City of Little Rock v. Raines, 5--4177

• Decision Date: 20 February 1967
• Docket Number: No. 5--4177,5--4177
• Parties: CITY OF LITTLE ROCK, Ark., Appellant, v. Samuel Lanier RAINES, III, and Twilla Raines, His Wife, and Mary J. Raines, Appellees.
• Court: Arkansas Supreme Court

Page 486

411 S.W.2d 486

241 Ark. 1071

CITY OF LITTLE ROCK, Ark., Appellant, v. Samuel Lanier RAINES, III, and Twilla Raines, His Wife, and Mary J. Raines, Appellees.

No. 5--4177.

Supreme Court of Arkansas.

Feb. 20, 1967.

Joe Kemp, Riddick Riffel, and Moses, McClellan, Arnold, Owen & McDermott, Little Rock, for appellant.

Patten & Brown, and Catlett & Henderson, Little Rock, for appellees.

FOGLEMAN, Justice.

The fundamental question in this case is whether the City of Little Rock has the authority to exercise the power of eminent domain to take private property for use as an industrial park. This involves consideration of two legal questions: (1) Has the power of eminent domain been delegated to the city for this purpose? (2) Is the use for this purpose a public use satisfying constitutional requirements for the exercise of the power?

On June 21, 1965 the City of Little Rock passed an ordinance (No. 11,612) condemning property of appellees, used for agricultural purposes outside the city limits, for the stated purpose of constructing a port, establishing an industrial park, and for related facilities. This ordinance directed the City Attorney to file condemnation proceedings. Before this was done, appellees filed this action in the Pulaski Chancery Court on October 8, 1965. They alleged that the city was purporting to take their lands for a private purpose--the establishment of an industrial park. They asserted that this action was beyond the city's powers and contrary to the Constitutions of Arkansas and the United States, thus rendering the ordinance void and creating a cloud upon appellees' title. Alternatively, appellees prayed for just compensation. The city filed its answer, but before trial it filed two condemnation suits against different appellees in the Pulaski Circuit Court. Each of the appellees answered and successfully moved the transfer of the cases to the chancery court where, by agreement, all cases were consolidated. After hearing testimony on April 27th and 28th, the chancellor rendered a decree on September 27, 1966, holding the city ordinances null and void, insofar as they applied to the lands of appellees.

In the decree the court made these pertinent findings:

1. That the city ordinances purport to condemn the appellees' property for the purpose of constructing a port, establishing an industrial park and related facilities;

2. that the use for which the city proposed to condemn the property of appellees was to place improvements thereon and otherwise prepare the land for industrial sites, and to sell or lease said lands to private industries;

3. that these lands were proposed to be used other than as a site for a port facility;

4. that the proposed use of these lands is not a 'public purpose of use permitted by the Constitution of the State of Arkansas under the right of eminent domain of the City of Little Rock, Arkansas.'

Appellant contends: That the lands of appellees were being taken for an industrial park that constituted an over-all proposal for port facilities adjacent to the industrial project; that this use was for a public and lawful purpose; that the necessity for the proposed taking was concluded by (1) the vote of the electors of the city approving the issuance of bonds under the authority of Amendment 49 to the Constitution of Arkansas, and (2) the action of the city; and that the city has the authority, both express and implied, to condemn the properties involved.

An understanding of the basis of these findings requires some review of the record. For this purpose we will, for the most part, review the action of appellant and the testimony offered by it.

The title of Ordinance No. 11,612 states that the property is 'to be used for the purposes of constructing a port, establishing an industrial park, and for related facilities.' The statement of necessity in this section is that the properties 'are necessary for the purpose of creating and developing a port facility and terminal, and an industrial park and related facilities.' (Italics ours)

Appellees filed a motion to require appellant to produce plans for development of the lands of appellees prepared by Garver and Garver, Forrest and Cotton, or by any other person, firm or corporation. In response, appellant stated that it had adopted no plan prepared by those named or any other persons, firm or corporation and added:

'As indicated in the Complaint the Defendant proposes to develop the lands of the Plaintiff, when acquired, for general industrial purposes but has established no detailed land use plan for such development.' (Italics ours)

In its condemnation complaint against appellees, Samuel L. Raines, et ux., appellant alleges that it had declared that the acquisition of the lands was 'necessary for public use in its undertaking in creating, constructing and developing an industrial park, a port facility and related facilities.' (Italics ours) The complaint of the city in the case against appellee Mary J. Raines states the proposed use to be 'in creating, constructing and developing an industrial park and related facilities', without mention of a port.

