Hodges v. Board of Improvement of Waterworks Improvement District No. 22 of Texarkana

• Decision Date: 01 March 1915
• Docket Number: 219
• Parties: HODGES, SECRETARY OF STATE v. BOARD OF IMPROVEMENT OF WATERWORKS IMPROVEMENT DISTRICT No. 22 OF TEXARKANA
• Court: Arkansas Supreme Court

174 S.W. 542

117 Ark. 266

HODGES, SECRETARY OF STATE v. BOARD OF IMPROVEMENT OF WATERWORKS IMPROVEMENT DISTRICT No. 22 OF TEXARKANA

No. 219

Supreme Court of Arkansas

March 1, 1915

Appeal from Pulaski Chancery Court; John E. Mar-tineau, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellee instituted this action in the chancery court against appellant to restrain him, as Secretary of State, from certifying out to be voted upon by the electors of the city of Texarkana, Ordinance B-191, being an ordinance levying the assessments of benefits against the real property in Waterworks Improvement District No. 22, in the city of Texarkana, Arkansas.

On March 14, 1914, the city of Texarkana duly created Waterworks Improvement District No. 22, which included the whole area of the city of Texarkana, Arkansas, for the purpose of obtaining, constructing, and equipping an adequate system of waterworks. The majority in value of the property owners in the said district filed a petition with the city council praying that said improvement be made. The petition designated the nature of the improvement to be undertaken and asked that the costs thereof be assessed and charged upon the real property within the district. The city council appointed John P. Cline, Q. O. Turner and A. B. Little, owners of real property within the district, to compose a board of improvement for the district. The board of assessors was duly appointed and on November 13, 1914, filed with the city clerk the assessment of the benefits against the real property in said district. On November 24, 1914, pursuant to the prayer of the petitioners, the city council by Ordinance B-191, duly levied the assessment of benefits against the real property within said district. On December 14, 1914, certain electors of the city of Texarkana filed their petition with the Secretary of State praying that said Ordinance B-191 be referred to the voters of the city of Texarkana to be voted upon at the general city election on the first Tuesday of April, 1915. The Secretary of State was preparing to refer said ordinance to the electors at said election when a temporary injunction was granted against him, when the board of improvement commissioners first instituted this action. When the case came on for final hearing the court found that the ordinance in question was not a proper ordinance to be referred to the electors of the city of Texarkana for approval or rejection, and a permanent injunction was issued against the Secretary of State as prayed for in the complaint. The case is here on appeal.

Decree affirmed.

Wm L. Moose, Attorney General, W. H. Arnold and James D. Head, for appellant.

1. In passing the ordinance in question, the city council was not exercising a police power, for this is a levy of a special tax for the purpose of constructing waterworks in the city. 5 McQuillin on Mun. Corp., § 2717, pars. 4326-7.

The act itself having specified the only exceptions to the grant of this power to order a referendum, it exists in all other eases save those falling within the exceptions. Acts 1913 pp. 563, 565.

2. No exception is reserved by the act from the power of the people to order a referendum on matters involving the taxing power unless the ordinance be for the maintenance of the municipal government in some of its branches. An improvement tax, this court has held, is not "taxes" within the meaning of the law, and that while "they are laid under the taxing power, and are, in a certain sense, taxes, yet, they are a peculiar class of taxes, and are not within the meaning of that term as it is usually employed in our Constitution and statutes." 59 Ark. 513-531; 89 Ark. 513.

As there is no exception in the act itself, from the power of reference given to the people, in favor of special assessments, the court can not engraft on the act by way of amendment exceptions not found within its terms. 144 N.W 730; 5 L. R. A. 115; 104 Ark. 583, 596.

3. The referendum act is not in violation of the Constitution. Art 19, § 27.

When an improvement district is organized for the purpose of providing waterworks, gas or electric lights, all of the electors of the city become at once interested in said improvement. Kirby's Dig., § 5675; 56 Ark. 205; Id. 365.

A reference of the ordinance to the voters would not violate the constitutional requisite of a consent of a majority in value, of those owning real property in the district, for that consent has already been obtained; but in addition to this consent the electors of the city are, by the act of 1913, given power to determine the expediency of the district, even though a majority of the owners of real property may have petitioned for it. And there is no merit in the contention that a reference of the ordinance might still leave the improvement district organized, and the city council with power to pass another ordinance levying the assessment. 139 Kan. 1191.

The specification in the act of certain matters which may not be referred, excludes the idea that any other matters may not be referred. The naming of certain exceptions excludes the idea that other exceptions exist which the Legislature did not mention in the act. 104 Ark. 510; 110 Ark. 528.

4. Amendment No. 10, to the Constitution, is worded quite differently from the language used in the municipal referendum measure of 1913. The former does not confer power, but reserves it. 104 Ark. 583, 595. The latter confers upon the voters of municipalities power which they did not have before.

If it should be held that a city council, by merely attaching an emergency clause declaring an ordinance pertaining to taxation to be an exercise of police power, it would be tantamount to conferring upon the city council the right to repeal any act of the Legislature.

5. The city council by stating in the ordinance that it was for immediate relief of "persons in distress," merely sought to evade the fourth subdivision or class of legislation which the statute withholds from reference. This fourth subdivision pertains to individuals, as such, in contra-distinction to the community in general.

R. M. Mann and Frank S. Quinn, for appellee.

1. Improvement district ordinances are not within the meaning and intention of the Referendum Act. Hunt on Special Assessments, 196; 109 Ark. 556; Id. 90; 55 Ark. 148; 42 Ark. 152.

2. The Referendum Act, if applied to improvement districts would be in conflict with section 27, article 19, of the Constitution. 84 Ark. 390.

3. Special assessments for loam improvements are levied under the police power. They are not taxes. 86 Ark. 109; 59 Ark. 513, 532; 3 McQuillin, Mun. Corp., 1882, 889; 96 U.S. 113-125; 2 Cooley, Taxation, (3 ed.), 1127, 1128 1130; 5 McQuillin, Mun. Corp., 4328, and authorities cited.

4. There is no great difference between the Referendum Act...