Dunkum v. Moore

580 S.W.2d 183, 265 Ark. 544, 1979 Ark. LEXIS 1380

• Court: Supreme Court of Arkansas
• Decided: April 23, 1979
• Docket: 78-290
• Status: Published

Opinions

Conley Byrd, Justice.

A petition containing the signatures of 227 registered voters was filed for the incorporation of Shannon Hills. The county court heard the matter and entered an order approving the proposed incorporation of the designated areas as Shannon Hills. Appellants William A. Dunkum, et al., pursuant to Ark. Stat. Ann. § 19-105 (Repl. 1968) and within the proper time, filed a petition for an injunction to prevent the incorporation, alleging that (1) the legal description was incorrect, (2) a majority of the inhabitants of the area proposed for incorporation did not sign the original petition and (3) the governing body of a town within three miles of Shannon Hills did not affirmatively consent to the incorporation. After hearing proof only with reference to the number of qualified voters and the number of inhabitants residing within the area, both appellants and appellees moved for a ruling in their favor. From a judgment of the trial court denying the petition for injunction, appellants appeal, contending:

POINT I. A majority of the inhabitants in the area proposed for incorporation did not sign the petition.

POINT II. The legal description and notice were incorrect thereby voiding the action for lack of notice.

POINT III. The city of Alexander did not legally consent to the incorporation.

The Saline County Clerk, George Ramsey, testified that he was familiar with the proposed area to be annexed, that it lay within two voting precincts — Otter “A” and Otter “B” — and that there would be no way of knowing for sure how many registered voters resided in the area. However, based upon his knowledge of the area, the people who came into his office from the area, the voter registration records kept in his office and his experience based upon the records, Mr. Ramsey estimated that there would be between 410 and 414 registered voters residing in the area proposed to be incorporated. Mr. Ramsey stated “that probably would be as close as you can get as far as an educated guess.”

The testimony of appellant Dunkum showed that he had actually counted 448 residences in the proposed area and that, based upon a census report showing 3.32 persons per household, he calculated there would be 1,466 inhabitants, including children and imbeciles, in the area. The testimony of Jean Higgins, an employee of Shannon Hills Water Company, showed that there were 444 water meters in operation when the petition was filed.

POINT I. Appellants contend that the term “inhabitants” in Ark. Stat. Ann. § 19-101 (Supp. 1977) and Ark. Stat. Ann. § 19-106 (Repl. 1968) must be construed to mean residents — i.e. include children and imbeciles. For the reasons hereinafter stated, we construe the term “inhabitants” as used in the subject statutes to mean qualified voters residing within the proposed town.

Ark. Stat. Ann. § 19-101 (Supp. 1977), in so far as pertinent, provides:

“When the inhabitants of a part of any county, not embraced within the limits of any city or incorporated town, shall desire to be organized into a city or town, they may apply by petition, in writing, signed by not less than one hundred fifty (150) qualified voters residing within the described territory, to the county court of the proper county, which petition shall describe the territory proposed to be embraced in such incorporated town, and have annexed thereto an accurate map or plat thereof shall state the name proposed for such incorporated town, and also name the person or persons authorized to act in behalf of the petitioners in prosecuting said petition. The county court shall not approve the incorporation of any municipality if any portion of the territory proposed to be embraced in such incorporated town shall lie within three (3) miles from the corporate limits of an existing municipal corporation unless the governing body of said municipal corporation has by written resolution affirmatively consented to said incorporation. ...”

Ark. Stat. Ann. § 19-103 (Repl. 1968), provides for a hearing to be held before the county court, and Ark. Stat. Ann. § 19-105 (Repl. 1968), gives anyone opposed to the incorporation the right to file a complaint in the circuit court for purpose of having the incorporation by the county court annulled. Ark. Stat. Ann. § 19-106 (Repl. 1968), provides:

“It shall be the duty of the court or judge to hear such complaint in a summary manner, receiving answers, affidavits and proofs, as may be deemed pertinent; and if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain the requisite number of inhabitants, or that a majority of them have not signed the original petition, or that the limits of said proposed incorporated town are unreasonably large or small, or are not properly and sufficiently described, then the said court or judge shall order the record of said incorporated town to be annulled; ...”

