Opinion
Rehearing Denied Nov. 12, 1985.
[287 Ark. 58-A] DUDLEY, Justice.
On petition for rehearing the petitioners, City of Springdale, et al., resolutely contend that this Court erred in basing its opinion upon the city's failure to meet one of the five annexation requirements of Ark.Stat.Ann. § 19-307.1 (Repl.1980) because, petitioners contend, the issue was not raised in the trial court. 287 Ark. 55, 696 S.W.2d 723 (1985).
Clearly, an issue not raised at the trial court level may not be raised for the first time on appeal. Wasp Oil, Inc. v. Arkansas Oils&sGas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). In the oral argument before this Court, the petitioners claimed that the annexation requirements of the statute were not raised at the trial level. At that time we questioned the claim. We then discussed the matter in our decisional conference and again at our opinion conference. We concluded that while the statute was not expressly mentioned in the complaint, the matter was plainly and fairly raised at the trial level.
The reasons for our decision were as follows: First, the evidence, as set out in the opinion, showed that there was a failure to meet any one of the five statutory requirements. Second, the trial attorneys, who are also the attorneys on appeal, plainly argued the matter to the trial court. We quote a part of petitioners' argument to the trial court which includes quotations [287 Ark. 58-B] from 19-307.1:
Mr. Herdlinger: [Petitioners' attorney] Now, let's go back to the first argument that,--that Mr. Evans gave. He says there's no purposes, but he just read you parts of sentences. When we go to the purposes clause, number three says: "When the lands furnish the abode of a densely settled community. And, he stopped right there, but, the sentence goes on: "Or, represent the actual growth of the municipality beyond it's boundary." And, that's exactly what it does. Look at the boundaries. These are just areas that represent the growth patterns outside of those boundaries. The city has grown to the stage that it's time to expand, expand those areas, in. And, that's what's represented by the red marks (indicating) out there. It also says, number four, it says, either, or, it could be any of these things, that's the argument for number three; but, the argument, also, is true for argument four: "When the lands are needed for any proper municipal purposes, such as the extension of police regulation." There are other municipal purposes, obviously. The continuation of roads....
Third, the trial court was cognizant of the issue. We quote a part of the argument which was made by respondents' attorney and the court's response:
Mr. Evans: [Respondents' attorney] Your Honor, I think I'd like to go back to those two sections, 19-307.1 and 19-307.2. 19-307.1 and 19-307.2 both were passed in 1975. To use 19-307.2 the city would have to have the requirements under 19-307.1 Those are the five things they must have. It says: "Any municipality may, by two-thirds of the total members making up its governing body, adopt an ordinance to annex lands contiguous to said municipality, provided the lands are ..."; and, then, it lists the five things: Platted and held for sale for use as municipal plots. Whether it was platted or not, if held to be sold as suburban property. When the lands furnish an abode for a densely settled community, or represent the growth of the municipality beyond its legal boundaries. When it's necessary for police regulation; and five, when they are valuable by reason of their adaptability [287 Ark. 58-C] for prospective municipal uses. There is all the stipulated testimony in the record, couched with those five, none of which are met. There is testimony from the mayor which shows none of these five have been met. There was testimony from Mr. Berry which showed none of these five had been met. There was testimony from Mr. Reed that also showed that about five of them,--of the five,--have not been met. Reading what he said and applying it. Now, if that is so, if the city didn't have the platted lands held or sold as municipal plots, the densely populated area, the need for the police protection; if they didn't have all of those things, they could not go under 19-307.2. They are companion statutes, which means you have got to go back to the area, and let their vote count. 19-307.1 and 19-307.2 are steps. They are stairsteps in the process that has to be gone through. If these five things exist, you can use
The Court: --Either. It says, either.
Mr. Evans: Yes, sir.
The Court: Either one of them will work.
Mr. Evans: Yes, sir, I am saying none of the five were even met. Police regulation? They don't need it. Everything we went through with that
The Court: --Well, what about three and four?
Mr. Evans: A densley settled community? There's seven hundred people on seven thousand acres. Seven hundred homes in seven thousand acres. That's not densely settled or populated....
Fourth, the petitioners did not claim surprise and responded to all arguments concerning the statute.
After considering the matter, we concluded that the petitioners' failure to meet any one of the five statutory annexation [287 Ark. 58-D] requirements was plainly and fairly raised in the trial court, and that we should decide the case on the basis stated in the opinion.
Rehearing denied.
PURTLE, J., not participating.