Buxton v. City of Nashville

• Decision Date: 11 February 1918
• Docket Number: 147
• Citation: 201 S.W. 512,132 Ark. 511
• Parties: BUXTON v. CITY OF NASHVILLE
• Court: Arkansas Supreme Court

201 S.W. 512

132 Ark. 511

BUXTON v. CITY OF NASHVILLE

No. 147

Supreme Court of Arkansas

February 11, 1918

Appeal from Howard Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

W. C Rodgers, for appellants.

1. No petition as required by law was ever presented. A majority of land owners did not sign. The cost exceeded the limit. The limits extended beyond the city and embraced territory disconnected with the city. It was not necessary to bring this suit within the thirty days. Pope v. Nashville, ms., is not conclusive of this case. Appellants were not parties to that suit. 34 Ark. 291, 302; 35 Id. 62, 67; Ib. 450; 36 Id. 196. Res judicata can not be invoked. 66 Ark 336; 96 Id. 87.

2. Petitioners may withdraw their names from a petition. 40 Ark 290; 70 Id. 175; 77 Id. 122; 70 Id. 175. See also 105 Ark. 77; 121 Id. 276; 110 Id. 402.

3. A petition was filed within the thirty days allowed by the act. But the council was not in session until November 19, 1916 etc.

W. P. Feazel, for appellees.

1. The complaint was not filed within the thirty days allowed by law. Kirby & Castle's Digest, § 6826; Jacobs v. City of Paris, 131 Ark. 28; Pope v. City of Nashville, 131 Ark. 429. The thirty days statute was pleaded and is conclusive.

2. Argues the other questions raised.

STATEMENT OF FACTS.

This is a suit by the appellants against the appellees to enjoin proceedings under certain ordinances establishing improvement districts in the city of Nashville.

The petition for injunction sets up, among other things, that no petition as required by law had ever been presented to the council of the city of Nashville to lay off the land mentioned in the ordinances; that a majority of the owners had not petitioned the city council praying for such improvements to be undertaken; that the improvements contemplated in the districts would cost the property owners more than two-fifths of the assessed value of all the real property in the districts; that before any petition of any kind had been presented to the city council, purporting to contain the names of a majority in value of the owners of real property in the territory, owners in the territory affected who had signed the petitions asked that their names be withdrawn and that the enterprise contemplated be abandoned; that without such signatures there would not be a majority in value of the owners of real property in the district; that the council ignored the request of the petitioners; that the districts as set out in the ordinances extended beyond the bounds of the limits of the incorporated city of Nashville and embraced territory outside of and entirely disconnected from the city of Nashville; that since the petitions were filed and acted upon the conditions brought about by the war have made it impossible for the improvements to be made except at a cost exceeding 40 per cent. of the value of the real property in the districts.

The defendants answered, denying the allegations of the complaint, and, among other things, set up affirmatively, "that the city council of said city of Nashville, Arkansas, on the 19th day of November, 1916, at a meeting in which all the aldermen were present, proceeded to hear the petition and then and there found that the total value of the real estate situated in each of said improvement districts, the boundaries of which are identical, as shown by the last county assessment on file in the county clerk's office of Howard County, Arkansas, was $ 361,553, and that the real property owned by the signers of each of said petitions, situated in said district, was more than $ 191,000, and that each of the petitions for the improvements in said district has a majority in value as shown by the last county assessment, all of which will appear by a copy of said proceedings had before said council on the said 19th day of November, 1916, in reference to said petition, hereto attached, marked exhibit A and B and made a part of this answer, and that the plaintiffs or no one else by suit or otherwise in the Howard Chancery Court attempted to have the findings and proceedings of said council in regard to its said findings reviewed within thirty days after said findings were had, as provided by section 6826, Kirby & Castle's Digest, and the plaintiff is now for that reason barred and precluded from calling in question the findings of said council on said petition to the effect that the signers thereof constitute a majority in value of the real property situated within said district, and they here plead the thirty days limitation as a bar to plaintiff's right to maintain this suit or to call in question the correctness of the council's finding that petitions did contain a majority of the real property situated in said districts."

After hearing the testimony, the court found that "the action and finding of said council in regard to said petitions is conclusive unless suit is brought to review the action of said council within thirty days after said finding, and that in this case no such suit was brought, and that the plaintiffs are now barred by statute of limitations," and dismissed the action.

OPINION

WOOD, J., (after stating the facts).

The finding and judgment of the court were correct. The districts which were challenged by the proceedings instituted in the chancery court were formed under act 125 of the Acts of 1913, approved March 3, 1913. The first section of that act, among other things, contains a provision that, "the owners of real property within such district shall be heard before the council which shall determine whether the signers of said petition constitute a majority in value, and the finding of the council shall be conclusive unless within thirty days thereafter suit is brought to review its action in the chancery court of the county where such city or town lies."

This suit was instituted in the chancery court of Howard County June 4, 1917, and the complaint, on its face, shows that the districts whose validity are called in question were created by ordinance passed "some time in the year 1916." It thus appears that more than thirty days had elapsed after the ordinances establishing the districts were passed before this suit was instituted.

This court, in the recent cases of Jacobs et al. v. City of Paris, 131 Ark. 28, 198 S.W 134, and Pope v. City of Nashville, 131 Ark. 429, 199 S.W. 101, decided that the above statute was a valid exercise of legislative power and that after the expiration of the time prescribed the finding of the council that the petition was signed by a majority in value of the owners of the real property in the district could not be questioned. This disposes of appellant's contention that the majority in value of the owners...