Less v. Improvement District No. 1 of Hoxie

HART, J., (after stating- tbe facts). In tbe case of Meehan v. Maxwell, 115 Ark. 594, tbe court held: “Where tbe petition to the city council asking for tbe formation of an improvement district provided that tbe district was for tbe ‘purpose of building and laying concrete sidewalks on all public streets of tbe entire town, ’ and tbe ordinance provided for tbe ‘laying and building concrete sidewalks on either or both sides of all public streets within tbe town,’ tbe ordinance will be held to change, or depart from, tbe terms of tbe petition, and tbe ordinance was therefore invalid.” Tbis case controls here. In tbe first place it will be noted that there is a variance between the petition and tbe ordinance. Tbe ordinance provides that tbe sidewalks and streets within tbe proposed district be improved. Tbe petition provides that the sidewalks where now needed and tbe streets be improved. Tbis leaves it to tbe discretion of tbe commissioners to determine tbe sidewalks they might cause to be improved. Tbis could not be lawfully done under tbe decision just referred to. It is necessary that there should be no uncertainty about tbe improvement which it is proposed to make. Tbe reason for tbe rule was stated at length in Cox v. Road Improvement District No. 8 of Lonoke County, 118 Ark. 119, and nothing can be added to what was there said. In that case the court said: ‘ ‘ The details and plans of the improvement may he worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited to carrying out the purpose of the petition. It is not contemplated that upon and after the establishment of the district there shall be any doubt about the improvement to be constructed. Otherwise, property owners might sign the petition under the apprehension that a certain road or street was to be improved, only to learn after the district had been established, and the plans had been approved, that they were mistaken or had been deceived. One of the purposes of requiring a petition in writing is to prevent such controversies. ’ ’ The question concerning the organization of this improvement district Las been before us twice before. Boaz v. Coates, 114 Ark. 23, and Gibson v. Hoxie, 110 Ark. 544. We can only decide cases however on the record made in the court below. In neither of these cases was the question now raised referred to or made an issue in the case. In the case of Gibson v. The Town of Hoxie, it was claimed that the ordinance establishing the district was not properly published. A curative act was passed to cure this defect. The court held that the case fell within the principle that it is within the power of the Legislature to cure all omissions in proceedings as to matters which could have been dispensed with in the beginning. In the case of Boaz v. Coates, the court held that where the proceedings for the laying of sidewalks by an improvement district in a city were regular up to the publication of the ordinance levying the assessment, the fact that the ordinance was invalid, will not prevent the city council from passing a new ordinance and publishing it in accordance with the laws then in force. The defect in the organization of the district as shown by the record on this appeal could not be cured by any ordinance passed for that purpose. As stated above there can be no uncertainty about the proposed improvement district and our cases treat the petition as jurisdictional. It can not be left to the judgment of tbe commissioners to decide what sidewalks should be laid. It follows that the judgment of the circuit court was correct and must be affirmed.