The preamble to City Ordinance No. 11,674, repealing an ordinance condemning lands of another owner and a section of the ordinance by which appellant sought to condemn appellees' property along with that of other owners, states that the condemnation 'was for lands to be used and utilized in the establishment and construction of an industrial park and for related facilities', without mentioning a port facility.

During the examination of one E. L. Killingsworth, Jr., a civil engineer called as a witness by appellant, one of the city's attorneys asked whether the witness prepared 'the preliminary plans and the cost figures for this industrial park to be operated in relation with the Port Authority' and offered the plans prepared by him. This exhibit called the project 'Little Rock Port Industrial Park'. It consisted of six sheets, and portrayed apparent proposals for water distribution lines, railroad lines, streets, sanitary sewers and storm drainage, along with a proposed typical street section. Nowhere is a port mentioned, except in the title, and its proposed location is not shown. From examination of this plan in conjunction with other exhibits and testimony, it appears that a road or street would be provided to cross a levee into the proposed port site. Mr. Fred I. Brown, Jr., currently Chairman of the Little Rock Port Authority, testified that this agency was 'charged with building a port and developing an adjoining industrial district on the Arkansas River'. Even though he stated that the two would necessarily be considered a unit, he stated that the purpose was 'to build a municipal dock with a related industrial area.' Little Rock Resolution No. 3,428 was introduced through this witness. Its preamble contains a finding that it is necessary and vital to proceed with acquisition of lands 'to be utilized for industrial development and related port and port terminal facilities purposes'. The reason Mr. Brown gave for the plan to sell or lease the property acquired to private business was the inability of anyone to make money out of it and the fact that the project is a nonprofit venture. He further testified that neither the port nor the industrial district would be a profitable venture and that the city only had the money to develop 129 acres of the projected 1,200 acres. (Italics ours)

Mr. Harry Pittard, the Director of Pulaski County Flood Control and Navigation Committee, a group that served in an advisory capacity in the formulation of this proposed district, when asked his understanding of the use to be made of the district answered, 'Part of it as an industrial site and part of it as a port site.' He said that at the time of his appraisals of appellees' property the existing plans were only to develop it as an industrial site and port facility. (Italics ours)

Mr. Floyd Fulkerson, another witness for appellant, stated that the port on the Arkansas River would support an industrial district.

It might further be noted that no plans exhibited by appellant showed anything more than the location of a proposed port site. They showed nothing purporting to be a plan of development of the port site or an interrelation of the two facilities whatever.

It appears to us that the trial court's factual findings that the proposed taking of appellees' property is for the establishment of an industrial park, by placing improvements thereon and otherwise preparing the lands for industrial sites to be sold or leased to private industries and that the use is for other than a port facility are supported by a preponderance of the evidence. Certainly it cannot he said that they are clearly against the preponderance of the evidence.

The city contends that it has the power of eminent domain for taking the property of appellees for industrial park purposes upon these bases:

(1) As a power fairly implied in or incident to the express powers granted by Amendment No. 49 to the State Constitution authorizing cities and counties to issue bonds and levy taxes 'for the purpose of securing and developing industry within or near the municipality holding the election' and by the provisions of the Act implementing the Amendment (Act 9 of 1960, Extraordinary Session, Ark.Stat.Ann. § 13--1602 (Supp.1965)).

(2) As an express grant by Act 231 of 1937, as amended by Act 189 of 1947 (Ark.Stat.Ann. §§ 19--2702 to 19--2719 (Repl.1956)), authorizing cities to purchase, construct, establish and operate ports, harbors and barge terminals.

(3) As an express grant by Act 167 of 1947 (Ark.Stat.Ann. §§ 19--2720 to 19--2731 (Repl. 1956)), authorizing cities to create port authorities.

(4) As an express grant by Act 206 of 1963 (Ark.Stat.Ann. §§ 19--3101 to 19--3108 (Supp.1965)), an Act implementing Amendment No. 18 to the Constitution which provided for the levy of a city tax to be...