Main v. Ft. Smith

• Decision Date: 05 November 1887
• Citation: 5 S.W. 801,49 Ark. 480
• Parties: MAIN v. FORT SMITH
• Court: Arkansas Supreme Court

5 S.W. 801

49 Ark. 480

MAIN v. FORT SMITH

Supreme Court of Arkansas

November 5, 1887

APPEAL from Sebastian Circuit Court, R. B. RUTHERFORD, Judge.

Judgment affirmed.

Collins & Balch for appellant.

1. The city council in its official capacity has never passed any valid ordinance or resolution declaring their intention to construct said gutters. The order of June 2d does not declare what kind of material should be used, nor the cost or depth of same. This was necessary. 43 Mo. 403; id., 353; 46 id 577; 4 Bush. Ky. 464; 53 Cal. 44; 19 Mich. 39; Desty on Tax 1243; Mansf. Dig., sec. 760.

2. The city council in its official capacity has never entered into any contract with Wallace, or any other person, to construct said gutters, or authorize any other person to enter into such contract. Mansf. Dig., sec. 774; 40 Ark. 105; 35 id 75; 36 Ind. 90. The record must show that the city council acted on the contract; that the order to enter into the contract must be in writing, and entered of record, and the ayes and noes must appear of record, and cannot be proved by oral proof. Supra; 33 Mich. 321. The ratification of the acts of the committee could not validate the void transaction. 43 Mo. 367, 375; 4 Bush. 74, 468; 1 N. Y. Ct. App., 79; 20 id., 312; 71 id., 319; 2 Desty Tax., 1241-2-3.

There is no principle of estoppel by which appellant is estopped. Defendant refused to sign the petition for the work, thus protesting against it. 22 Mich. 104; 40 Ind. 44; 69 Mo. 378-9; 74 id., 166-7; 31 Ark. 718; 56 N. Y. Ct. App., 258; 6 Kan. 187-9; 9 Mo. App., 29; 59 Cal. 233; 31 N.J.Eq. 585.

Clendenning & Read and M. H. Sandels for appellee.

The acts of the council were done under sections 760, 761, Mansfield's Digest. Under these is passed a general ordinance providing for the improvement contemplated. There can be no dispute about the validity and regularity of the proceedings of the council. The petition was properly filed and the necessary order made, and publication made as required by the ordinance. Mansf. Dig., secs. 774, 924.

While it is true that to charge the owner with the expense of constructing sidewalks, etc., a municipal corporation must comply with all conditions precedent, whether prescribed by charter or ordinance (2 Dill. Mun. Corp.), 806, yet neither the statute nor the ordinance provides that the council shall prescribe the cost of such improvement, or the kind of material to be used. They were not conditions precedent.

The petition must be taken in connection with the order, and the locality, dimensions, materials, time, etc., are prescribed and observed.

Review the authorities cited by appellant, showing that, in those States, the charters require the council to prescribe the mode and manner, etc., in which the work shall be performed 2 Dill. Mun. Corp., sec. 812.

It is not necessary that the ordinance or resolution directing the improvement of a street should describe the improvement in detail; it is sufficient if it gives a general direction as to the plan of the work. 9 N.E. 721; id., 723.

2. It is not necessary that the contract itself should be submitted to the council. There must be authority "to enter into a contract," and this authority must be given in a certain way. Mansf. Dig., sec. 774; 40 Ark. 105; 35 id., 75. But the council could authorize an agent or committee to make a binding contract. The order to make the gutters carried with it the authority to enter into a contract. The lowest bid was submitted to the council. Parol evidence is admissible of facts omitted to be stated upon the record. 1 Dill. Mun. Corp., secs. 300, 301; 12 Wheat., 64. But if the lowest bid was not submitted to the council, the subsequent ratification was sufficient. 1 Dill. Mun. Corp., sec. 463; 17 N.Y. 449; 19 id., 207; 31 Cal. 26.

In making these improvements, the corporation is the agent of the property owners, and when they stand by and see them made and paid for by the corporation, they can have no relief unless they are injured, or the improvements are done in an unskilful manner, or of poor materials. 19 N.J.Eq. 376; 24 id., 143; 25 id., 295.

OPINION

BATTLE, J.

On the 19th 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 Forth 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 endorsement 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 2d 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 No. (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 4th 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 4th 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 21st 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 4th of August, 1884. On the 27th of September following, the property holders having failed to make the gutters within the time allowed to them, the contract was let...