Brizzolara v. Fort Smith

• Decision Date: 06 July 1908
• Citation: 112 S.W. 181,87 Ark. 85
• Parties: BRIZZOLARA v. FORT SMITH
• Court: Arkansas Supreme Court

112 S.W. 181

87 Ark. 85

BRIZZOLARA v. FORT SMITH

Supreme Court of Arkansas

July 6, 1908

Appeal from Sebastian Chancery Court, Fort Smith District; J. Virgil Bourland, Chancellor; reversed.

Judgment reversed and cause remanded.

James Brizzolara and T. S. Osborne, for appellant.

I. Appellants have the right to bring this suit. Art. 16, § 13, Constitution. Chancery has the power to inquire into municipal exactions and to enjoin their collection, and to inquire into and enjoin the enforcements of any kind of illegal burden imposed upon the citizen or his property. 34 Ark. 603; 39 Ark. 412; 33 Ark. 441; 46 Ark. 471; Kirby's Dig. § 5485; 53 Ark. 205; 52 Ark. 541; 2 Dillon, Mun Corp., §§ 914, 915, 916; Tiedeman, Mun. Corp § 395. Equity will take jurisdiction to avoid a multiplicity of suits. Fletcher's Eq. Pl. & Pr §§ 25, 26, 109; Pomeroy's Eq. Jur., §§ 243, 245, 255, 269; 4 Ark. 302; 33 Ark. 633. See, also, Tiedeman, Mun. Corp., § 397, note 6; 30 Ark. 609; 19 Ark. 139; 22 Ark. 103; 24 Ark. 431; 169 U.S. 466; 101 U.S. 601. A taxpayer has an interest in any action of the municipality that tends to increase the burden of taxation; and if the proposed action be illegal, he can sue for an injunction to restrain it. 3 Am. & Eng. Dec. in Eq., 574; 1 Id. 66; 1 High on Inj., §§ 12, 61-63a; 1 Pomeroy on Eq. Jur., § 255; 175 Ill. 445; 43 F. 824.

2. Neither the act of April 8, 1903, nor of March 21, 1885, Kirby's Dig., §§ 5542 and 5648, confers upon a city the power to impose fines for failure or refusal to construct curbing or guttering. The city is without power to compel curbing and guttering. The ordinance being clearly ultra vires and illegal and highly penal in its nature, affecting all the property owners of the city, injunction will lie. 2 Humph. (Tenn.) 428; 8 Lea, 127; 93 Tenn. 81; 26 L.R.A. 541; 101 Tenn. 182.

3. The ordinance, in so far as relates to curbing and guttering, is unconstitutional, because it is either an attempt to levy a tax in a manner not authorized by the Constitution, or an attempt to levy an assessment for local improvement, not based upon the consent of the majority in value of the property owners, and such tax or assessment is not ad valorem. Art. 12, § 4, Const. 1874; art. 19, § 27, Id.; art. 15, § 5, Const.; 32 Ark. 31; 48 Ark. 251; 31 Ark. 462; 45 Ark. 336; 71 Ark. 4; 43 Iowa 524; 67 Ala. 588; Cooley, Const. Lim. (2d Ed.), 191; 46 Mich. 565; 23 How. (U. S.), 435; 1 Dillon, Mun. Corp., (4th Ed. ), § 89; 1 Abbott, Mun. Corp., 184 et seq.; McQuillin, Mun. Ordinances, § 48; Tiedeman, Mun. Corp., § 110.

4. Having no inherent power to levy taxes or make assessments, a municipal corporation can levy only such taxes and make only such assessments as are authorized by law. 30 Ark. 435; 1 Abbott on Mun. Corp., 678-9, 786; Tiedeman on Mun. Corp., § 256; 54 Ark. 500; 80 Pa. St., 505; 2 Mod. Law Mun. Corp., § 1229. The power to tax or assess cannot be implied from the general welfare clause. Municipal corporations have no right under the police power to tax or make assessments. Abbott on Mun. Corp., 671, note 2; 22 Am. & Eng. Enc. of L., (2d Ed.), 917; Tiedeman on Mun. Corp., § 253; 1 Mod. Law Mun. Corp., § 612.

5. Sidewalks are intended only for pedestrians, but curbing and guttering are essential parts of the roadway. 138 Mass. 555; 59 Ark. 459; Elliott on Roads and Streets (2d Ed.), § 20; 11 Kans. 384; McQuillin, Mun. Ord., § 562; 49 Ark. 204; Webster's Dict. "Gutter;" 138 Cal. 364; 42 N.J.L. 510; Hamilton, Law of Special Assessments, § 251.