Acts 1975, No. 635 (Ark. Stat. Ann. § 19-101, supra), provides that, “When the inhabitants of a part of any county .. . shall desire to be organized into a city or town they may apply by petition in writing signed by not less than one hundred fifty (150) qualified voters residing within the described territory. . . .” Likewise, Ark. Stat. Ann. § 19-106, supra, provides that if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain “the requisite number of inhabitants or that a majority of them has not signed the petition,” then the judge shall annul the incorporation by the county court.

Simple sentence structure shows that the 1975 Act, supra, [Ark. Stat. Ann. § 19-101] qualified the term “inhabitants of a part of a county” to be qualified voters because it says that the inhabitants “may apply by petition . . . signed by not less than one hundred fifty (150) qualified voters residing within the described territory. . . .” Furthermore, the provision of Ark. Stat. Ann. § 19-106, supra, which authorizes the circuit court to annul the incorporation when it appears to the satisfaction of the court “that the proposed incorporated town does not contain the requisite number of inhabitants or that a majority of them have not signed the original petition. ..,” must refer back to the term “inhabitants” as used in Ark. Stat. Ann. § 19-101, supra. Since Ark. Stat. Ann. § 19-101, supra, authorizes the inhabitants to petition through qualified voters and Ark. Stat. Ann. § 19-106, supra, refers to “a majority of them [who] have not signed the original petition,” the term majority can only refer to the persons authorized to sign the petition — i.e. qualified voters.

In Town of Wrightsville v. Walton, 255 Ark. 523, 501 S.W. 2d 241 (1973), the argument made was that since Ark. Stat. Ann. § 19-101 then permitted the inhabitants to petition by 20 qualified voters, the proposed incorporators could incorporate by showing that of the 20 signers on the petition, only 11 had to be qualified voters. We were not there required to interpret what the term inhabitant meant.¹

In Town of Walnut v. Wade, 103 U.S. 683, 26 L. Ed. 526 (1880), there was before the court an Illinois Act which provided that a city or town could issue bonds for railroad stock when the amount thereof had been “first submitted to the inhabitants of such city . . . and approved by them; and upon application of any ten voters ... it shall be the duty of the clerk ... to immediately call an election. . . .’’In answer to the contention that the term inhabitants should include children and imbeciles the court stated: “To require the approval by a vote of the ‘inhabitants’ in this sense would be an absurdity. ”

In Brown v. Rushing, 70 Ark. 111, 66 S.W. 442 (1902), we had before us an act approved March 22, 1881, providing for the sale of school lands “whenever the inhabitants of any congressional township in this state shall desire the sale of the sixteenth section of such township . . . they may by petition, signed by a majority of the male inhabitants of such township, require the collector of taxes of the county wherein such school land is situated to sell the same,” and that “upon reception of such petition the collector shall ascertain that it is signed by a majority of the male inhabitants of such township.” In concluding that male inhabitants under the age of 21 years-should not be counted we said:

“The word ‘inhabitant’ has many meanings. It has been construed to mean an occupier of lands; a resident; a permanent resident; one having a domicil; a citizen; a qualified voter. Its construction has generally been governed by the connection in which it has been used. In Walnut v. Wade, 103 U.S. 683, the construction of an act was involved which authorized towns and cities to subscribe for stock in railroad companies, with the consent of the inhabitants of such city or town, to be ascertained by an election held for that purpose. The court held that the word ‘inhabitant,’ in that act, meant legal voters. In that case the meaning of the word was determined to some extent by the nature of the act to be done. In this case it should be determined in the same manner.

