Morrilton Waterworks Improvement District v. Earl

Decision Date10 January 1903
Citation71 S.W. 666,71 Ark. 4
PartiesMORRILTON WATERWORKS IMPROVEMENT DISTRICT v. EARL
CourtArkansas Supreme Court

Appeal from Conway Circuit Court in Chancery, JOHN FLETCHER, Special Judge.

Reversed.

H. D Cammack, O. T. Bentley and Corroll Armstrong, as the Board of Improvement of the Morrilton Waterworks Improvement District sued in equity in the Conway circuit court to foreclose a lien on the property of appellees, L. M. Earl and others. It is alleged in the complaint that the improvement district for the purpose of building, maintaining and operating a system of waterworks had been duly established, embracing the corporate limits of the city of Morrilton; that the plaintiffs constituted the board of improvement, and that the defendants owed taxes that were delinquent, and that all steps necessary to authorize the bringing of the suit had been taken.

Defendants answered, denying that plaintiffs composed the board of improvement, or that any one of them was a member thereof.

Upon the trial, by leave of the court, an amendment to the answer was filed, alleging that on the 5th day of May, 1902 plaintiffs had been by the city council of Morrilton removed as commissioners, and others appointed in their stead, who had taken the oath and entered upon the performance of their duties. That the new board had appointed a collector of the district, to whom the defendants had paid the taxes sued for.

By leave of the court before the trial, it was shown that O. T Bentley had resigned, and E. E. Mitchell had been appointed by the other members of the plaintiff board, and he was substituted in place of said Bentley.

The agreed statement of facts was substantially to the following effect:

An improvement district for the purpose of erecting a system of waterworks, embracing the entire limits of the city of Morrilton, was legally established, and on the 15th day of May, 1899, Carroll Armstrong (one of the plaintiff board) B. F. Wilson and M. A. Dowdle were appointed a board of improvement, and in due time qualified and entered upon their duties, and acted till March 22, 1900, when M. A. Dowdle resigned, and O. T. Bentley was appointed by the other members of the board, and legally qualified. On April 12, 1901, B. F. Wilson resigned, and the other members of the board appointed H. D. Cammack, and he at once qualified, and after this suit was begun O. T. Bentley resigned, and E. E. Mitchell was appointed by the other members of the board, and legally qualified. At the commencement of the suit, only one member, Carroll Armstrong, who had been appointed by the city council remained, the others having been appointed by the board to fill vacancies occurring from time to time.

The board, as originally constituted, and as continued by the filling of vacancies, had caused plans of the system to be made and an estimate of the cost, and reported the same to the city council, and the proper assessment had been made. A contract had been let for building the system of waterworks. A survey and complete plans had been made, and a contract made to pay for it. The board had continuously in good faith tried to carry out the law and build the waterworks, had charge of the books and papers, and was acting and endeavoring to carry out the law when the suit was begun.

On April 21, 1902, a large majority, both in number and value, of the owners of real property within said waterworks district petitioned the council to abandon the district. On the same day the council, by an ordinance reciting that "the making of said improvement has been found to be impracticable, and a large majority of the property owners within said district have petitioned said council to repeal the ordinance" creating the district, attempted to revoke the authority to prosecute the work, but directed the debts already incurred to be paid. On May 5, 1902, the plaintiffs having failed, through oversight, to make the annual report required by law (Acts 1895, p. 205), an ordinance removing plaintiffs from the board of improvement and appointing their successors was passed without notice to plaintiffs. It was agreed that the ordinance purporting to remove plaintiffs from the board and to appoint their successors was not made because the plaintiffs refused to prosecute, but because they refused to abandon the enterprise.

The chancellor held that the city council had power to abolish the district, and to remove the members of the board, and dismissed the complaint. Plaintiffs have appealed.

Reversed and remanded.

