Castle v. Sanders

• Decision Date: 15 October 1923
• Docket Number: 173
• Parties: CASTLE v. SANDERS
• Court: Arkansas Supreme Court

254 S.W. 674

160 Ark. 391

CASTLE v. SANDERS

No. 173

Supreme Court of Arkansas

October 15, 1923

Appeal from Pulaski Chancery Court; C. B. Thweatt, special chancellor; affirmed.

Decree affirmed.

Louis Tarlowski, for appellant.

The court erred in dismissing the complaint. The statute was mandatory and not directory, and, being mandatory, its provisions must be strictly followed. Failure to insert in the published notice a description of one lot owned by appellant and situated within the proposed district is, under the terms of the statute, a fatal defect in the organization of the district. 104 Ark. 298; 67 Ark. 30; 113 Ark. 567; 115 Ark. 163; 134 Ill. 330; 58 Cal. 237. Statutory requirements are mandatory in the formation of local improvement districts. 50 Ark. 116; 59 Ark. 344; 30 Ark. 609; 79 Ark 236; 98 Ark. 505; 28 Ark. 359; 31 Ark. 334; 59 Ark. 344; 30 Ark. 487; 71 Ark. 556; 82 Ark. 247; 59 Ark. 237. It is a general rule that, where the Legislature makes no exception in a statute, the court can make none. 16 Ark. 671; 59 Ark 297; 6 Ark. 14; 42 Ark. 121; 13 Ark. 291; 24 Ark. 487; 62 Ark. 585; 59 Ark. 237; 20 Ark. 410. Where the language is unambiguous, there is no room for construction of a statute. 56 Ark. 110; 46 Ark. 159; 110 Ark. 99; 93 Ark. 42.

Sam T. & Tom Poe, for appellees.

The notice contained a sufficient description of the property. 138 Ark. 339. Congressional subdivision description includes all parcels, tracts and lots within the limits of the same. 72 Ark. 496; 70 S.W. 143.

WOOD J. HART, J., dissenting.

OPINION

WOOD, J.

This action was instituted by the appellant against the appellees. The appellant alleged in his complaint that he was owner of real property in Little Rock-North Heights Sewer District No. 1 of Pulaski County, Arkansas, to-wit: Lot 2, block 12, Park Hill Addition to city of North Little Rock, Pulaski County, Arkansas. He set up that on the 4th of May, 1923, certain owners of real property in Pulaski County presented a petition to the county court praying for the formation of a local improvement district for the purpose of building a sanitary sewer system, under authority of act 126 of the Acts of 1923, p. 84. The land embraced in the petition is described in the complaint. The appellant then alleges that, pursuant to the provisions of act 126, the clerk of the Pulaski County Court caused notice of the filing of the petition to be published in the city of North Little Rock, Pulaski County, Arkansas; that the notice as published omitted one lot which was intended to be a part of the proposed improvement district as set forth in the petition. The lot omitted is lot 40, block 5, Park Hill Addition to the city of North Little Rock, Arkansas. The complaint further alleged that the published notice contained the same description as was set forth in the petition, except the above mentioned lot; that the land was described in the petition under the congressional subdivision as the S 1/2 S.E. 1/4 S.E. 1/4 and E 1/2 S.E. 1/4 S.W. 1/4 S.E. 1/4 section 22; S 1/2 (except NE 1/4 N.E. 1/4 S.E. 1/4) of section 23, which includes certain blocks (describing them by number) and lots numbered from 39 to 46 inclusive, block 5 in Park Hill Addition to North Little Rock, and certain other lands, the description of which is set out in the complaint; that the published notice described the property the same as in the petition and the order of the court creating the district, except that, in enumerating the particular lots in block 5, lot 40 is omitted. The appellant then alleged that the appellees, as commissioners of the district, were proceeding to take steps to make the improvements for which the district was created; that the order of the court creating the district was void, and concluded with a prayer that it be so declared and that the appellees be enjoined from taking further steps looking toward the making of the improvements contemplated in the order creating the district. A copy of the petition for the formation of the district, and of the notice and of the court's order creating the district, were made exhibits to the complaint.

The appellees entered a general demurrer to the complaint, which the court sustained. The appellant stood on his complaint. The court entered a decree dismissing the same for want of equity, from which is this appeal.

The only question for decision is whether or not the omission of lot 40 from the published notice rendered the order creating the district invalid. Act 126 of the Acts of 1923 provides for the creation of improvement districts of the character set forth in the petition, when such petition is presented to the county court by a majority in value in acreage or numbers in any territory adjacent to a city having a population of more than 10,000 inhabitants, and that portions of incorporated towns and cities may be included upon the conditions therein specified. The act provides that, upon the filing of the petition, it shall be the duty of the county clerk to give notice of the filing thereof, describing the territory to be affected, and calling upon all persons who wish to be heard upon the question of the establishment of the district to appear before the county court, on a day to be fixed in the notice. The act provides the form of the notice, which is to the effect that a petition is on file at the office of the county clerk, praying for the formation of an improvement district, describing its purpose, and calling upon all persons desiring to be heard on the question of the formation of the district to appear on a certain day. The act, in prescribing the form of the notice, provides that the notice shall contain a description of the lands affected, and "that same may be described by using the largest subdivision possible."

The appellant relies upon cases in this court and other authorities to the effect that the publication of the notice to the landowners in a contemplated improvement district in the manner prescribed in the statute is jurisdictional, and that the district is not created without it. Crane v. Siloam Springs, 67 Ark. 30, 55 S.W. 955; Norton v. Bacon, 113 Ark. 566, 168 S.W. 1088; Voss v. Reyburn, 104 Ark. 298, 148 S.W. 510; McRaven v. Clancy, 115 Ark. 163, 171 S.W. 88. In the last of the above cases, among other things, we said: "The omission from the publication of one lot which was included in the petition and ordinance creating the district cannot be said to be an immaterial variance. The statute, being mandatory and jurisdictional, must be strictly complied with, and other notice than that contained in the statute of the passage of the ordinance is not sufficient and cannot be substituted for the notice prescribed by the statute."

The authorities upon which appellant relies are not applicable to the facts of this record,...