Under the statutes of this state a male person under the age of twenty-one years is incapable of managing his estate, or absolutely binding himself for the payment of money for anything except necessaries. He cannot devise his lands, nor participate in the annual school meetings nor vote in any election. As a general rule, he cannot do any act necessary to be done in the management and disposition of his lands, except subject to avoidance or ratification when he reaches the age of twenty-one years. In view of these laws, he was certainly not intended to be included in that class of inhabitants authorized to petition for the sale of a sixteenth section of land. The object of the act of 1881 in making a petition signed by a majority of the male inhabitants of a township necessary to procure such sales was doubtless for the purpose of enabling them to protect the interest of their township in such land; and this precludes the idea that any person the law presumes and pronounces, and is generally known to be, incompetent to perform such acts, should form any part of the majority. The act does not provide for its own defeat, and it would tend to do so if it included infants in the word ‘inhabitants.’ For in that event it would make the child in arms and male persons of all ages competent petitioners, and in some cases place it within the power of children to control such sales, and thereby rob the townships of the safeguards it intended to throw around them. If such was its intention, why were females, and especially adults, excluded? No such construction can reasonably be placed upon the act.”

The county clerk estimated that there were no more than 410 or 414 registered voters in the area proposed to be incorporated. If we follow appellants’ contention that the word “inhabitants” is equivalent to population, keeping in mind that only qualified voters are allowed to sign the petition, an anamolous result ensues. The circuit court in this case would have been required to annul the incorporation approved by the county court upon a petition signed by all 410 registered voters upon a mere showing that the total population — including children and imbeciles — was 1411 people. Even a showing of the proponents by calling all of the 1411 people in the area old enough to talk except appellant Dunkum to testify that they desired the area to be incorporated would not suffice, because the statute permits only qualified voters to sign the petition and then specifically requires that the petition be signed by a “majority” of the inhabitants. Appellants’ contention that the term “inhabitants” should be construed to include children and imbeciles is just as absurd as that proposed in Town of Walnut v. Wade, supra.

Appellants under this point also contend that appellees never proved that a majority of qualified voters in the proposed area signed the petition. We find no merit to this contention. In the first place, appellants in the trial court admitted that the burden of proof was upon them. In the second place the testimony of the county clerk as to the number of qualified voters in the area — i.e. 410 to 414 — was properly admitted, whether the testimony of the county clerk be considered opinion testimony of a lay witness, or an opinion of an expert. See Ark. Stat. Ann. § 28-1001, Rule 701 et seq.

POINT II. Appellants concede that there is evidence from which the trial court could conclude that the description in the petition was correct as filed. However, they contend that because the published notice used township 3 instead of township 1, the erroneous legal description in the published notice voids the incorporation. We disagree with appellants because Ark. Stat. Ann. § 19-101 (Supp. 1977) only requires the published notice to contain the substance of the petition and the time and place of the hearing thereof. The published notice here complied with those limited requirements.

POINT III. Finally, appellant contends that the City of Alexander did not legally consent to the incorporation — i.e. it did not affirmatively consent by written resolution as required by Ark. Stat. Ann. § 19-101 (Supp. 1977). Appellants did not ask the trial court to rule upon this issue, and of course we will not consider an issue raised for the first time on appeal. Furthermore, the burden of proof was admittedly upon appellants, and any failure of the record to contain any evidence on the issue is chargeable to the appellants rather than the appellees. In other words, the burden was upon appellants to show no consent by written resolution was obtained from the City of Alexander.

Affirmed.

Fogleman and Holt, JJ., dissent. Purtle, J., not participating.

1 The trial court in Wrightsville v. Walton, supra, with reference to the statute stated: “This simply means that upon its adjudication in Circuit Court, the court must be satisfied that a majority of the qualified voters inhabiting a proposed town must have indicated their preference for incorporation upon the initial petition filed in the County Court.” The appellee for affirmance also contended that inhabitant simply meant qualified voters. See brief filed on behalf of Fred Walton.