Crane v. Siloam Springs

• Citation: 55 S.W. 955,67 Ark. 30
• Parties: CRANE v. SILOAM SPRINGS
• Decision Date: 28 October 1899
• Court: Supreme Court of Arkansas

55 S.W. 955

67 Ark. 30

CRANE v. SILOAM SPRINGS

Supreme Court of Arkansas

October 28, 1899

Appeal from Benton Circuit Court in Chancery, EDWARD S. McDANIEL Judge.

STATEMENT BY THE COURT.

On February 10, 1897, the city council of Siloam Springs, a city of the second class, passed an ordinance laying off the whole of the city into a district for the purpose of constructing and maintaining a system of waterworks for the city. Afterwards, on April 19th, the council passed another ordinance assessing the cost of making such improvement upon the real property in the district, and directing that it be levied and collected in successive annual installments, so that the assessment for each year shall be one per cent of the value of the real property in the district. The council on the day it created the waterworks district, passed another ordinance creating an improvement district for the purpose of erecting and maintaining electric lights in the city.

The appellants, J. E. Crane, et al., on the 20th day of August 1897, brought this action to enjoin the collection of the assessment levied for the erection of the waterworks. As grounds for relief they allege, among other matters:

1st. That the ordinance creating the district was not read on three different days, nor the rules requiring the same to be read suspended.

2d. That the ordinance establishing the district was not published within five days after the designation of the district.

3d. That the council created two districts covering the same territory, and assessed for the two improvements sums in excess of 20 per cent. of the value of the real property of the district.

4th. That the council had no authority to create an improvement district including all the real property in the city for the purpose of creating a system of water-works.

The defendants demurred to the complaint, and the circuit court sustained the demurrer, and dismissed the complaint.

Judgment reversed and cause remanded.

J. A. Rice and L. H. McGill, for appellants.

For the general provisions of the constitution governing taxation by municipalities, see Const. art. 12, sec 3; Ib. art. 19, sec. 27. Municipal corporations also have power to provide for a water supply and the lighting of streets and alleys. Sand. & H. Dig., §§ 5134-5-6. But this can be accomplished only by taxation of all property, real and personal, in the municipality, within the limits of five miles. The Acts of March 22, 1881, (Acts 1881, 161), and of February 19, 1889, (Acts 1889, 17), authorizing local improvements in towns and cities by the formation of improvement districts, in so far as they attempt to authorize the inclosure of a whole town or city in an improvement district, are not within the constitutional provisions authorizing local improvements. These acts apply only to such property as is located within a city, which is adjoining to or near the improvement, and which will be benefited thereby to a degree in excess of the benefits to the use of the city generally. 52 Ark. 107; 25 Am. & Eng. Enc. Law, 497-8. Tte only direct authority to construct water-works is by municipal taxation. Their exclusion in the Act of April 12, 1893, was at most a mere expression of legislative opinion on the subject, and does not bind this cause. 59 Ark. 441. The authority to levy an assessment must be distinctly and directly made. 25 Am. & Eng. Enc. Law, 514. The levying of the assessments for local improvements is based upon the consent of the property owners and the authorities are only their agents. 42 Ark. 152; 50 Ark. 116; 55 Ark. 148. The special assessment is enforced only by reason of the special benefits conferred. 25 Am. & Eng. Enc. Law, 496-7; 48 Ark. 370. The presumption is not conclusive that a tract included in such an assessment is specially benefited. 52 Ark. 107; 59 Ark. 344. The statutory requirements as to the publication of the ordinances and conduct of the board are intended for the protection of the property owner, and must be complied with strictly. 25 Am. & Eng. Enc. Law,, 537-554; 59 Ark. 344; 50 Ark. 116. Since there is nothing in the record to show when the ordinance was published, it cannot be determined upon demurrer whether or not the twenty-day statute of limitation (Sand. & H. Dig., § 5336) applies: Without the petition of a majority in value of property holders, there was no authority to levy the assessment. 50 Ark. 116; 59 Ark. 344; 25 Am. & Eng. Enc. Law, 533.

