEMENT DISTRICT v. CARMAN
• Court: Arkansas Supreme Court

211 S.W. 170

138 Ark. 339

BOARD OF IMPROVEMENT OF GRAVETTE WATERWORKS IMPROVEMENT DISTRICT v. CARMAN

No. 175

Supreme Court of Arkansas

April 7, 1919

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor reversed.

Decree reversed and causes remanded.

C. M Rice and McGill & McGill, for appellants.

1. The allegations of the original complaint made a prima facie case as to the validity of the ordinances establishing the districts and levying the assessments. There is no specific denial of the allegations of the cross-complaint that no petition was filed within three months after the publication of the ordinances. 68 Ark. 376; 84 Id. 257. All objections to the validity of the proceedings establishing the districts, or levying and collecting assessments, must be specifically stated. Mere denials are not sufficient, or general allegations of fraud, illegality or irregularity present no issue, and do not impose upon the board the burden to show that all proceedings were regular. The burden of showing defects and irregularities is upon him who sets them up and relies upon them. 28 Cyc. 1188-9. This includes the constitutional objection that a majority of landowners did not sign the petition. 84 Ark. 257; 90 Id. 29. The only defects set up in the amended answer and cross-bill are that the proceedings are void because the organization of the city or town as a city of the second class was not signed by a majority in value and was not presented in time. The court sustained the first objection but made no finding as to the second, but it went further and found that the ordinance was void for fatal variance between the description of the district in the ordinance and the petition of the real estate owners asking for the district and because the description in the ordinance is indefinite and uncertain and because the ordinance does not state the subject of the ordinance or its title. As no issue was made in the pleadings or developed in the evidence bearing on the description or the title, the court must have made its findings by an inspection of the ordinance, and all the findings were erroneous.

2. The description was sufficient and there was no variance. The whole town was included. 70 Ark. 451; 90 Id. 219; 113 Id. 193; 115 Id. 594. No metes and bounds were necessary, as the whole town was included. As to the title of the ordinances the record shows a complete title. Kirby's Dig., § 3684.

3. The initial petition and majority petition both had the requisite number of signers. No issue was made in the pleadings as to the validity of the initial petitions. The waterworks petition was signed by twelve persons and the electric light petition by ten persons, all residents and real estate owners. It was not necessary that they should be residents. Both petitions were duly signed and presented in time. The proceedings were all regular and the districts duly established and the levies made were valid, as if done by the town council of Gravette.

4. The act of March 23, 1915, cured all defects in the proceedings had and done under the special act of February 7, 1911 raising the town to a city of the second class. Acts 1915, 831. It declares them de facto governments. Const., art. 12, sec. 3. Ib. § 2. The classification was purely arbitrary. Kirby's Dig., §§ 5421, 5422-4. After the decision in 117 Ark. 190, the Legislature passed the curative act of March 23, 1915, supra, which cured all defects in proceedings. 125 Ark. 126.

5. The acts and proceedings in relation to the districts were valid without the curative act, as they were performed by de facto officers. 123 Ark. 231; 38 Conn. 449; 9 Am. Rep. 409; 49 Ark. 439; 38 Id. 159; 118 U.S. 425; 122 Am. St. 331; 134 Id. 543; notes to Am. Rep., Trinity Series, pp. 683-694; 134 Mich. 537; 188 N.Y. 185; 117 Am. St. 841; 32 Conn. 432; 4 Am. Rep. 89; 24 Wend. 520; 81 Ark. 391.

6. It appears in evidence that since these suits all of the defendants have paid up their assessments in full. The signing of the referendum petition was not a legal step towards resisting the proceedings, as the referendum does not apply to such a case. 110 Ark. 528; 117 Id. 266. On the question of estoppel by signing petitions, acquiescence and failure to take legal steps, see 55 Ark. 148; 29 Id. 344; 69 Id. 68; 70 Id. 45; 71 Id. 556; 95 Id. 575; 90 Id. 29; 115 Id. 88; Ann. Cases 1915, B. 746 and note. In determining benefits the board may adopt a percentage valuation. 86 Ark. 1.

