Gibson v. Incorporated Town of Hoxie , 110 Ark. 544 ( 1913 )

Smith, J.,

(after stating the facts). It appears that these ordinances were not properly published. Ordinance No. 51 was published in the attempt to comply with the provisions of section 5666 of Kirby’s Digest, which section requires the publication of the ordinance establishing the district, and ordinance No. 56 was published in the attempt to comply with the provisions of section 5685 of Kirby’s Digest, which section requires the publication of the ordinance levying the assessments against the property of the district; and both sections require that the publication be made in some newspaper published in the city or town in which the district is organized.

It has been expressly decided that the provisions of section 5666 are mandatory, and those of section 5685 are equally so. Crane v. Siloam Springs, 67 Ark. 30; Voss v. Reyburn, 104 Ark. 301.

The Legislature had the right to prescribe the terms upon which an improvement district might be created, and it made the publication of these ordinances in some newspaper published in the town a prerequisite. Doubtless, the Legislature thought it unwise to permit the establishment of these districts in towns which were too small to have, or which did not have, a newspaper therein. But we need not seek the legislative reason; it is sufficient if we know the legislative will. And publication in a newspaper published in another town did not meet the requirements of the law. Jackson v. Beatty, 68 Ark. 273.

But both sections, 5666 and 5685, of Kirby’s Digest, were amended by Act No. 5 of the Acts of 1913, approved June 30, 1913, page 27. Section 5666 is amended to provide that hereafter the publication shall be made in some newspaper published in the city or town where the district is established, if there be such paper, and, if not, that the publication shall be made in some newspaper published in the same county and having a circulation in such city or town, with the proviso that any district heretofore formed, where publication has been made according to the provisions of the act as amended, shall be as valid as if publication had been made under the strict letter of the section amended. The amendment to section 5685 provided that publication might be made in the same manner as was provided for the publication required by section 5666.

But no attempt was made to cure the failure to give notice of the assessments, and we need not discuss what the 'effect of a general curative act would be, which was applicable to all districts generally, but in which there was no showing that the Legislature had ascertained and, declared that the assessments cured by the legislative act had been made according to the benefits received by each tract of land within the improvement districts. It was intimated, but not decided, in the case of Sudberry v. Graves, 83 Ark. 348, that the Legislature could not have delegated to the assessing officers the authority to levy assessments without notice to the land owners, hut, it is unnecessary here, as it was unnecessary there, to decide that question.

We think the curative act was valid, and its effect is to render ordinance number 51 valid and to make the improvement district an existing entity. The publication of the ordinance establishing the district might have been dispensed with, as section 5685 provided for giving notice to the property owners, and fixed a time within which they might show cause against the assessment of their property. The rule in such cases is stated in the opinion in the case of Sudberry v. Graves, supra, as follows:

“This court has adopted the following rule stated by Judge Cooley: ‘If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consist in doing some act, or in the mode or manner of doing some act, which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.’ Cooley’s Const. Lim. (7 ed.), p. 531; Green v. Abraham, 43 Ark. 420.

‘ ‘ On the other hand, the Legislature can not cure the omission of an act which it could not in the first place have dispensed with, nor validate a proceeding wholly void because of a failure to comply with a jurisdictional requirement. Cooley’s Const. Lim., p. 530; Gray’s Lim. of Taxing Powers, § 1249; Hamilton’s Law of Special Assessments, § 817.

But although there is a valid district, there is no valid and enforceable assessment, and the court below was in error in finding for appellee and in dissolving the temporary restraining order which had been granted at the institution of the suit. The decree of the court below is therfore reversed, and tbe canse will be remanded with directions to make permanent tbe injunction restraining tbe attempt to collect tbe assessments against tbe lands described in tbe complaints.