J. F. & Jordan Sellers, for appellant.

Municipal powers are strictly construed. 31 Ark. 462; 45 Ark. 454; 36 Mich. 416; 1 Dill. Mun. Corp. § 89. An improvement district is a separate entity. 42 Ark. 161; 55 Ark. 156; 67 Ark. 30; 14 L. R. A. 766; 66 Ark. 40; 42 N.J.L. 575; 55 Am. Rep. 65. In judicial proceedings under special statutes the court has refused to go beyond the letter. 40 Ark. 290; 43 Ark. 150; 45 Ark. 458; 54 Ark. 627; 51 Ark. 35; 33 Ark. 740; 28 Ark. 359; 40 Ark. 124. The legislature intended that the ordinance should be irrepealable. Sand. & H. Dig., § 1186; Acts 1895, p. 82. In the absence of a statute, the citizens cannot dissolve a municipal corporation. 15 Am. & Eng. Enc. Law, 1198; 71 Tex. 70; 1 Dill. Mun. Corp. 167. The proceeding is a contract, and rights have vested. 55 Ark. 157; 12 Ark. 352; 17 Am. & Eng. Enc. Law, 245; 1 Dill. Mun. Corp. § 314; 22 Vt. 571; 49 Ia. 147; 21 Cal. 119; 64 F. 157; 1 Thomp. Corp § 1019. The order of removal is void. 13 Pet. 225; 42 Ark. 161. The implied power of removal does not apply. Sand. & H. Dig., § 5332; 28 Cal. 602; Mech. Pub. Off. 405; 19 Am. & Eng. Enc. Law, 562, 383; 94 N.Y. 592; 32 N.Y. 358; 42 P. 963; 4 Blackf. (Ind.), 116; Mech. Pub. Off. § 120; 40 Mich. 585; 45 Ill. 397; 81 Ky. 67; 14 Ore. 98; 52 N.Y. 478. There was no vacancy in the council. 21 L. R. A. 539; 97 N.Y. 271; 7 Col. 612; 7 Ind. 326; 49 Cal. 407; 47 Mo. 301; Throop, Pub. Off. § 420.

A. F. Vandeventer, N. T. Hawkins and Rose Hemingway & Rose, for appellees.

The city council had power to remove the commissioners. Sand. & H. Dig., §§ 7375, 7376; Tied. Mun. Corp. 83; Mech. Pub. Off. § 445; 19 Am. & Eng. Enc. Law, 562; 13 Pet. 288; 103 U.S. 232; 39 Ark. 211; 4 Sandf. L. 109; 5 Barb. 43; 20 Wend. 585; 39 Ark. 211-215. The council had power to abandon the improvement. 94 Ill. 562; 7 Am. & Eng. Enc. Corp. Cas. 452; 55 N.E. 679; 58 N.E. 301. Quo warranto proceeding can be restored to only where franchises have been usurped or forfeited. 13 Enc. Pl. & Pr. 386; 3 Ark. 585; 5 Ark. 595; 48 Ark. 321.

BATTLE J. HUGHES, J., dissents.

OPINION

BATTLE, J.

The three members who composed the board of improvement of the "Morrilton Waterworks Improvement District" were appointed for the accomplishment of a given result--the construction of waterworks. Their term of office will not expire until the works are completed. This is clearly indicated by a statute which provides that "vacancies that may occur after the board shall have been organized shall be filled by the remaining member or members; but if all the places on the board shall become vacant, or those appointed shall, after qualification, refuse or neglect to act, new members shall be appointed by the council, as in the first instance." Sand. & H. Dig., § 5327. No other provision for the election or appointment of successors in office to them is made. The statutes do not expressly give the city council of Morrilton power to remove them, but, assuming without deciding that it has the power, we think it is evident that it cannot do so except for cause, and that the power cannot be exercised without notice and hearing, and that the existence of the cause must first be determined after notice has been given to them of the charges made against them, and they have been given an opportunity to be heard in their defense. Mechem, Public Officers, §§ 405, 454, and cases cited; Lee v. Huff, 61 Ark. 494, 33 S.W. 846; Field v. Com. 32 Pa. 478; State v. St. Louis, 90 Mo. 19, 1 S.W. 757; Dullam v. Willson, 53 Mich. 392, 19 N.W. 112; State v. Chatburn, 63 Iowa 659, 19 N.W. 816.

It follows, then, that the effort of the city council of Morrilton to remove the members of the board of improvement of the "Morrilton Water Works Improvement District, " and to appoint others in their stead, without first giving them notice of any charges against them, or an opportunity to be heard in their defense, was without effect and void.

On the 21st of April, 1902, the city council of Morrilton, upon a petition of the majority of the owners, in value, of the real property in that city, passed an ordinance by which it undertook to abolish or dissolve the "Water Works Improvement district" for all purposes except the payment of debts already contracted. The attempt to remove the members of the board of improvement and appoint others in their stead was made on the 5th of May, 1902, to aid in the accomplishment of the same object; the removal having been made because the members removed refused to abandon the construction of the waterworks, and the new members having been appointed for the purpose of "winding up the affairs of the district, paying its debts, and abandoning the enterprise." Did the city council have the power to abolish or dissolve the district?

Judge Dillon, in his work on Municipal Corporations, says: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair, reasonable...

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