Butler v. Board of Directors of Fourche Drainage District

• Decision Date: 01 May 1911
• Citation: 137 S.W. 251,99 Ark. 100
• Parties: BUTLER v. BOARD OF DIRECTORS OF FOURCHE DRAINAGE DISTRICT
• Court: Arkansas Supreme Court

137 S.W. 251

99 Ark. 100

BUTLER v. BOARD OF DIRECTORS OF FOURCHE DRAINAGE DISTRICT

Supreme Court of Arkansas

May 1, 1911

Appeal from Pulaski Chancery Court; John E. Martineau. Chancellor affirmed.

Decree affirmed.

Rose Hemingway, Cantrell & Lougborough, for appellants.

1. The same principle is involved in this case as in the case of Craig v. Russellville Waterworks Improvement District, 84 Ark. 390, and should control. It is too narrow a construction of sec. 27, art. 19, Const., in that case enforced, to say that it applies only to improvements made within the city or town. If the constitutional provision is to be ignored because there are lands outside the city included in the district, then by a adding a merely nominal exterior territory, the provision can in practice be evaded in any case.

2. The act of 1909 amends section 4 of the act of 1907 without setting it out, as required by sec. 22, art. 5, Const. Compliance with this requirement is essential. 49 Ark. 131; 52 Ark. 290.

3. The benefit to appellant's property, if any, is remote indirect and speculative. Only direct benefits can be assessed. 64 Ark. 555.

Coleman & Lewis, for appellee.

Sec 27, art. 19, Const., while applicable to cities and towns, is not controlling where an improvement district is formed by the Legislature which embraces cities and adjacent territory without the city limits. 59 Ark. 513; 96 Ark. 410; 97 Ark. 322. The Legislature has authority to create improvement districts composed of cities and adjacent territory lying without the city limits, and to provide for assessments and for the collection of same. 133 Ill. 466; 8 O. St. 338; State & Fed. Control of Persons and Property, 711.

2. The act of 1909 does not amend, extend or confer the provisions of the act of 1907. It is therefore not in conflict with sec. 22, art. 5, Const. It is clearly a repeal of sec. 4 of the act of 1907, and in no other way affects the act of 1907. 49 Ark. 131, 134; 61 Ark. 622. The constitutional provision does not apply to implied amendments. 64 Ark. 83; 77 Ark. 383; 52 Ark. 326; 29 Ark. 252.

3. The mere fact that appellants' property in the city is above overflow, which is conceded, is no reason for holding that it is not benefitted by the district, nor any reason or excuse why a tax should not be levied and collected to pay for the improvement. It is of no moment that appellants' property is not benefitted to the extent of other property adjacent to the overflow sought to be abated. 96 Ark. 410; 133 Ill. 446; 8 O. St. 338; Hamilton, Law of Special Assessments, §§ 190, 192, 194, 213, 216; 21 Ark. 60; 64 Ark. 259; 59 Ark. 514, 537.

MCCULLOCH C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

Appellant owns real property in the city of Little Rock, and in an action instituted in the chancery court of Pulaski County he attacked the validity of an act of the General Assembly, creating and laying off an improvement district "for the drainage of certain portions of the Fourche bottoms and contiguous territory." The boundaries of the district include the whole of the city of Little Rock and several adjoining townships outside of the city. Fourche Bayou, the stream to be drained, lies wholly without the city limits, but the bottom or flooded lowlands extend into the city limits. The statute, as subsequently amended, authorizes the board of directors of the district to proceed with the making of the improvement, the assessment and collection of taxes, the borrowing of money, etc., without procuring the assent of a majority in value of the owners of real property in the district. There is a provision of the Constitution of 1874 which reads as follows:

"Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform." Art. 19, § 27.

It was decided by this court in Craig v. Russellville Waterworks Improvement District, 84 Ark. 390, 105 S.W. 867, that a statute creating an improvement district in the city of Russellville for the purpose of constructing waterworks was unconstitutional in not providing for obtaining the consent of a majority in value of the owners of real property within the district.

In a recent case we decided that "there is no constitutional requirement that the creation of local improvement districts outside of cities and towns shall be based upon the consent of a majority in value of the property owners." Alexander v. Board of Directors of Crawford County Levee District, 97 Ark. 322, 134 S.W. 618.

The question is now presented to us for the first time, whether the above-quoted section of the Constitution applies to and forbids the creation of an improvement district lying partly in and partly outside of a city or town without obtaining the consent of the property owners. The Constitution of the State is not a grant or an enumeration of powers vested in the legislative department, but is a limitation upon the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution. State v. Ashley, 1 Ark. 513.

We are of the opinion that the above-quoted provision of the Constitution applies only to assessments for improvements purely local to a municipality, and not to local improvements covering wider territory, even though a part or all of the municipality be included therein. An improvement district like this, covering territory both in and out of a municipal corporation, does not fall within either the letter or the spirit of the constitutional provision. It is not a local improvement in a town or city, and therefore not within the letter of the constitutional prohibition. It is not within its spirit, for, there being no inhibition upon the creation of districts outside of cities or towns, there is no reason for construing the provision to mean that the consent of the property-owners inside of the city or town must be obtained, whilst the wishes of the...