City of Little Rock v. Town of North Little Rock

• Decision Date: 06 February 1904
• Citation: 79 S.W. 785
• Parties: CITY OF LITTLE ROCK et al. v. TOWN OF NORTH LITTLE ROCK et al.
• Court: Arkansas Supreme Court

79 S.W. 785

CITY OF LITTLE ROCK et al. v. TOWN OF NORTH LITTLE ROCK et al.

Supreme Court of Arkansas.

February 6, 1904.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by the city of Little Rock and others against the town of North Little Rock and others, to restrain proceedings for the annexation of a portion of the city to defendant town. From a judgment sustaining a demurrer to the bill, complainants appeal. Affirmed.

In 1903 (Acts 1903, p. 148) the Legislature passed an act entitled "An act to amend the laws in relation to municipal corporations," which contains the following provisions:

"Section 1. That any municipal corporation, or any part thereof, may be annexed and made part of any other municipal corporation located within one mile of the municipal corporation to which the same is to be annexed, in whole or in part, but before such annexation shall be made or declared, the council or board of aldermen of either the corporation to which said other territory is to be annexed, or that which is to be so annexed in whole or in part, shall order an election, after giving thirty days' notice thereof by publication once a week in a newspaper, if one be published or circulated in said territory, and by printed posters posted in conspicuous places in said territory, the giving of which notice shall be proved by the affidavit of two or more persons cognizant of the fact that such notice has been duly given. But no such election shall be ordered by such council or board of aldermen until petitions asking that said election shall be held have been filed with such board or council, signed by a majority of the qualified electors in said territory to be annexed and that to which the annexation is to be made respectively, that is, said majority of petitioners shall be required from each of said respective parts separately considered, and not a majority resident in the combined territory as it would be after the consolidation or annexation had been effected. Said petitions shall be accompanied by a map or a plat showing plainly the territory to be annexed, and the said council or board shall not order such election, notwithstanding such petitions may be filed, unless it shall appear that the boundaries of the corporation, thus to be formed by annexation or consolidation as aforesaid will promote the convenience and welfare of the people of said combined territory, and be susceptible of making a compact and proper municipal corporation."

The act then proceeds to declare that, unless a majority of all the votes cast are in favor of the annexation or consolidation, the proposition shall be deemed to be rejected, but, if a majority be in favor thereof, the council shall so declare, and place the same on its records, and thereafter the consolidated territory and the inhabitants thereof shall constitute a municipal corporation under the name of the corporation to which the annexation is made. It is unnecessary to set out the remainder of the statute, which has reference mainly to the manner of holding the election. Under this statute the town council of the town of North Little Rock, on the 18th day of June, ordered that an election be held on the 21st day of July, 1903, submitting to the voters of the incorporated town of North Little Rock and to the voters of the Eighth Ward of the city of Little Rock the proposition as to whether the territory now embraced in the Eighth Ward of that city should be annexed to the town of North Little Rock. Thereupon the city of Little Rock, the mayor and members of the city council, and certain other citizens and owners of property in the city of Little Rock filed a complaint in the chancery court of Pulaski county, alleging that the statute in question was unconstitutional and void for several reasons stated in the complaint; that, unless the town of North Little Rock be restrained from proceeding further under said statute, the election would be held, and that the town would assume jurisdiction over the Eighth Ward of the city of Little Rock; that the result would be that both the city and the town would be attempting to exercise jurisdiction over the same territory; and that great confusion and uncertainty as to the validity of licenses, privileges, and franchises granted by either corporation in said ward would exist, to the irreparable injury of the city and state. Wherefore they prayed that an injunction be granted restraining the town from any further proceedings under the act, and from in any way assuming jurisdiction over the territory embraced in the Eighth Ward. The town of North Little Rock and other defendants appeared by attorney and filed a demurrer to the complaint, stating that the complaint did not state facts sufficient to constitute a cause of action or to entitle plaintiffs to the relief asked. After consideration thereof the chancellor sustained the demurrer, and dismissed the complaint for want of equity, and the plaintiffs appealed.

