{
  "id": 1360473,
  "name": "Kempner v. Sanders",
  "name_abbreviation": "Kempner v. Sanders",
  "decision_date": "1922-10-23",
  "docket_number": "",
  "first_page": "321",
  "last_page": "328",
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    {
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      "cite": "155 Ark. 321"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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  "last_updated": "2023-07-14T16:22:10.433219+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Kempner v. Sanders."
    ],
    "opinions": [
      {
        "text": "Wood, J.\nStreet Improvement District No. 303 of Little Eock was created by the city council on January 24, 1921, under the authority of \u00a7\u00a7 5647, 5649 and 5652 of Crawford & Moses\u2019 Digest. The preliminary petition for the improvement, after describing the property to be embraced in tbe district, prayed tbe city council to \u201ctake steps for the local improvement by repaving with an asphaltic surface and otherwise improving Main Street from the south curb of Markham Street to the south curb on Eighth Street, and to that end to at once lay off as an improvement district, to be known as Street Improvement District No. 303, the aforesaid property in said city of Little Rock.\u201d\nThe ordinance creating the district provided as follows : \u201cSec. 1. That Street Improvement District No. 303 of .the city of Little Rock be and the same is hereby created and established for the purpose of repaving with an asphaltic surface and otherwise improving Main Street from the south curb on.Markham Street to the south curb on Eighth Street; to provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining, in accordance with an act of the General Assembly of the State of Arkansas, entitled, \u2018An act to regulate the manner of assessing real property for local improvements in cities of the first class,\u2019 approved March 22,1881, and amendments thereto.\u201d (Here follows a description of the boundaries of the district, embracing all of the real estate as described in- the preliminary petition).\nThis action was instituted by the appellant. He set up in his complaint that the appellees were the duly elected and qualified board of improvement for district No. 303, supra; that he was the\u2019 owner of real property, and a taxpayer in the district. After setting out the provisions of the preliminary petition and the ordinance as above set forth, he alleged \u201cthat the board of commissioners contemplated a contract not only for the repaving of Main Street with an asphaltic surface, but also for the removal of the present wood blocks, brick and sand cushion and cleaning the foundation, putting in a special binder course and requiring the contractor to maintain the improvemeht for a period of five years; also the installation of certain catch-basins, pipes, curb renewals and radius corners, and putting in steel headers between the street railway tracks and that portion of the street to be paved by the district. That the repaving of the street with an asphaltic surface will cost the district approximately $35,000, but if the board is allowed and permitted to construct the additional improvements above specified, this will cost approximately $10,000 more, which will be an extra burden upon the taxpayers within the district, and which they did not contemplate nor authorize in their preliminary or first petition to the-city council.\u201d The appellant alleged that the ordinance establishing the district as aforesaid was void; that the preliminary petition was too vague and indefinite to meet the requirements of the law. He prayed that the appellees be perpetually enjoined from issuing bonds and proceeding with the work of the improvement, and that the district be declared invalid, 'and the assessments levied against the property owners be declared null and void.\nThe appellees, in their answer, admitted that they contemplated making the improvements as set up in the complaint, and admitted that it would cost the sums therein'specified. The answer alleged that the additional improvements contemplated, and specified in the complaint, were to cost the sum of $10,000, and were necessary and incidental to the repaving in order to construct the pavement - in such workmanlike manner that no repairs would be necessary for five years, the contractor being required to maintain it for that period of time. The answer details the particulars, alleging that it was necessary to put in catch basins in order to protect the asphaltic pavement, and that it was also necessary to remove some old and worn pipes and replace them with hew ones; that, in order to lay the new pavement, the curbing will have to be removed and a new curb and new corners built; that the installation of steel headers between the pavement to be laid by the district and the pavement which the street railway company is to lay at the same time is necessary to protect the pavement of the district against damage by the street railway company whenever its pavement should be removed or opened. The appellees concluded their answer by embodying in it a general demurrer to the appellant\u2019s complaint.\nThe cause was heard upon the complaint, the answer and the demurrers, and certified copies of the preliminary petition and the ordinance above mentioned. The court entered a decree sustaining the demurrer to the complaint and overruling the demurrer to the answer, and dismissing the complaint for want of equity. The appellant stood on his demurrer and appeals.\n1. It is first contended by the appellant that the language of the preliminary petition, to-wit: \u201cBy repaving with an asphaltic surface and otherwise improving Main Street from the south curb on Markham Street to the south curb on Eighth Street\u201d is too vague to advise the property owners of the character of the improvement to be undertaken.\nWe have held in many cases that the preliminary petition is jurisdictional and must meet the requirements of the statute. In Cox v. Road Imp. Dist. No. 8 of Lonoke Comity, 118 Ark. 119, where the oases are collated, we said: \u201cThere 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. \u2019 \u2019 By the language of the. petition the property owners were certainly advised that the local improvement contemplated was the repaving of Main Street in the city of Little Rock, from and to the points (jqsignated, with an asphaltic surface. This language 1% certainly definite enough to describe the character of the improvement to be undertaken.\nBut appellant contends that the clause \u201cand otherwise improving\u201d makes the antecedent language uncertain and makes it doubtful as to the kind of improvement contemplated. But, taking the sentence as a whole, we are convinced that it is not susceptible of such interpretation. The meaning and effect of the conjunction \u201cand\u201d was to indicate that the board of improvement could add to and- join with the repaving of Main Street such other and further work as was necessary and incident thereto and included in the repaving of Main Street with an asphaltic surface. In other words, the main purpose of the petition was the repaving of Main Street. The words \u201cand otherwise improving\u201d were manifestly added in order to give the board of improvement the power to do whatever was necessary to effectuate the main purpose. Certainly these words cannot be interpreted to clothe the board \u201cwith a roving commission controlled only by their own discretion to make any kind of improvement they desired.