Voss v. Reyburn

• Decision Date: 17 June 1912
• Citation: 148 S.W. 510,104 Ark. 298
• Parties: VOSS v. REYBURN
• Court: Arkansas Supreme Court

148 S.W. 510

104 Ark. 298

VOSS v. REYBURN

Supreme Court of Arkansas

June 17, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

This is a suit by the Commissioners of Street Improvement District No. 186 against the Commissioners of Street Improvement District No. 157, seeking to have the appellants, the designated Commissioners of Improvement District No. 157 "perpetually restrained from attempting to do any act under color of any pretended office or authority in District No. 157," and to have the assessment list in District No. 157 "declared null and void for the reason that the district was never validly organized."

The complaint, among other things, alleged "that on January 17, 1910, more than ten owners of real property in the city of Little Rock presented a petition to the city council of the city of Little Rock, asking for the grading and paving with vitrified brick of West Twenty-third Street from the west line of Main Street to the east line of Wolfe Street and praying that the following described property be formed into an improvement district for this purpose." Here follows a description of various lots and blocks, including among others, "north half of blocks 3 and 4, Clark's addition. "

The complaint then proceeds to allege "that on January 27 1910, the city council of the city of Little Rock passed an ordinance, intended to be in response to said petition, laying off a portion of the city of Little Rock into an improvement district for the purpose of grading and paving West Twenty-third Street, as prayed in said petition, and said ordinance was duly published in a newspaper published in the city of Little Rock, on January 31, 1910. Said ordinance gave the name of Street Improvement District No. 157 to said improvement district, and purported to describe the boundaries of said district by naming the property as described in the said petition; but in the publication of said ordinance it omitted to describe lots 1, 2, 3, 10, 11 and 12, in block 3, Clark's addition, and lots 1, 2, 3, 10, 11 and 12, block 4, Clark's addition to the city of Little Rock, which said lots were described in the petition praying that the district be created. With this exception, publication of said ordinance described the property as described in the said petition.

The complaint, after setting forth the appointment of commissioners for District No. 157, and assessors, and the filing of the assessment list of the district, then alleged that, for various reasons set forth in the complaint, District No. 157 was considered by the commissioners not properly organized, and alleged that "it was abandoned by the commissioners, the assessors, and the city collector," and then states that "all of the property owners who expressed themselves upon the subject desired that it be abandoned, so that a new district could be created," embracing practically the same territory. The complaint then alleged that District No. 157 was abandoned, and that District No. 186 was properly formed, and set forth the proceedings by which District No. 186 was created. The complaint then alleged as follows: "That recently the defendants claim that said District No. 157 was validly organized, and assert that District No. 186 has no valid existence, and by their attitude and conduct prevent the commissioners in District No. 186 from proceeding with the work, and their pretensions prevent said commissioners from receiving bids on contracts for doing the work and their borrowing money in order to hasten the work; and, furthermore, the said city collector and the other defendants herein, in asserting the liability of the property owners in District No. 157 and in attempting to collect their assessments, have brought about a condition whereby the property owners in said District No. 186 will not pay either the assessment made in District No. 157 or in District No. 186, and in order for the commissioners to collect the assessments in District No. 186 it will be necessary that they bring a multiplicity of suits against said property owners, involving much vexation and unnecessary expense."

Then follows the prayer that District No. 157 be declared null and void, and for a restraining order against the appellants from proceeding, as above stated.

The answer admitted that the allegations of the complaint were true, except that the appellants denied "that Street Improvement District No. 157 was abandoned or intended to be abandoned by the commissioners thereof or by any material part of the property owners therein," and denied that "because of the matters set forth in the complaint said district was invalidly organized." Appellants also averred that, even if the district was invalidly organized, the appellees were not entitled to an injunction, as "both districts can exist and make the improvements prayed for in their petitions and make the assessments levied thereby."

Judgment affirmed.

Bradshaw, Rhoton & Helm, for appellant.

1. District 157 was legally organized, and has never been abandoned. Mere failure by the commissioners to let the contract, borrow money, etc., is no reason to declare the abandonment, as the commissioners could be compelled to proceed by mandamus. 28 Cyc. 1018; Kirby's Dig., § 5716; 42 Ark. 152; 71 Id. 9.

2. Inaccuracies in the publication of local improvement ordinances do not avoid the ordinance. 205 Ill. 346; 187 Id. 21. No objection was made within the time prescribed by law. Kirby's Dig., § 5678; 98 Ark. 543; 130 S.W. 513,; 28 Cyc 1135 and notes.

3. The burden was on appellees to show that a majority did not sign the second petition, as well as that the including or excluding of property was by fraud or mistake. 98 Ark. 543; 81 Id. 208; 52 Id. 107.

4. If the district was dead, no injunction will lie; if alive, the courts can not interfere.

Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. District 157 was never validly organized; the defects were jurisdictional. 50 Ark. 126; 89 Id. 513; 86 Id. 1; 96 Ill. 369; 50 Cal. 11; 17 Ind.App. 324; 96 Ill. 369; 7 Mackey 94; 169 Ill. 286; 51 Cal. 307; 175 Ill. 575, 584; 107 La. 657.

2. Valid publication is a prerequisite to a valid organization. Kriby's Dig., § 5666; Wade on Notice, §§ 1030, 1059; 58 Cal. 237; 97 Ind. 90; 134 Ill. 330; 25 N.E. 995; 116 Cal. 470-2.

3. The district was abandoned. 71 Ark. 4; 94 Id. 49.

OPINION

WOOD, J., (after stating the facts).

In the petition for an ordinance designating District No. 157 the north half of blocks 3 and 4, Clark's addition, are embraced and so described, but this property is not embraced in the publication of the ordinance. Section 5665 of Kirby's Digest provides that when any ten resident owners of real property in the city shall petition the city council to take steps towards the making of any local improvement it shall be the duty of the council to lay off the improvement into an improvement district, "designating the boundaries of such district so that it may be...