Ashley Cockrell, City Atty. (W. L. & W. J. Terry and Morris M. Cohn, of counsel), for appellants. James P. Clarke, Rose, Hemingway & Rose, and Blackwood & Williams, for appellees.

RIDDICK, J. (after stating the facts).

This is an action brought by the city of Little Rock and other parties to enjoin the town of North Little Rock and its mayor and the members of its common council from proceeding further under the act of March 16, 1903, in their attempt to annex the territory embraced in the Eighth Ward of the city of Little Rock to the incorporated town of North Little Rock. The statute under which the annexation is attempted has been assailed by counsel for the city on many grounds, and we will now state the conclusions we have reached in reference thereto.

In the first place, we will say that the language of the act seems to us plainly to authorize the annexation of a part of one city to another town or city when they are so situated in respect to each other as to bring them within the scope of the statute, and, if the relief asked by the plaintiffs can be granted, it must rest on the fact that the statute is invalid for want of power in the Legislature to enact it. It may be well also to repeat in this connection the somewhat trite remark that the mere fact that a statute may seem to be more or less unreasonable and unwise does not justify a court in annulling it, where no constitutional provision is infringed, for courts do not sit to supervise legislation and keep it within the bounds of propriety and common sense. The remedy against legislation that is merely unwise or impolitic is by an appeal, not to the courts, but to the Legislature that enacted the law, and which can repeal or amend it as justice and equity may require. Cooley, Const. Lim. (4th Ed.) p. 204. It is equally clear that we cannot inquire into the motives of the Legislature in passing the act nor into the means by which they were induced to enact it. The allegation in the complaint that the passage of the act was obtained in a fraudulent and surreptitious manner cannot be considered, for we have no right to inquire into or consider such matters. If courts should enter upon such inquiries, and annul laws because they seem to be unwise or impolitic, or because improper influence was brought to bear upon the Legislature to secure their passage, no one could rely upon any law until it had been submitted to the courts for their approval. The adoption of such a rule would invest the courts with legislative as well as judicial powers, and would be clearly in violation of the provision of our Constitution which declares that one department of the government shall not exercise the powers conferred upon another and different department.

The question before us, then, is not whether the act is impolitic and unwise, nor whether its passage was secured by improper influences, but whether the Legislature had power to pass it. The act in question relates to the change of the boundaries between, and the consolidation of, towns — a matter over which the Legislature has a large discretion; and there can be no question of the power of the Legislature to pass this statute unless its power in that respect has been limited by some provisions of our state Constitution. Counsel for the city say that the act is void because, as they contend, it authorizes the town of North Little Rock to take private property without due process of law and without compensation. But we find nothing in the act that justifies such a conclusion. The act does not purport to deal with property of any kind, but only with the territory of towns and cities, which, under certain circumstances, it provides may be annexed to other corporations of that kind. Speaking of this subject, Judge Dillon, in his work on Municipal Corporations, says that "it has often been held that if a corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is added to another corporation, unless some provision is made in the act respecting the property and the existing liability of the old corporation, the latter will be entitled to all the property, and be solely answerable for all the liabilities." 1 Dillon on Municipal Corporations, § 188; Laramie Co. v. Albany Co., 92 U. S. 307, 23 L. Ed. 552.

We are not called upon to consider or decide in this case what property of the city of Little Rock will pass by these annexation proceedings to the town of North Little Rock, further than may be necessary in order to decide the validity of the act in question. As before stated, the act does not refer to property in any way, nor undertake to transfer private property belonging to the city of Little Rock to the town of North Little Rock. And the fact that the city of Little Rock is left to bear all the debts of the city previously incurred does not affect the validity of the act. If there be any injustice in that respect, it can be corrected by subsequent legis...