Craig v. Russellville Waterworks Improvement District

• Decision Date: 21 October 1907
• Citation: 105 S.W. 867,84 Ark. 390
• Parties: CRAIG v. RUSSELLVILLE WATERWORKS IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

105 S.W. 867

84 Ark. 390

CRAIG v. RUSSELLVILLE WATERWORKS IMPROVEMENT DISTRICT

Supreme Court of Arkansas

October 21, 1907

Appeal from Pope Chancery Court; Jordan Sellers, Special Chancellor reversed.

Judgement reversed and cause dismissed.

Ratcliffe & Fletcher, for appellant.

1. The act, if valid, suspends the operation of the general law in reference to the city of Russellville, and leaves it without power to establish other improvement districts of the whole or any part of the territory. It is in violation of art. 12 § 3, Const. The Legislature has no power to control the affairs of cities and towns except through general laws. 36 Ark. 166. As illustrating the difference between the power of the Legislature over counties, townships, etc., and over cities and towns, compare the case last cited with 33 Ark 497.

2. The act is in violation of art. 19, § 27, Const. Ark.; 72 Ark. 195; 42 Ark. 87; 187 U.S. 58.

3. It is in conflict with art. 5, § 24, forbidding the suspension of any general law for the benefit of "any particular individual, corporation or association," and also conflicts with art. 12, § 2, Const., forbidding the passage of any special act conferring corporate powers, etc. 36 Ark. 166; 67 Ark. 35; 4 Kan. 114; 3 Hill, 538; 28 Mich. 228.

4. Constitutional rights of individuals are involved here, and no presumption will be indulged that the Legislature has done its duty as in other special statutes before the enactment of which the Constitution requires that notice be given. 42 Ark. 87; 36 Ark. 175.

Brooks, Hays & Martin, for appellee; R. B. Wilson and J. T. Bullock, of counsel.

1. Article 12, § 3, Constitution, refers to cities and towns only, and has no reference to improvement district. This being a suit by an improvement district, the city, as such, has no interest in it. An improvement district is not a municipality nor the agent of one. 55 Ark. 148; 69 Ark. 284.

2. Unless the Constitution in plain terms or by necessary implication prohibits the passage of the act, it is valid. 72 Ark. 126; 164 U.S. 176; 21 Ark. 40; 59 Ark. 528; 170 U.S. 55; 58 Ark. 384. Presumptions are in favor of the regularity of legislative enactments. 52 Ark. 339; 16 N.E. 193; 101 Ind. 564 Cooley, Const. Lim. (5 Ed.), §§ 197, 201; 49 Ark. 231; 45 Ark. 400; 58 Ark. 407; 76 Ark. 200; 75 Ark. 120. Where one construction of a statute would render it void for conflict with the Constitution, and another would render it valid, the latter construction will be adopted. 36 Ark. 576; 69 Ark. 376.

OPINION

HILL, C. J.

The General Assembly passed an act, which was approved on the 18th day of February, 1907, entitled, "An act to create an Improvement District, composed of all the real estate within the corporate limits of the City of Russellville, Arkansas, and for the purpose of providing, constructing and maintaining a system of water works there and for other purposes." This act declared that "all the real estate within the corporate limits of the city of Russellville, Pope County, be and the same is hereby created into an improvement district, for the purpose, under the name and with the powers hereinafter specified." In brief, it was to provide for the construction, building, establishment and maintaining for the city of Russellville of a system of water works, and giving complete authority and power to construct the improvement and charge its cost upon the realty of the district. The business and affairs of the district were to be carried on by a board of public improvement which was named in the said act, vacancies to be filled by the city council. The act provides for the construction and maintenance of an improvement substantially as if an improvement district had been created under sections 5664-5742 of Kirby's Digest, except that there is no provision in this act providing for a majority in value of the owners of real property within the district consenting to the improvement being made, as is provided in section 5667 of the general law on the subject, as a condition precedent to the construction of the improvement.

This is a suit to charge the real estate of a property owner in said district with the assessment levied pursuant to said act, and to sell his real property, or so much thereof as may be necessary, to pay the assessment and cost of suit. The district prevailed in the chancery court, and the property owner has appealed.

Passing other questions presented by the appellant, this one is preeminent: Has the General Assembly power to create improvement districts in cities and towns, and authorize them to erect public improvements by taxation on real estate, without providing by law that the contemplated improvement shall only be made when the consent of a majority in value of the property owners adjoining the locality to be affected is obtained?

Section 27 of art. 19 of the Constitution 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 made ad valorem and uniform."

This section is found in the miscellaneous provisions, and is connected with no preceding section. It is inserted to prevent misapprehension and remove doubt as to the power of the General Assembly to authorize assessments in towns and cities for the purpose of local improvements. Carson v. St. Francis Levee District, 59 Ark. 513; Little Rock v. Board of Improvements, 42 Ark. 152. The many restrictions on the power of the Legislature in regard to cities and towns may well have raised doubt as to this power; and the framers of the Constitution, after removing this doubt, then provided that the power should only be exercised within the limits therein mentioned, namely, such assessments must be based on the consent of the majority in value of the property owners owning property adjoining the locality to be affected, and the assessments to be ad valorem and uniform. This restriction only reaches to local improvements in cities and towns, and leaves the General Assembly free to exercise its sovereign will in this respect elsewhere in the State. The power to create districts for local improvements and to provide a method for taxation therein, and the breadth of that power, and the narrow scope of judicial inquiry into it, have been considered by this court in recent cases. Carson v. St. Francis Levee District, 59 Ark. 513; St. Louis S.W. Ry. Co. v. Red River Levee District, 81 Ark. 562; Coffman v. Drainage Dist., 83 Ark. 54, 103 S.W. 179; Sudberry v. Graves, 83 Ark. 344, 103 S.W. 728.

But this is the first case which presents the exercise of this power when lettered by the constitutional limitation above quoted. The origin of these limitations upon the lawmaking power was discussed in Crane v. Siloam Springs, 67 Ark. 30, 55 S.W. 955. It is therein shown that this requirement for the consent of a majority in local government is a part of the heritage of the Anglo-Saxon, which has, in various forms, been imbedded in the constitutions of the different States. Mr. Justice RIDDICK. speaking for the court, said:

"The framers of that instrument by this section, which expressly...