Main v. City of Fort Smith

• Court: Arkansas Supreme Court
• Writing for the Court: Battle
• Citation: Main v. City of Fort Smith, 5 S.W. 801 (Ark. 1887)
• Decision Date: 05 November 1887
• Parties: MAIN <I>v.</I> CITY OF FORT SMITH.

5 S.W. 801

MAIN

v. CITY OF FORT SMITH.

Supreme Court of Arkansas.

November 5, 1887.

Appeal from circuit court, Sebastian county; R. B. RUTHERFORD, Judge.

Collins & Balch, for appellant. Clendening & Read and M. H. Sandels, for appellee.

BATTLE, J.

On the nineteenth of May, 1884, the city council of Fort Smith passed a general ordinance, numbered 41, the first four sections of which read as follows:

"Be it ordained by the city council of Fort Smith that —

"Section 1. The improvement of any street, public highway, or alley, the construction, reconstruction, improvement, or repairs of any sidewalk, gutter, sewer, or any other local improvement within the city of Fort Smith, the cost of which may be assessed against the owners of real property adjacent to any such local improvement, shall be done, and the costs thereof assessed, as hereinafter provided.

"Sec. 2. When the improvement of any street, alley, or public highway, or the construction, reconstruction, improvement, or repair of any sidewalk, gutter, sewer, or other local improvement, within the city of Fort Smith, shall be asked for by petition to the city council signed by a majority in value of the property holders owning real property adjoining the locality to be affected, which petition also asks that the cost of said improvement shall be assessed against said property holders, and, when said petition shall be granted by the city council, said council shall authorize the mayor to publish an order that the improvement asked for shall be made by property holders owning real property adjacent to the locality to be improved, within sixty days after the first publication of such order or notice in the official paper.

"Sec. 3. The order or notice mentioned in the preceding section shall specify briefly, but plainly, the kind of improvement ordered to be constructed or repaired, the locality to which it is limited, and the time in which it must be completed, and shall be published in the official paper for ten days. Every person, occupant, or agent of any person owning or occupying property, which is to be assessed for the costs of any improvement, shall also have personal notice, if he can be found; and if he cannot be found, or is unknown, then a copy of such notice or order shall be left at such person's residence or place of business, and one posted at the lot or lots of such person. Such personal notice shall be served by copy, by the city marshal or deputy, and the indorsement upon said notice by the officer serving the same, shall be evidence of his action in the premises.

"Sec. 4. All improvements herein provided for shall be constructed under the supervision, and to the satisfaction of the city engineer, if there be one, or a committee of aldermen appointed for that purpose by the mayor. If such improvement is not made by the property holders within the time mentioned in the order of notice, the engineer or committee shall forthwith proceed to construct or repair the same, by contract, let to the lowest bidder, after advertising for bids in the official paper for five days. The lowest and best bid shall then be submitted to the city council for action, at the first regular meeting after selection by the committee."

On the second of June, 1884, a petition of a majority in value of the owners of the real property on Garrison avenue, between Franklin and Green streets, for gutters on both sides of the avenue between the streets named, was presented to the council at a regular meeting, and granted. The petition is in the following words: "To the Honorable Mayor and Aldermen of the City of Fort Smith: The undersigned property owners, owning property on Garrison avenue, between Franklin and Green streets, respectfully ask your honorable body that you order a gutter eight feet wide to be made on both sides of said avenue, from Franklin to Green streets, at the expense of the property owners, in accordance with the provisions of city ordinance number 41, (forty-one.)" The record of the proceedings of the city council at this meeting contains the following entry:

"A petition signed by a majority in value of the owners of real property fronting on Garrison avenue, for gutters on Garrison avenue from Franklin street to Green street, was read. The rules were suspended by unanimous consent, and on motion to grant the petition, and make an order for the gutters, the council voted as follows: Ayes — Aldermen Baker, Hight, Hunt, McKenna, and Reed. Noes — None.

  "Whereupon the order was made. On motion the council adjourned
                                                     "J. HENRY CARNALL, Mayor
                

"Attest: C. H. EBERLE, Recorder."

On the fourth of June following the mayor made an order, in which the dimensions of the gutters and materials of which they should be made, the locality in which they were to be constructed, and the time in which they should be constructed, were specified. It was also stated in this order that, if the gutters were not made by the owners of the property along or by which they were to be constructed on or before the fourth of August following, they would be made by the city, and the expenses incurred in so doing would be assessed on the property chargeable therewith. This order or notice was published in the manner prescribed by the ordinance; and the appellant, being one of the owners of property on Garrison avenue, where the gutters were to be constructed, was served with notice. On the twenty-first of July, 1884, the mayor, at a regular meeting of the council, appointed three aldermen a committee to advertise for and receive bids for the construction of the gutters, who advertised that they would receive sealed proposals for the construction of the gutters, according to the specifications made by the mayor, until the fourth of August, 1884. On the twenty-seventh of September following, the property holders having failed to make the gutters within the time allowed to them, the contract was let to M. C. Wallace, he being the lowest and best bidder. On the thirteenth of November, 1884, the city council, at a regular meeting, unanimously ordered and directed the committee of aldermen to employ George H. Lyman to superintend the construction of the gutters. On the twenty-third of March, 1885, at a special meeting of the council, the committee filed a report, in which they stated the amount of work done by the contractor, and the amount due...