Cox v. Road Improvement District No. 8

176 S.W. 676, 118 Ark. 119, 1915 Ark. LEXIS 321

• Court: Supreme Court of Arkansas
• Decided: April 5, 1915
• Status: Published

Opinions

Smith, J.,

(after stating the facts). Subdivision F of section 1 of the act in question provides that hereafter, when ten or more owners of real property within a proposed improvement district shall petition the county court to establish a road improvement district to embrace a certain region, describing generally the region which it is intended shall be embraced within the boundaries of the proposed district, and .shall file a plat with said petition upon which the boundaries of the proposed district are plainly indicated, showing the roads to be constructed, as nearly as practicable, it shall then be the duty of the county court to give notice by publication of the filing of • this petition for the purpose of calling upon all property owners within the proposed district to .appear on a designated day and show cause for or against the establishment of the district.

The first question which naturally arises is, Has this requirement been complied with? Various other questions are discussed in the respective briefs; but we find it unnecessary to consider those questions for the reason that the petition does not meet the requirements of the act under which the proceeding was had. The petition may describe the improvement contemplated in general terms and leave the plans for the future development of the board. Ferguson v. McLain, 113 Ark. 193, 168 S. W. 127; section 6 of Act 212 of Acts of 1913.

(1) There is not, of course, the same necessity for accurate descriptions of the roads which an improvement district embracing rural property is intended to improve as there is for an accurate description of streets in a town or city; but the legal principles which govern in one case must be applied in the other. It is essential in both cases that there be no uncertainty about the improvement which it is proposed to make. All of the cases under our improvement district law treat the petition as jurisdictional, and hold that its recitals must meet the requirements of the statute. All of these decisions make it plain that there must be no uncertainty about the improvement proposed. The details and plans of the improvement may be 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 im-proved, only to learn after the district had been estábil shed, 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. Harnwell v. White, 115 Ark. 88; Kirst v. Street Imp. Dist., 86 Ark. 21; McDonnell v. Imp. Dist., 97 Ark. 341; Smith v. Imp. Dist., 108 Ark. 141; Kraft v. Smothers, 103 Ark. 269; Bell v. Phillips, 116 Ark. 167, 172 S. W. 864; Board of Improvement v. Brun, 105 Ark. 65; Boles v. Kelley, 90 Ark. 29; Watkins v. Griffith, 59 Ark. 344.

(2) The agreed statement of facts here recites that it is proposed to improve some -of the roads in a district embracing 8,800 acres of land. To establish this district would clothe the commissioners with a roving -commission which would be controlled only by their own discretion. The use of the word “some” implies that there are roads in the district which are not to be improved, and this record does not attempt to distinguish between the roads which are to be improved and those which are- not to be improved. If such indefinite improvements could be established, no petitioner could ever know, until after the district had been established, when his knowledge would prove unavailing, whether the road he thought would ibe improved was the one which was to be improved. In the very nature of things, the act in question did not contemplate that there should be any such uncertainty, and the order of the court in -establishing-the district is, therefore, void because of the insufficiency of the petition.

The judgment of the court below is, therefore, reversed, and this -canse will be remanded with directions that the -court vacate and set aside its -order directing the establishment of the district.