7. It was error to dismiss the complaints and enjoin the ordinances for any purposes and to cancel them. Supra.

W. N. Ivie, for appellees.

1. The appeals should be dismissed or the decrees affirmed because (1) there is no bill of exceptions in the record identifying and bringing upon the records, divers records read in evidence upon which the chancellor based his decrees. (2) The transcripts are not complete and do not contain all the evidence and documents introduced as required by law and the rules of this court. (3) The transcripts are defective and contain depositions and documentary evidence which are no part of the record and not used in the court below, and (4) said records and transcripts are not properly abstracted as required by the rules of this court. The stipulation of counsel as to records and documents was not complied with and numerous records and documents were placed in the records without identification by the court or being submitted to counsel for appellee, and could only be brought into the record by bill of exceptions. 86 Ark. 368; 112 S.W. 373; 92 Ark. 622; 124 S.W. 254. The case should be affirmed on the presumption that the chancellor's decree was warranted by the evidence. Supra.

2. The decree is right on the merits. The petitions were defective in the description of the real estate embraced in the districts and the extent and character of the improvements. 116 Ark. 167; 172 S.W. 864; 103 Ark. 269; 146 S.W. 505-6. The boundaries must be designated and the council must conform strictly to the authority conferred upon it by the petition, the foundation of the improvements. 71 Ark. 566; 104 Id. 298. The metes and bounds are uncertain and indefinite and there are alterations and additions to the records and many irregularities which avoid the districts. In addition, the city was without authority to pass the ordinances at the time. The city of Gravette was raised to a city of the second class by a special act and said act was void. 117 Ark. 190. It could not be validated or cured by any subsequent act. Acts 1915, p. 831 (No. 212). The case in 125 Ark. 126 does not aid counsel for appellant. The council were elected under a void act and its members were not even de facto officers, nor the city a de facto government. 2 McQuillin Mun. Corp., §§ 611, 706-7; Const. 1874, art. 19, § 27; 84 Ark. 380; 116 Id. 167; 123 Ark. 327.

OPINION

SMITH, J.

Suits were brought by the electric light and waterworks improvement districts of the incorporated town of Gravette against appellees to collect unpaid and delinquent assessments due on the lands described in the complaints. The complaints were drawn in conformity with sections 5691 and 5692 of Kirby's Digest, and contained only the allegations there required. An answer and cross-complaint was filed in each case, in which the validity of the assessments sought to be enforced was challenged upon two grounds. First, that no authority existed for the passage of the ordinance which raised the grade of the town to that of a city of the second class, the ordinances creating the improvement districts having been passed by the council while acting under its supposed authority as a city of the second class. Second, that a majority of the property owners had not petitioned the formation of the districts. By way of cross-complaint it was prayed that the collection of the assessment sued for, as well as any others, be perpetually enjoined.

The court sustained the first objection, but made no finding on the second. The court, however, went farther and found and declared the ordinances establishing the improvement districts were void by reason of a fatal variance between the description of the districts in the ordinances establishing them and the description in the petition praying their establishment, because the description set out in the ordinances is indefinite and uncertain, and, because the ordinances are not entitled, and do not state the subject of the ordinances in the title. The finding is identical in each case, as the suits were tried together by consent on identical records and are briefed here as a single case, although separate appeals have been perfected. We dispose of the questions stated in the order in which they are discussed by counsel.

We think the districts were not invalid because of an insufficient description of the territory to be embraced. The prayer of the petition was "to lay off and establish the whole of the city of Gravette into an electric light improvement district to be known as the Gravette Electric Light Improvement District." And a similar petition was filed for the waterworks district. The record of the city council recites that the council proceeded, pursuant to the petition of the property owners, "to take the necessary legal steps to lay off the whole of the city of Gravette Benton County, Arkansas, into an improvement district, as the same is now established, towit," and then follows by metes and bounds the boundary of the town. Attention is called in appellees' brief to two patent errors in this description; but it is insisted by appellant that if any issue as to the sufficiency of the description of the districts had been raised by the pleadings the errors pointed out could have been explained. Indeed, the argument is made that...