Vogel v. City of Little Rock

• Decision Date: 26 March 1892
• Citation: 19 S.W. 13
• Parties: VOGEL <I>et al.</I> v. CITY OF LITTLE ROCK.
• Court: Arkansas Supreme Court

Page 13

19 S.W. 13

VOGEL et al. v. CITY OF LITTLE ROCK.

Supreme Court of Arkansas.

March 26, 1892.

Appeal from circuit court, Pulaski county; ROBERT J. LEA, Judge.

Proceeding by the city of Little Rock to annex certain adjoining territory. C. L. Vogel and others protested. From the judgment of the circuit court remonstrants appeal. Affirmed.

Dodge & Johnson, U. M. & G. B. Rose, and Ratcliffe & Fletcher, for appellants. Wm. G. Whipple and Morris M. Cohn, City Atty., for appellee.

HEMINGWAY, J.

The grounds alleged for reversal are: First, that the vote upon annexation was taken at the annual city election, and that such vote could be legally taken only at an election held at least one month before the annual election; second, that where there is an affirmative vote upon a proposition to annex contiguous outlying territory to a municipal corporation, and it appears there are portions of said territory which should not be annexed, the petition cannot be amended by excluding such portions, as was done in this case; third, that, if such right of amendment exists, it must be authorized by an ordinance of the municipal council, and cannot be allowed upon the motion of the city attorney in the absence of such ordinance; and, fourth, that it was not right and proper to include in the territory annexed the land of Ratcliffe, Field, and Hanger.

1. The solution of the first question depends upon the construction placed upon the first sentence in section 922, Mansf. Dig., which is as follows: "When any municipal corporation shall desire to annex any contiguous territory thereto, lying in the same county, it shall be lawful for the council to submit the question to the qualified electors at least one month before the annual election." The statutes contain no other section with reference to the proceedings for the annexation of outlying territory on the motion of the corporation; and it must be presumed that the provisions of this section were intended to comprise complete regulations for such annexation, and such construction should be placed upon it, if possible, as will give it that effect. The controversy in this cause is as to the construction of the clause, "it shall be lawful for the council to submit the question to the qualified electors at least one month before the annual election." Its meaning, as the appellants contend, is that the question shall be submitted to the qualified electors at an election held at least one month before the annual election; but, as the appellee contends, that the council shall make an order at least a month before the annual election for the submission of the question at that election. So the question is, does the term "submitting the question" have reference to the act of the council in referring the question to the voters, or in taking the sense of the voters upon the question referred? If the former is its signification, the fact that the statute fixes the time when the council shall act by reference to the annual election, without providing any other means of taking the sense of the voters, would imply that it was to be done at the annual election, with the machinery there employed. And, while this section contains no express provision for giving notice of the election, none was necessary; for, if the ordinance directing the submission is passed more than 30 days before the annual election, notice of it is given by its publication in the manner that all ordinances are required to be published, and notice of the election is given under the statute regulating the holding of annual elections. But, if the term signifies the act of taking the sense of the electors, then there is no provision regulating the act of the council in ordering the submission, or in giving notice of or holding the election, except that it shall be held at least one month prior to the annual election. Obviously a special election would be necessary; but this section makes no provision for a special election, and none other to which we are referred meets the case. There is no general provision authorizing the council...