Vogel v. Rock

• Decision Date: 26 March 1892
• Parties: VOGEL v. LITTLE ROCK
• Court: Arkansas Supreme Court

19 S.W. 13

55 Ark. 609

VOGEL v. LITTLE ROCK

Supreme Court of Arkansas

March 26, 1892

APPEAL from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Proceedings were instituted in the county court to annex to the city of Little Rock the unincorporated town of Argenta, and certain other contiguous territory, there having been an ordinance passed to that effect and a favorable vote at the annual city election. Vogel, Vestal, Ratcliffe and certain others interested in the land proposed to be annexed were permitted to intervene and to resist the annexation. The county court adjudged in favor of the annexation, as likewise did the circuit court on appeal. The case was appealed to this court and is reported as Vestal v. Little Rock, 54 Ark 321. This court, having found that certain lands were improperly annexed, remanded the cause to the circuit court with directions that the city should be permitted to make such amendments as it might deem proper in order to exclude from its petition lands that should not be annexed.

The mandate in the cause having been filed in the circuit court May 25, 1891, the city of Little Rock, by its attorney, filed its amended petition, in which it set up the original ordinance of February 15, 1890, providing for annexation, and also a resolution passed by the city council on July 27 1891, according to the terms of which the city council had resolved that its attorney be authorized "to amend the petition in the case of Vestal et al. v. Little Rock, now pending in the Pulaski circuit court, by striking out therefrom the said lands of said Vestal, and to make any further or additional amendments in the way of striking out or omitting from the petition territory included therein, in the progress of the proceedings for annexation."

The remonstrants united in a motion to strike out the amended petition. The motion was overruled. Upon he hearing the petition of the city was granted. The remonstrants have appealed.

Judgment affirmed.

Dodge & Johnson and U. M. & G. B. Rose for appellants.

1. The ordinance of annexation was never submitted to a vote of the people as provided by law. Section 922, Mansfield's Digest, requires the proposition to be submitted at least one month before the annual election. In this case it was submitted on the day of the annual election and is a nullity.

2. The city council had no right to amend the ordinance by the adoption of a mere resolution.

3. The proof shows that the property of remonstrants was not the proper subject of annexation.

Ratcliffe & Fletcher also for appellants.

Under the rule in 54 Ark. 321, the lands of Ratcliffe, Field and Hanger should not have been annexed. They are mostly used for agricultural purposes; they are vacant and do not derive special value from their adaptability for city uses; they are not necessary for city purposes. The lands are low and flat -- not adapted for residence purposes. It is beyond the natural boundary of the city. The only effect of annexation will be to impose the burden of city taxes with no corresponding benefits.

W. G. Whipple and Morris M. Cohn for appellee.

1. No ordinance was necessary to amend the petition. Mansf. Digest, sec. 786; 43 Ark. 327. The circuit court tries the case de novo and makes such order as the county court should have made. 33 Ark. 517. It may therefore permit an amendment unless restrained by other provisions of the statute. Secs. 790, 916, 922; 54 Ark. 329.

2. It is clear that the submission referred to in sec. 922 means that the question shall be submitted to the people by the council, thirty days before the annual election to be voted upon at said annual election. But this question is res adjudicata. 54 Ark. 321; Wells on Res Adjudicata, secs. 217-18; 18 How. 418; 3 How., 61; 26 Ark. 18; 29 id., 185; 44 id., 395.

3. The proof shows the lands of Ratcliffe, Field et al. to be properly annexed.

4. The railroad lands also come within the rule as laid down in 54 Ark. 321.

OPINION

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.

I. The solution of the first question depends upon the construction placed upon the first sentence in section 922 of Mansfield's Digest, 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 appellant contends, 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 the question to the voters or in taking the sense of the voters upon the question referred. If the former is its signification, the...