E. P. Watson, for appellees.

The council had authority to create an improvement district for the purpose of making any local improvements of a public nature. Const. sec. 27, art. 19; 42 Ark. 152. It is a question of law as to what improvements are within the general authorized power conferred by the constitution, and the courts determine each case as it arises. Cooley, Tax. 609, 610. Water pipes are. Cooley, Tax. 621. Also lighting streets by gas. Id. 621. The statutes of this state authorize the councils of towns and cities to make assessments for water and lighting plants. Act April 12, 1893; Act June 26, 1897 (p. 114); Sand. & H. Dig., § 5321. The act of Feb. 19, 1881 (Sand. & H. Dig. § 5321, supra), being in the nature of a declaratory statute, and having been passed before the assessments complained of, is binding on appellants. Cooley, Const. Lim. 92-96. The assessment of property for a local improvement, levied upon petition of the property owners, is not a tax. Cooley, Taxation, 621. When an improvement must of necessity benefit the whole city, the council may, upon being petitioned, lay off the whole city into an improvement district. Sand. & H. Dig. § 5321, 5322. Except when attacked for fraud or demonstrable mistake, the action of the council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be effected. 52 Ark. 112; Cooley, Taxation, 638-40. The presumption is that the ordinance was duly published. 24 Ark. 402; 30 Ark. 72; 49 Ark. 449; 50 Ark. 276; 45 Ark. 295; 19 Am. & Eng. Enc. Law, 42, 50, 43. The burden of disproving this was on appellants. 53 Ark. 377; 56 Ark. 272. Appellants are barred by the twenty days statute of limitation. Sand. & H. Dig., § 5336.

J. A. Rice and L. H. McGill, for appellants, in reply.

On the general principles involved, see also 172 U.S. 269; Cooley, Taxation, 641.

OPINION

RIDDICK, J., (after stating the facts.)

This is an action to enjoin the collection of an assessment made upon real property in the city of Siloam Springs, and the questions presented arose on a demurrer to the complaint. The assessment was made for the purpose of constructing and maintaining a general system of waterworks for the city. The whole area of the city was laid off into an improvement district for that purpose, and the first question presented is whether the city council had power to lay off the whole city into an improvement district. It is admitted that our statute expressly authorizes the city or town council to lay off the whole city or town into an improvement district for the purpose of making a local improvement, when, to quote the language of the act, "the whole of the desired improvement be general and local in its nature to said town." Sand. & H. Dig., § 5322.

But it is said that an improvement benefiting the real property of the whole city is not a local improvement, within the meaning of our constitution, which impliedly forbids assessments in towns and cities for other than local improvements, and that the statute above quoted is, therefore, unconstitutional and void to that extent. The section of the constitution referred to 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." Sec. 27, art. 19, Const.

Now, in endeavoring to ascertain the meaning of the different provisions of our state constitution, we should remember that many of them had their origin in events long past, and which are recorded in the history of the English people. It is therefore proper that we should consider this history in ascertaining the object of these provisions and the meaning of the language used. The doctrine of local assessments for local improvements to which the provision under consideration refers is not altogether of modern origin. "It had its origin and development," said the Supreme Court of Mississippi, "in the principle of local self-government characteristic of free institutions, founded by the Anglo-Saxon race, the leaving to each local community the due administration of the affairs in which it had an exceptive, peculiar and local interest." Macon v. Patty, 57 Miss. 378, 399.

Ages of ceaseless struggle for local self-government firmly imbedded this idea in the race to which we belong.^[*] "The several state constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose thereupon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance." Cooley's Const. Lim. (4 Ed.) 230.

It is well also, to observe, in this connection, that the municipal bodies formed for local government have not only "their public or political character in which they exercise a part of the sovereign power of the state for government purposes they have their private character, in which, for the benefit or convenience of their own citizens, they exercise powers...