City of Little Rock v. Katzenstein

• Decision Date: 12 October 1889
• Citation: 12 S.W. 198
• Parties: CITY OF LITTLE ROCK <I>et al.</I> <I>v.</I> KATZENSTEIN.
• Court: Arkansas Supreme Court

Page 198

12 S.W. 198

CITY OF LITTLE ROCK et al.

v.KATZENSTEIN.

Supreme Court of Arkansas.

October 12, 1889.

Appeal from chancery court, Pulaski county; D. W. CARROLL, Chancellor.

One Katzenstein filed a bill to enjoin the city of Little Rock and others from exacting an improvement tax from him.A demurrer to the bill was overruled, and defendants appeal.

U. M. & G. B. Rose, for appellants.W. S. McCain, for appellee.

SANDELS, J.

Section 27 of article 19 of the constitution of Arkansas is 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."Section 826, Mansf.Dig. Laws Ark., is as follows: "Sec. 826.When any ten resident owners of real property in any such city, or of any portion thereof, shall petition the city council to take steps towards the making of any such local improvement, it shall be the duty of the council to at once lay off the whole city, if the whole of the desired improvement be general and local in its nature to said city, or the portion thereof mentioned in the petition, if it be limited to a part of said city only, into one or more improvement districts, designating the boundaries of such district, so that it may be easily distinguished; and each district, if more than one, shall be designated by number, and by the object of the proposed improvement."Pursuant to the foregoing provisions, the city council of the city of Little Rock, on the 10th day of May, 1887, by ordinance created "Sidewalk Improvement DistrictNo. 2 of the City of Little Rock," for the purpose of building a sidewalk on Second street.Its boundaries were defined; and it may be said, generally, embraced half of each block on either side of Second street, in said city, from Main street to the western boundary of the district.Block 82 of said city lies on the south side of Second street, and a diagram of the same, with the numbers of its lots, is here given:

                            SECOND STREET
                               ---------------------------------------
                              |         1         |        12         |
                              |-------------------|-------------------|
                              |         2         |        11         |
                              |-------------------|-------------------|
                              |         3         |        10         |
                CENTER STREET |-------------------|-------------------|
                              |         4         |         9         |
                              |-------------------|-------------------|
                              |         5         |         8         |
                              |-------------------|-------------------|
                              |         6         |         7         |
                               ---------------------------------------
                

The district for the improvement of Second street embraced lots 1, 2, 3, 10, 11, and 12.The council proceeded regularly and in due course; the levy was made upon all the property in the district included in the district, to pay the costs of said improvement; and, within the period of limitation prescribed by law, i. e., within 20 days from the publication of the ordinance levying said tax, the appellee, Katzenstein, filed the bill herein, alleging that he was the owner of lot 3, in block 82, and praying that the defendants be enjoined from exacting or claiming any tax from him, under said ordinance.He insists that said lot 3 does not abut upon, and is not contiguous or adjoining, Second street; that he owns no property between lot 3 and Second street; and that said lots are 50 feet wide.He does not claim that his property is not affected by the improvements.The defendants demurred generally.Their demurrer was overruled, and, declining to plead further, the preliminary injunction granted by the chancellor was made perpetual, and they appealed.

Two questions are presented for determination: First, what is "property adjoining the locality to be affected?"Second.To what extent is the action of the city council, in placing lands in an improvement district, conclusive of the fact that it is "property adjoining the locality to be affected?"The two questions may be considered together.Appellee insists that all reference to "benefits" must be excluded from consideration, and that only property abutting upon the sidewalk or other improvement, or owned by one who also owns abutting lots, can be subjected to...