Hamilton v. Board of Improvement of Light And Water District No. 2, of Wynne, Arkansas

• Decision Date: 10 April 1916
• Docket Number: 313
• Citation: 185 S.W. 440,123 Ark. 327
• Parties: HAMILTON v. BOARD OF IMPROVEMENT OF LIGHT AND WATER DISTRICT NO. 2, OF WYNNE, ARKANSAS
• Court: Arkansas Supreme Court

185 S.W. 440

123 Ark. 327

HAMILTON v. BOARD OF IMPROVEMENT OF LIGHT AND WATER DISTRICT NO. 2, OF WYNNE, ARKANSAS

No. 313

Supreme Court of Arkansas

April 10, 1916

Appeal from Cross Chancery Court; T. E. Lines, Special Chancellor reversed.

Decree reversed and cause remanded.

S. W Ogan, for appellant.

1. The act attempting to validate the district is unconstitutional and void. Art. 19, § 27, Constitution; 58 Ark. 117, 121; 26 Md. 195; 79 Ind. 274; 74 Mo. 457.

2. It levies an assessment without the consent of a majority of the property holders within the district. It also attempts to divest vested rights. Cooley, Const. Lim. 238; 54 Tex. 153; 31 Am. Rep. 218; 10 Barb. 223.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellees.

1. The act is not unconstitutional nor void. Its curative provisions dealt only with matters within the province of the Legislature and remedied those features that it could have dispensed with in the first instance. 83 Ark. 344; 112 Id. 357; 110 Id. 544; 114 Id. 23; 99 Id. 508; 29 Id. 99; 110 Id 511, 514; 117 Ark. 93.

MCCULLOCH C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

In the year 1912 there was an attempt to organize, under the general statutes of the State, an improvement district in the City of Wynne for the purpose of reconstructing, taking over and extending the system of waterworks theretofore constructed and put in operation by another improvement district. The district was declared to be organized and the petition of property owners asking for the construction of the improvement was duly filed with the city council, but subsequently litigation arose concerning the validity of the organization and on appeal to this court it was decided that the statutes conferred no authority for the organization of an improvement district for the purpose of reconstructing and taking over an improvement constructed by another district, for the reason that there was no legal warrant for such merger of the interests of the two districts or for the new district to take over the property of the old one. The organization was therefore declared to be invalid. Sembler v. Water & Light Improvement District No. 2, 109 Ark. 90, 158 S.W. 972.

The General Assembly of 1915 ^[*] enacted a special statute entitled "An Act validating the organization of Water and Light Improvement District No. 2 of Wynne, and authorizing the organization of improvement districts for the purpose of reconstructing and extending waterworks and electric light plants." The first section of the statute declared that the organization of said improvement district "is hereby validated and confirmed" and that "the plans of the commissioners heretofore reported to the city council in the City of Wynne are hereby confirmed."

Section 2 of the act reads as follows: "As more than a majority of the owners of real property within the district aforesaid petitioned the City Council of the City of Wynne for the making of the improvements described in section 1 of this act, and consented that the cost thereof be assessed against the real property in the district according to the benefits received, now, therefore, if any owner of real estate within said district shall desire to withdraw his name from said petition and cancel his consent to the making of said improvement, he may do so within thirty days after the passage of this act by filing with the commissioners of said district a petition in writing, signed by himself, asking that his name be withdrawn from said petition and his consent cancelled. Other owners of real estate within the district may sign said petition within said thirty days."

Section 4 provides that the chancery court should, on the first day that it is in session more than thirty days after the passage of this act, "ascertain whether said petition is signed by a majority in value of the owners of real property within said district, as shown by the last county assessment, and shall eliminate from said petition all signatures in which the parties signing have filed with the commissioners in writing, expressing their desire to withdraw their names from said petition," and that "if on said hearing the said court shall ascertain that said petition is signed by a majority in value of the owners of the real property within said district, as shown by the last county assessment, it shall enter a judgment accordingly, and its finding in the premises shall be conclusive, subject to the right of appeal to the Supreme Court," and that if the court should find that said petition was not signed by a majority in value it should enter a judgment terminating the existence of the district.

The commissioners of the district are attempting to proceed under the new statute and this is an action instituted by a property owner of the district to restrain them from such proceeding, it being contended that the special act of the Legislature attempting to validate the organization of the district and to authorize further proceedings thereunder is unconstitutional and void. The chancery court dismissed the complaint for want of equity and an appeal has been prosecuted to this court.

It is a misapplication of the term to speak of the special statute under consideration as a validating act for the former organization of District No. 2 was unauthorized and void. It had no legal existence and it was so declared by the decision of this court. If the special statute has any force at all, its effect is to create a new organization where none existed prior thereto. The Legislature may by special statute create improvement districts in cities and towns. It may determine the necessity for the improvement and the method of ascertaining the benefits, or it may determine for itself what the benefits are and levy the assessments. But there is a constitutional guaranty that so far as concerns improvement districts in cities and towns, the power of taxation is dependent upon the expressed consent of the majority in value of the property owners within the locality to be affected. Constitution of 1874, article 19, section 27.

In construing this provision of the Constitution with respect to its requirement for ascertaining the consent of the property owners, we have said: "It created a vested property right in owners of real estate in cities and towns. It is a guaranty to them that their property shall not be taxed for local improvements except upon an ad valorem basis, and upon the consent of a majority in value of those to be affected by such improvement. Having this constitutional guaranty that their property shall not be subject to assessment except in this manner, then, until it is assessed in this manner, they have a right to object to any taxation upon it for...