Schaer v. Little Rock

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Schaer v. Little Rock, 14 S.W.2d 237, 179 Ark. 68 (Ark. 1929)
• Decision Date: 25 February 1929
• Docket Number: 184
• Parties: SCHAER v. LITTLE ROCK

14 S.W.2d 237

179 Ark. 68

SCHAER v. LITTLE ROCK

No. 184

Supreme Court of Arkansas

February 25, 1929

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.

Affirmed.

R P. Taylor, for appellant.

W W. Shepherd and W. R. Donham, for appellee.

HUMPHREYS J. Mr. Justice SMITH dissents.

OPINION

HUMPHREYS, J.

This is a suit in mandamus by appellants to compel appellees to pass an ordinance creating a street improvement district out of certain territory within the city of Little Rock.

Appellants are property owners within the proposed district, and petitioned the city council of Little Rock, under § 5649 of Crawford & Moses' Digest, to lay off the territory described in their petition into a street improvement district, which the city council declined to do, after hearing testimony introduced for and against the creation of the district. The section of the Digest referred to is as follows:

"When any ten owners of real property in any such city, or incorporated town, or any portion thereof, shall petition the city or town council to take steps toward making of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished; and each district, if more than one, shall be designated by number and by the object of the proposed improvement."

The proceeding in mandamus was submitted to the trial court sitting as a jury, which resulted in a dismissal of appellants' complaint upon the sole ground that the city council was vested by said section of the Digest with discretionary power to determine whether the first or initial petition sought to create and establish a local improvement, and that the testimony failed to reflect a demonstrable abuse of its discretion.

An appeal has been duly prosecuted to this court from the judgment dismissing appellants' complaint, in order to determine whether the section quoted is mandatory relative to the passage of an ordinance creating an improvement district upon the presentation of a petition signed by ten resident property owners within the territory described therein, or whether discretionary power is vested in the council by said section to grant or refuse the petition, if dependent upon the singleness and unity of the proposed improvement and whether the property described would be benefited. According to our decisions, the passage of an ordinance creating an improvement district is a determination of the singleness and unity of the proposed improvement and that the territory embraced therein will be specially benefited, which becomes conclusive except for fraud or demonstrable mistake. ...