6. The ordinance is invalid because unreasonable in failing to provide for proper filling, ditching, etc.

J. F. O'Melia and F. A. Youmans, for appellees.

The power to compel property owners to put in curbing may be granted by the Legislature as an exercise of the police power. The act of March 21, 1885, Kirby's Dig., § 4648, was held to be a valid exercise of the police power. 49 Ark. 199. The curb was sufficiently designated by the term "sidewalk improvement." The act of April 8, 1903, Kirby's Dig. § 5542, confers "enlarged and additional powers, and in this act the gutter comes within the term "curbing improvement," just as the curb comes within the term "sidewalk improvement" used in the former act. 64 Ark. 555; 1 Green's Law Rep. (N. J.) 196; 22 Am. & Eng. Enc. of L., 922.

2. The mere failure of the ordinance to provide that the city should do the grading is not sufficient to render it void.

3. While it is true that section 5542, Kirby's Digest, referred to by appellants, does not authorize the imposition of a fine, it is authorized by section 5648; but, if there were no power to impose a fine, that would not make the whole ordinance void.

OPINION

BATTLE, J.

On the 16th day of October, 1906, the city council of Fort Smith, Arkansas, passed an ordinance No. 737, section one of which is as follows:

"Section 1. That section 1978 of Read & McDonough's Digest of the Ordinances of Fort Smith, Arkansas, be amended to read as follows:

"Owners or occupants compelled to build--The owners, occupants or agents of all lots or part thereof, blocks or parts thereof, in the city of Fort Smith, Arkansas, and all other real property in said city abutting on any street or streets or parks or squares in said city, shall be required and hereby compelled to build and construct permanent sidewalks and curbings and guttering, or repair the same, on all said lots and blocks or part thereof in said city and on all real property in said city not subdivided into lots and blocks according to the specifications and out of the material hereinafter prescribed."

Section 9 of the ordinance is in part as follows: "When required, said owner, occupant or agent is required to construct, rebuild or repair any foot pavement or sidewalk improvement or curbing or guttering within thirty days from and after the service of notice of the passage by the city council of any resolution requiring any such foot pavement or sidewalk improvement or curbing or guttering to be constructed, rebuilt or repaired. The notice herein required shall be given and served as follows:" etc.

Section 10 of the same ordinance is as follows:

'The said city after the expiration of thirty (30) days from the giving of the notice as aforesaid in section 2016 shall have the right to do and perform said improvement or repair, and said city shall have a lien for the costs thereof upon said property, and shall have the right to enforce the same as provided in section 5542 of Kirby's Digest of the Statutes of the State of Arkansas."

Section 11 is as follows: "Any owner, occupant or agent who fails to build, construct or repair his sidewalk improvement or curbing and guttering after thirty (30) days' notice as provided in section 2016 shall be guilty of a misdemeanor and shall be fined for each offense the sum of fifteen dollars ($ 15.00) and each day's delay shall be a separate offense."

On the 25th day of October, 1907, the same city council passed a resolution, in part, as follows:

"Be it resolved by the city council of the city of Fort Smith, Arkansas: That the owners, occupants and agents of owners of real property in said city adjoining the streets and portions of streets hereinafter named be and they are hereby required within thirty (30) days from and after the service upon them, respectively, of a copy of this resolution, to construct curbing and guttering along the street frontage of the lots and parts of lots and other real property owned or occupied by them respectively, adjoining said streets and portions of streets, in conformity with ordinances No. 705 and 737 of said city."

On the 17th day of December, 1907, James Brizzolara and others brought suit in the Sebastian Chancery Court for the Fort Smith District, and alleged in their complaint in part, as follows:

"Now comes said plaintiffs on behalf of themselves and on behalf of all others interested, and who may desire to become parties herein, and for cause of action against said defendants, said mayor and aldermen representing said defendant city in their official capacity, allege:

"That said plaintiffs are citizens of the city of Fort Smith, Arkansas, and owners of real property therein; that they own property abutting on the streets and highways of said city, and are taxpayers on said real property; that said defendants are endeavoring to enforce illegal exactions and liens against these plaintiffs and against their said property, and against the inhabitants of said city, by threatening, demanding and compelling said plaintiffs to lay, build and construct in front of their said property on the streets of said city, beyond the curb line on said streets, a concrete gutter thirty inches in width as provided and required by ordinance numbered 737 of the ordinances of the city of Fort Smith, Arkansas, a true, full and complete copy of which said ordinance, including its title and caption, is hereto attached, marked "Exhibit A" and made part of this complaint; that, in aid of the enforcement of said ordinance, the city council of said city on the 25th day of October, 1907, passed and adopted a resolution, a true, full and complete copy of which resolution is hereto attached, marked "Exhibit B" and made part of this complaint.

"That said ordinance and resolution, or so much thereof as requires the property owner or the occupant of property thereby affected to lay, build and construct a concrete gutter in the street beyond the curb line in front of said property, and permitting and impowering the city, on failure of the property owner so to do, to lay, build and construct said gutter, making the expense and costs thereof a lien on said property abutting on said streets, is illegal and void.

"That said ordinance is unreasonable.

"That...