Jernigan v. Harris
| Decision Date | 03 July 1933 |
| Docket Number | 4-3179 |
| Citation | 62 S.W.2d 5,187 Ark. 705 |
| Parties | JERNIGAN v. HARRIS |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Chancery Court; A. L. Hutchins, Chancellor affirmed.
Decree affirmed.
C. W Norton and John Sherrill, for appellant.
Roy D Campbell, for appellee.
OPINION
This appeal questions the constitutionality of acts 131 and 132 passed at the 1933 session of the General Assembly.
Act 131 provides the means whereby the cities and towns of the State may purchase, construct, and improve waterworks systems, and operate them. The act provides that these municipalities may, by ordinance, provide for the issuance of revenue bonds, which ordinance shall set forth descriptions of the contemplated improvement, the estimate of costs, the rate of interest, and time and place of payment, and other details in connection with the issuance of the bonds, from the proceeds of the sale of which the waterworks are to be purchased, constructed or improved. The act declares a statutory mortgage lien upon all property to be acquired or constructed, and directs the city or town council to fix the minimum rate for water to be collected from the users of the water, and pledges the revenues derived from the waterworks system for the purpose of paying such bonds and the interest thereon, which pledge shall definitely fix and determine the amount of revenues which shall be necessary to be set apart and pledged to the payment of the principal; that the rates to be charged for the service of the waterworks shall be sufficient to provide for the payment of interest upon all bonds and to create a sinking fund to pay the principal thereof as and when they become due, and to provide for the operation and maintenance of the system, and also an adequate depreciation fund.
The act further provides that the bonds shall be payable solely from the revenues derived from the waterworks system, and shall not, in any event, constitute an indebtedness of the municipality within the meaning of any constitutional inhibition. The act provides that the statutory mortgage lien securing the payment of the bonds and the interest thereon may be, if necessary, foreclosed by a suit in equity.
Section 9 of the act reads as follows: "For the purpose of acquiring any waterworks system under the provisions of this act, or for the purpose of acquiring any property necessary therefor, the municipality shall have the right of eminent domain as is provided in § 4009 of Crawford & Moses' Digest of the Statutes of Arkansas ()."
By § 18 of the act it is provided that: "Said revenue bonds shall be exempt from all taxation, State, county and municipal; this exemption including income taxation, inheritance taxation as well as all forms of property taxation."
It was alleged that the provisions of the act referred to are violative of various sections of the Constitution of the State.
Act 132 contains many provisions similar to act 131, and the same constitutional objections are offered to it.
By the provisions of act 132 the cities and towns of the State are authorized to construct, own, equip, operate, maintain and improve sewage plants, and to authorize charges against the owners of real estate within such cities and towns for the use of same, and for the collection of such charges, and to authorize cities and towns to issue revenue bonds, payable solely from the revenues from such systems. Section 13 of act 132 directs the city and town councils to pass ordinances "to establish and maintain just and equitable rates or charges for the use of and the service rendered by such works, to be paid by each landowner whose premises are connected with, and use, such works by or through any part of the sewerage system of the city or town, or whose premises in any way use, or are served by, such works." The councils are charged with the duty of changing and adjusting such rates or charges from time to time to such extent as will not render insecure the rights of the holders of the revenue bonds, the proceeds of the sale of which are to be used in the construction, etc., of the sewage system.
This § 13 of the act provides that: "It is the intention of this act that a landowner shall be liable for such service charge, even though the use of the sewer system is by his tenant or lessee; but vacant, unoccupied property not actually using such works shall not be subject to a service charge." It is provided that these rates or charges shall be sufficient for the payment of operation, repairs and maintenance, and "for the payment of the sums herein required to be paid into the sinking fund."
It is further provided that all rates or charges, if not paid when due, shall constitute a lien upon the premises served by such works, "said charges to constitute a lien upon the fee title to the land and permanent improvements, even though the occupant receiving the benefit of the service for which the rate or charge is due has merely a leasehold interest (or other lesser estate) in the premises," and that the service charge or rate may be recovered by the sewer committee of the council by a suit in the chancery court, where a lien shall be declared and foreclosed to enforce the payment.
Act 132 contains provisions similar to those of act 131 exempting the bonds from taxation and authorizing condemnation proceedings in accordance with § 4009, Crawford & Moses' Digest, and acts amendatory thereof.
The appellant filed a complaint in the Woodruff Chancery Court, in which he alleged that he was the owner of a lot in the town of McCrory, which he was occupying as a homestead, and that the council of the town of McCrory had passed ordinances pursuant to both acts, under which a waterworks system and a sewage system would be installed unless that action were restrained, and he prays that relief as against both systems. The causes were consolidated and heard on a demurrer thereto, which the court sustained. The plaintiff declined to plead further, and both complaints were dismissed, and from that decree is this appeal.
We proceed to consider the objections made to the constitutionality of the legislation.
It may be first said that the power of cities and towns to install sewage systems and waterworks is universally recognized. The health, as well as the comfort and convenience of persons living together in close relation and in large numbers require the existence of such powers, and a sewage system would be valueless unless the power inhered to require all property owners to make physical connections with the sewers.
The existence of this power was clearly recognized in the case of Dinning v. Moore, 90 Ark. 5, 117 S.W. 777. That was a suit under § 5525, Kirby's Digest (now appearing as § 7593, Crawford & Moses' Digest) which provides that the board of health of any city may direct property owners to make connections with adjacent sewers, with a provision that, upon their failure to make such connection, it shall be the duty of the board of health to have it made and to charge the property therewith, and to enforce payment of the cost thereof against the property by a suit in the chancery court. The power of the city to pass such an ordinance and to enforce its provisions was not questioned, but the relief there prayed was denied solely upon the ground that the board of health had not properly entered the necessary orders of record to bind the owner whose property was sought to be charged.
It is insisted that the attempt to make the provisions of § 4009, Crawford & Moses' Digest, and acts amendatory thereof, available to the district are violative of § 23, of article 5, of the Constitution, and are not sufficient to incorporate that legislation into acts 131 and 132, and that there is therefore a lack of power to exercise the right of eminent domain which will probably be required to make either or both systems effective.
We quoted § 9 of act 131 above, and the same provisions appears in act 132, the effect thereof being that the municipalities "shall have the right of eminent domain as is provided in § 4009, Crawford & Moses' Digest, of the Statutes of Arkansas, and any act amendatory or supplemental thereto."
Such legislation, known as a reference statute, is quite common and is uniformly upheld. It refers to another statute to regulate the procedure to make its provisions effective, and legislation would be very cumbersome and difficult if such acts were not held valid. For instance, it was contended in the case of Wilson v. Magnolia Petroleum Co., 181 Ark. 391, 26 S.W.2d 92, that § 5745, Crawford & Moses' Digest, providing that chancery courts shall have concurrent jurisdiction with the circuit courts to remove the disability of minority in the same way and manner as is provided for the removal thereof by circuit courts in § 5744, Crawford & Moses' Digest, was unconstitutional because it violated article 5, § 23, of the Constitution, which provides, in effect, that no act may be amended by reference to its title, but that so much thereof as is revived, amended, extended, or conferred, shall be reenacted and published at length. In overruling this contention we there said: ...
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