McRaven v. Clancy

171 S.W. 88, 115 Ark. 163, 1914 Ark. LEXIS 108

Opinion

Wood, J.,

(after ¡stating the facts). In Voss v. Reyburn, 104 Ark. 298-301, this court, following the decision in Crane v. Siloam Springs, 67 Ark. 30, held, that “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.” We further held, that, “the publication of this notice in the manner prescribed by the statute is jurisdictional, and the district is not created without it. ’ ’ See Norton v. Bacon, 113 Ark. 566.

The omission from the publication ¡of one lot which was included in the petition and ordinance creating^ the district can not be said to be an immaterial variance. The statute* being mandatory and jurisdictional, must be strictly complied with, and other notice than that contained in the statute of the passage of the ordinance is ■not sufficient and can not be substituted for the notice prescribed by the statute. It matters not, therefore, that the owners of the omitted lots had notice in some other way of ,the proposed creation of the district. The district was not created without the notice prescribed by the statute.

It follows that the court erred in dismissing the complaint, and the judgment is therefore reversed and the cause will be remanded with 'directions to enter a decree peremptorily enjoining the appellee from proceeding to make the proposed improvement under the supposed ■authority of the ordinance creating improvement district No. 6 of the town of Pulaski Heights.

Footnotes

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Kirby’s Digest, § 5666. (Rep.)