Cox v. Road Improvement District No. 8 of Lonoke County

• Decision Date: 05 April 1915
• Docket Number: 301,366
• Citation: 176 S.W. 676,118 Ark. 119
• Parties: Cox v. ROAD IMPROVEMENT DISTRICT No: 8 OF LONOKE COUNTY
• Court: Arkansas Supreme Court

176 S.W. 676

118 Ark. 119

Cox v. ROAD IMPROVEMENT DISTRICT No: 8 OF LONOKE COUNTY

No. 301, 366

Supreme Court of Arkansas

April 5, 1915

Appeal from Lonoke Circuit Court; Eugene Lank-ford, Judge; reversed.

STATEMENT BY THE COURT.

The Legislature of 1913 passed an act, numbered 212, applicable only to Lonoke and Prairie counties, wherein it created and defined the geographical limits of four road improvement districts, said districts being incorporated and respectively designated as Road Improvement Dis-triers 1, 2, 3 and 4 of Lonoke County.

After creating these districts, section 1 of the act provides beginning with subdivision F thereof, for the organization of road improvement districts which may be desired in the future.

Proceeding under subdivision F of section 1, owners of lands lying in township 1 south, range 9 west, of Lo-noke County, being more than ten in number, filed their petition with the clerk of the county court, praying for the creation of Road Improvement District No. 8. This proposed district embraced about 8,800 acres of land, and includes all lots and parcels of land within the limits of the incorporated town of Keo, in said township and county.

Appellants herein, remonstrants below, are owners of lands out in the township and some few are owners of lots in the incorporated town of Keo. At the date set for the hearing of the petition in the county court, remonstrants, thirty or more in number filed their remonstrance, in which various objections were urged against the establishment of the proposed improvement district. After hearing the issues, the county court ordered and adjudged the creation of the district as petitioned for. Remonstrants perfected their appeal to the circuit court where the cause was tried upon an agreed statement of facts and after hearing the issues the circuit court affirmed the judgment of the court below. Remonstrants have appealed from that judgment.

The petition for the establishment of the improvement district recites that a plat, showing, generally, the location of the roads which it is proposed to improve, was filed with the petition as an exhibit thereto. But no such plat appears in the record. Upon the contrary, the cause was tried upon an agreed statement of facts, from which it appears that there was no designation of the roads which it was proposed to improve.

The agreed statement of facts is as follows:

"It is agreed by the parties hereto through their respective attorneys, that this cause now pending in this court on appeal from the Lonoke County Court may be heard and decided upon the following statement, which contains all the facts involved in this cause, to wit:

"That the petition asking for the creation of Road Improvement District No. 8 of Lonoke County, Arkansas, was filed in the Lonoke County Court on June 25, 1914, and after full compliance with the provisions relative to notices, etc., of Act 212 of the Acts of 1913, the same was acted upon 'by the county court, which, over the objection of remonstrants, entered an order on July 16, 1914, creating said district, whereupon proper affidavit stating cause, s for review was made by remonstrants and appeal granted; that said proposed district contains about eight thousand acres of land, the limits of which are properly defined, and that same is located in township one (1) south, range nine (9) west, Lonoke County, Arkansas; that the proposed district includes Keo, an incorporated town situated in said county, containing one hundred and sixty acres; that the purpose of the proposed Road Improvement District No. 8 is to improve some of the public roads within its limits, but no improvements are to be 'made within the corporate limits of Keo; that said petition praying for the creation of the said road improvement district contains the names of a majority of the owners of land within the proposed district, and a majority in land values, excluding the St. Louis Southwestern Railway right-of-way, but including same there is no majority in land values that a majority of the owners of lands and land values in Keo signed the petition, but excluding from the petition the names of owners of land and land valuations in Keo, there is not a 'majority; that to pay for the improvement of said county roads within the district, all property lying within the district, including all property within the limits of the incorporated town of Keo, will be assessed under the order of the county court.

"That no ordinance has been passed by the town council of Keo, creating the district or assessing property within its limits to pay for the improvement of said county roads.

"Question: Under the above statement of facts should the judgment of the county court be affirmed or reversed?"

Judgment affirmed.

Dunaway & Chamberlin, for appellants.

1. The order of the court in establishing the district is void because of the insufficiency of the petition.

Chas. A. Walls and Jas. B. Gray, for appellee.

1. The order creating the district is valid.

OPINION

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

Subdivision F of section i of the act in question provides that hereafter, when ten or more owners of real property within a proposed improvement district shall petition the county court to establish a road improvement district to embrace a certain region, describing generally the region which it is intended shall be embraced within the boundaries of the proposed district, and shall file a plat with said petition upon which the boundaries of the proposed district are plainly indicated, showing the roads to be constructed, as nearly as practicable, it shall then be the duty of the county court to give notice by publication of the filing of this petition for the purpose of calling upon all property owners within the proposed district to appear on a designated day and show cause for or against the establishment of the district.

The first question which naturally arises is, Has this requirement been complied with? Various other questions are discussed in the respective briefs; but we find it unnecessary to consider those questions for the reason that the petition does not meet the requirements of the act under which the proceeding was had. The petition may describe the improvement contemplated in general terms and leave the plans for the future development of the board. Ferguson v. McLain, 113 Ark. 193, 168 S.W. 127; section 6 of Act 212 of Acts of 1913.

There is not, of course, the same necessity for accurate descriptions of the roads which an improvement district embracing rural property is intended to improve as there is for an accurate description of streets in a town or city; but the legal principles which govern in one case must be applied in the other. It is essential in both cases that there be no uncertainty about the improvement which it is proposed to maze. All of the cases under our improvement district law treat the petition as jurisdictional, and hold that it, s recitals must meet the requirements of the statute. All of these decisions make it plain that there must be no uncertainty about the improvement proposed. The details and plans of the improvement may be worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited to carrying out the purpose of the petition. It is not contemplated that upon and after the establishment of the district there shall be any doubt about the improvement to be constructed. Otherwise property owners might sign the petition under the apprehension that a certain road or street was to be improved, only to learn after the district had been established, and the plans had been approved, that they were mistaken or had been deceived. One of the purposes of requiring a petition in writing is to prevent such controversies. Harnwell v. White, 115 Ark. 88, 171 S.W. 108; Kirst v. Street Imp. Dist., 86 Ark. 1, 109 S.W. 526; McDonnell v. Imp. Dist., 97 Ark. 334, 133 S.W. 1126; Smith v. Imp. Dist., 108 Ark. 141, 156 S.W. 455; Kraft v. Smothers, 103 Ark. 269, 146 S.W. 505; Bell v. Phillips, 116 Ark. 167, 172 S.W. 864; Board of Improvement v. Brun, 105 Ark. 65, 150 S.W. 154; Boles v. Kelley, 90 Ark. 29, 117 S.W. 1073; ...