Bell v. Phillips

Wood, J., (after stating the facts). (1) The court correctly found that the original petition upon which ordinances 301 and 304 were based “was insufficient because it did not contain any description of the boundaries of the proposed district and because it could not be ascertained therefrom what territory was .included in the proposed district.” In Kraft v. Smothers, 103 Ark. 269, 272, we said: “The foundation of the improvement was the petition of the owners of real property situated in the proposed district. Under the statute, the extent and character of the improvement as expressed in the .ordinance must substantially comply with the terms of the petition upon which it is based.” And in the later case of Smith v. Improvement Dist. No. 14, 108 Ark. 141, 144, we said: “Our statutes require, as a prerequisite to the exercise of the authority conferred upon the city council, that a petition be first filed designating the boundaries of the district so that it may be easily distinguished. This is for the benefit of the property owners. * * '* A special limited jurisdiction is conferred upon the city council tó lay off the district as designated by the property owners in the first petition, and the council must conform strictly to the authority conferred upon it.” In Board of Imp. Dist. No. 60 v. Cotter, 71 Ark. 556-61, we held that “the filing of the required petition signed by ten resident property owners was mandatory and jurisdictional.” See also Whipple v. Tucksworth, 81 Ark. 403; Boles v. Kelly, 90 Ark. 34. (2-3) The court therefore erred in holding that Ordinance No. 301 “is in due form and was legally passed.” There was no petition signed by ten property owners in the proposed improvement district, containing such a definite description of the property as to enable the city council to designate the boundaries of the local improvement district proposed so that it could be easily distinguished, as required by section 5665 of Kirby’s Digest. The petition asked that the “public square and that part of Center Street, Mountain Street, Block and East streets known as the Public Square and adjacent thereto” be included in an improvement district This was too uncertain and indefinite in the way of description to be “foundation” for an improvement district. (4) There was no initial petition, such as the statute contemplates, and which is jurisdictional for the creation of an improvement district, and ordinances 301 and 304 and the proceedings thereunder were, therefore, void, unless the same were cured by the act of March 6, 1913. (5-6) The trial court was correct in declaring that the legal effect of the act “was to cure all omissions prior to the passage of the act which might have been dispensed with by legislative act,” for this is a well established rule. Cupp v. Welch, 50 Ark. 294; Sidway v. Lawson, 58 Ark. 117; Lanzer v. Butt, 84 Ark. 335. Although the filing of the petition of the ten property owners was a prerequisite to the formation of the improvement district, as held in Board of Improvement v. Cotter, supra, yet this mandatory and jurisdictional requirement was prescribed, not by the Constitution, but by the act of the Legislature. The Legislature could have dispensed with this initial petition of ten resident owners in the first instance. There is nothing in the Constitution to inhibit the Legislature from-providing for the creation of local improvements in cities and towns without such petition. Therefore, it was within the power of the Legislature to make valid any ordinances that would otherwise be void because of a failure to file the initiatory petition of ten in compliance with the statute. Kirby’s Digest, § § 5665-6. And if Ordinance 304 was void when passed only because it was not based upon the petition of ten resident property owners, then the act of March 6, 1913, by curing that ordinance, validated the improvement district. But the record shows that the petition of a purported majority in valué of the owners of real property in the district asking that the improvement be made contains the same vague and defective description as to the initiatory petition of ten. The petition of the purported majority prays that the improvement provided for by Ordinance 301 be made. But Ordinance 301 was void because it was based upon tbe insufficient petition of ten, and also because tbe description contained in tbe ordinance itself was fatally defective. Ordinance No. 304, of February 6, 1913, expressly declared that Ordinance No. 301 “erroneously described parts, lots and blocks of real estate,” and that said Ordinance 301 and tbe board of improvement were null and void. Ordinance No. 304 then established the alleged improvement district and correctly described it by designating tbe boundaries thereof. But neither before nor since tbe passage of this ordinance (304) has there been presented to tbe city council of tbe city, of Fayetteville a petition signed by a majority of tbe owners, in value, of tbe real property in tbe proposed district designated in Ordinance No. 304, praying for tbe improvement to be made in tbe proposed district as described in that ordinance. This was a constitutional,' and therefore indispensable, requirement for tbe validity of tbe improvement provided for by Ordinance 304. (7-8) Local improvements in cities and towns must be based upon the consent of a majority in value of tbe owners of real property in tbe improvement district proposed. Art. 19, § 27, 'Constitution of Arkansas. This fundamental prerequisite can not be dispensed with in tbe first instance, or cured thereafter. Crane v. Siloam Springs, 67 Ark. 30; Craig v. Russellville Water Works Imp. Dist., 84 Ark. 390. Tbe failure to obtain tbe consent of a majority in value of owners of real property in tbe improvement district designated in Ordinance 304 to tbe proposed improvement rendered that ordinance and all the proceedings thereunder void, and tbe appellants under tbe evidence in this record were not estopped from setting up tbe invalidity of tbe improvement district for tbe above reason. Imp. Dist. v. St. Louis S. W. Ry Co., 99 Ark. 515, and authorities cited; Craig v. Russellville Water Works Imp. Dist., 84 Ark. 390. See also, Watkins v. Griffith, 59 Ark. 360. See, also, Lewis v. Rieff, 114 Ark. 366, and Harnwell v. White, 115 Ark. 88, as to powers of improvement districts. The decree of the chancery court is therefore erroneous, and it is reversed and the cause is remanded with directions to grant appellants the relief they ask.