Voss v. Reyburn

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 easily distinguished;” etc. Section 5666 provides that “within twenty days after the designation of such district or districts the clerk of said city or town shall publish the ordinance of the council establishing the district in some newspaper published in said city or town, for one insertion.” The publication of the ordinance of the city council establishing the district as required by this statute is mandatory and essential to the creation of a local improvement district, as held in Crane v. Siloam Springs, 67 Ark. 30, 43. In that case Judge Riddick, speaking for the court, said: “We can not concur in the contention that the requirement of the statute that the ordinance creating the district shall be published within five days after its passage is not mandatory. The intention was that the owners of real estate to be affected should have early notice of the creation of the district and of the scheme to levy assessments upon their property. The statute does not permit a majority in value of the owners of land in the district to come in and by one petition procure an ordinance establishing a district and levying an assessment for erecting the improvements. It requires that the ordinance creating the district and indicating the contemplated improvement shall be first passed, and notice of its passage given by publication within five days. It is important that this notice should be given in the manner and within the time prescribed by the statute; for it is in the nature of a warning to all owners of land in the district that a proceeding of that kind is on foot. So that if they wish to oppose the undertaking they may at the beginning, before public sentiment in regard thereto has become fixed, have an opportunity of discussing the question with other owners of land in the district, and, if the undertaking be unwise, perhaps defeat it by securing a majority in opposition to it. Failing in this, they can still be on guard, and watch the proceedings leading up to the assessment, to see that they are regular and in conformity with the law. We think, for these reasons, that the provision as to the time of the publication is for the benefit and protection of the land owners of the district, and must therefore be treated as mandatory. "The complaint alleged facts showing that the ordinance establishing the district whs not legally adopted, and not published within the time and in the manner required by law. It therefore stated a good cause of action, and the demurrer should have been overruled.” The statute under consideration and that passed upon in Crane v. Siloam Springs, supra, are the same except as to the time for the publication of the notice. The statute has been changed since the above decision so as to require the publication to be made within twenty days, instead of five. Act of May 3, 1901. The omission from the publication of the ordinance designating the district of the half of two blocks, containing twelve lots, is so material and important a variance from the petition and ordinance as passed as to destroy the validity of the attempted organization of the district. It was, in legal effect, no publication at all, and did not comply with the statutory requirement. The object of designating the boundaries of the district was to enable the property owners included therein and affected thereby to easily ascertain what property was included in the district. The owners of these lots, if they were to be included in the district, had a right under the law to be notified thereof so that, as was stated in the above case, if they wished to oppose the undertaking, they might do so at the beginning, “before public sentiment in regard thereto had become fixed,” and “have an opportunity of discussing the question with other owners of land in the district,” and “perhaps defeat it by securing a majority in opposition to it.” It would be very unjust to property owners to include them in the district without giving them the opportunity, if they deemed it unwise, to protest against it and to endeavor to convince and persuade their neighbors of its inexpediency. This right is intended to be guaranteed to every owner of land in the district by the statute under consideration. The publication of this notice in the manner prescribed by the statute is jurisdictional, and the district is not created without it. As is said by the Supreme Court of California, in Williams v. Board of Supervisors, 58 Cal. 237: “The statutory publication was one of the jurisdictional steps in the proceedings; and as the petition in question was not published in accordance with the requirement of the statute, all of the subsequent proceedings were invalid.” Other authorities to the same effect as the case above mentioned are cited in appellees’ brief, but the question is ruled by our own decision in Crane v. Siloam Springs, supra. Since District No. 157 has no valid existence, the allegations in the complaint as set forth in the statement showing that the appellants are nevertheless attempting to interfere with the appellees as commissioners of District No. 186 in proceeding with their work, and the necessity of the injunction in order to prevent a multiplicity of suits, were sufficient to give the chancery court jurisdiction. The judgment is correct, and it is affirmed.