\u201d The only improvement they could make, as we view the petition, was the repaving of Main Street with an asphaltic surface and the doing of such other work in connection therewith as was incident thereto and essential to making the repavement of Main Street a successful -and complete improvement, such as was contemplated by the petition.\nWhile, to give the council jurisdiction, it is necessary that the preliminary petition describe with certainty the improvement proposed, yet this may be done in general terms, leaving the details and plans of the improvement to be worked out by the board after the district is established. Cox v. Road Imp. Dist., supra. See, also, Board of Improvement v. Brun, 105 Ark. 65; McDonnell v. Imp. Dist., 97 Ark. 339. We conclude that the preliminary petition was sufficient.\n2. ' The ordinance, after establishing the district and reciting the improvement to be made precisely as set forth in the preliminary petition, adds this clause: \u201cTo provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining.\u201d It follows from what we have already said that the ordinance establishing the district is not void because it authorizes the drainage wher\u00e9 necessary, and other work necessary and incidental to the paving. Interpreting the ordinance in connection with the petition, it is manifest that it only contemplates the doing of such drainage and other work as may be necessary to effectuate the main purpose of the ordinance establishing the district, which, as we have said, is to repave Main Street with an asphaltic surface. Construing the ordinance as a whole and giving the words their plain and natural meaning, we conclude that no work is authorized to be done under the ordinance other than that which is necessary and incident to the repaving of Main Street and to make such repavement adequate and durable.\nThe allegations of the answer, which are admitted by the demurrer, show that the drainage and other work therein specified were necessary and incident to the work of repaving the street. It is alleged that such drainage, and other work specified, would only cost approximately $10,000. The allegations of the answer as to the additional improvements necessary and incident to the work of repaving Main Street, and as to the cost thereof, show that this additional work was not a separate and independent undertaking. It was a part of, and embraced within, the petition for an ordinance creating the district for the repaving of Main Street.\nThe case of Nelson v. Nelson, 146 Ark. 362, upon which appellant relies, is wholly unlike this case, because in that case the use of the disjunctive \u201cor\u201d in the ordinance establishing the district left it entirely optional with the commissioners as to whether they would do draining or grading, or curbing or guttering, or simply paving. \u201cIn other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them combined, or by some other method not mentioned, if the commissioners deemed such method to the best interest of the district.\u201d\nIn the present case the conjunction \u201cand\u201d makes it certain that the board of improvement was to repave Main Street and do such drainage and other work as was incident and necessary to the repaving, which additional work is specifically described in the answer and alleged to be necessary and incident to the proper paving of the street as contemplated. Here the allegations of the answer, admitted to be true, make the affirmative showing that it was not practicable to do' the work of repaving Main Street in the manner contemplated by the ordinance without also at the same time doing the drainage and other work specified in the answer. Meyer v. Board of Imp. of Paving Dist. No. 3, 148 Ark. 623-634; Board of Imp. v. Brun, supra.\nThe decree is in all things correct, and it is therefore affirmed.",
        "type": "majority",
        "author": "Wood, J."
      }
    ],
    "attorneys": [
      "Abner McGehee, for appellant.",
      "8. L. White, for appellee."
    ],
    "corrections": "",
    "head_matter": "Kempner v. Sanders.\nOpinion delivered October 23, 1922.\n1. Municipal corporations \u2014 improvement district \u2014 preliminary petition. \u2014 The preliminary petition for a street paving district (under Crawford & Moses\u2019 Dig., \u00a7 5649) sufficiently described the improvement as \u201crepaving with an asphaltic surface and otherwise improving\u201d the street; the words \u201cand otherwise improving\u201d referring to such work as was incident and essential to making the repavement a successful and complete improvement, and it being enough to describe the improvement in general terms while leaving the details and plans to he worked out by 'the board of improvement after the district is established.\n2. Municipal corporations \u2014 improvement district \u2014 ordinance.\u2014 An ordinance creating a paving district, providing for repaving a certain street and for drainage where necessary \u201cand all other work necessary and incidental to said paving and draining\u201d does not authorize any work not necessary and incident to the main purpose of the repaving.\n. Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;\naffirmed.\nAbner McGehee, for appellant.\nThe preliminary petition should set out with particularity the class of improvement to be undertaken, so that property owners might be fully advised thereof before signing. Otherwise the commissioners would be provided with a commission controlled only by their own discretion. 118 Ark. 119; 241 S. W. (Ark.) 370. There should be no uncertainty about the improvement proposed. 130 Ark. 44.\n8. L. White, for appellee.\nThe preliminary petition is not required to state in detail the plans of the improvement. These must of necessity be worked out by the board of improvement after the establishment of the district. 176 S. W. (Ark.) 678; 97 Ark. 339. The purpose of the district is, of course, fixed by the petition and ordinance, and unless therein specifically limited the board may exercise its own discretion in doing those things which are necessarily incident to the construction of the improvement. 105 Ark. 65. The work undertaken was necessary to the permanent improvement desired. The words \u2018 \u2018 and otherwise improving\u201d as used in the petition, could not in any way be construed to constitute a \u201croving commission\u201d on the part of the board, as was done in the case at 118 Ark. 119, nor could they be said to be too indefinite to advise property owners of what was to be done as was said in the case of Nelson v. Nelson, 146 Ark. 362, both of which cases are relied upon by appellant."
  },
  "file_name": "0321-01",
  "first_page_order": 345,
  "last_page_order": 352
}