Matthews v. Kimball

• Decision Date: 01 February 1902
• Parties: MATTHEWS et al. v. KIMBALL et al., Com'rs.
• Court: Arkansas Supreme Court

66 S.W. 651

MATTHEWS et al. v. KIMBALL et al., Com'rs.

Supreme Court of Arkansas.

February 1, 1902.

Appeal from Pulaski chancery court; E. B. Pierce, Special Chancellor.

Injunction by E. D. Matthews and others against E. W. Kimball and others, as commissioners of the city park improvement district of Little Rock, to restrain the collection of certain special assessments. From a decree in favor of the defendants, the plaintiffs appeal. Affirmed.

Rose & Coleman and Ratcliffe & Fletcher, for appellants. Whipple & Whipple and E. W. Kimball, for appellees.

BUNN, C. J.

The appellants by this proceeding seek to enjoin the defendants, as commissioners of the city park improvement district of Little Rock, from proceeding further to collect certain assessments levied upon their real property in said district,— among them, the last assessment made under the ordinance of the city council. It appears to be admitted in the agreed statement of facts that the district was properly organized on the petition of 10 resident landowners, and that, within proper time after due notice given, the district was formed and commissioners were appointed, and that they in due time qualified and made the necessary plans and specifications and estimates of the costs of the improvement, and that the city council, upon the petition of a majority in value of the owners of property in the district, passed the necessary ordinance assessing the real property as required by law, and that in fact the district was properly organized and the assessments made. The Honorable E. B. Pierce, sitting as special chancellor, heard the cause, and decreed against the appellants on all the controverted points, and they appealed to this court.

One of the more serious questions raised by the proceedings in the case is whether or not the statute includes public parks, and such like, as improvements for which assessments upon the real estate of a district may be made by the city council in the manner provided for local improvements. The appellants contend that under the familiar rule of construction, which confines the meaning of additional descriptive expressions to the class to which preceding specific terms and names belong, the improvements contemplated by the act are only streets, alleys, sewers, and such like, or similar improvements. This is the doctrine of ejusdem generis. It would be difficult to say what other like improvements there are or can be in a town, than streets, alleys, and sewers; and the contention of appellees that these descriptive names exhaust the particular class we think is well founded, and that public parks are not of that class. While it is true parks contain streets and drives, yet these are not to be used for all purposes for which ordinary streets are intended and may be used; and still more might be said to distinguish parks from sewers, and take them out of the class to which the latter belong. The statute on the subject, digested as section 5321, Sand. & H. Dig., is as follows, to wit: "The council of any city of the first or second class, or any incorporated town, may assess all real property within such city or within any district thereof for the grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature, in the manner hereinafter set forth." This language is certainly broad enough to include any kind and class of improvements which will enhance the value of the real estate of the particular district; that is, benefit it. In construing this statute, this court said in Crane v. City of Siloam Springs, 67 Ark. 36, 55 S. W. 956: "Provisions for local convenience, like water, light, public parks for recreation, and other public accommodations of the same kind, are some of the matters which are furnished or provided for by municipal corporations in their quasi private capacity, in which they act not as agencies of the state, but exclusively for the benefit of their own inhabitants. It is in respect to such matters of local concern that the largest freedom of action has been allowed municipal corporations. The case, says Judge Cooley, must be extraordinary and clearly exceptive to warrant any court in declaring that the discretion has been abused and the legislative authority exceeded," — citing Cooley, Tax'n (2d Ed.) §§ 145, 688, 689; State v. Williams, 68 Conn. 131. 35 Atl. 24, 421, 48 L. R. A. 465; Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. Ed. 1047. The only limitation as to the character of the improvement is that it must be a local improvement and of a public nature; that is, local to the city and the inhabitants thereof, and public to the extent that it shall be free to the public under such proper regulations as may be adopted for its control, management, and preservation by the city council. The text-books and their citations sustain the doctrine that public parks are proper subjects of city taxation; and it is even held that it is proper to call into exercise the right of eminent domain, in order to acquire the necessary ground for the same. 2 Dill. Mun. Corp. (2d Ed.) § 598. The proper exercise of discretion by the council is conclusive upon the courts to that extent. 2 Dill. Mun. Corp. (2d Ed.) § 600.

The next very important question arising from the pleadings is whether or not the property of complainants, which does not actually adjoin the grounds included in the park, is assessable under the provisions of section 27, art. 19, of the constitution of the state, which reads as follows, to wit: "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." It is evident that this section confers no new powers upon the legislature, but the first clause of it is simply a recognition of power already existing; that is, inherent under the grant of general municipal powers. Section 255, Tied. Mun. Corp. The second and last clause contains restrictions which, of course, must be observed, notwithstanding the inherent powers under the general grant of municipal power. In the discussion of this provision of the constitution, the word "adjoining" is made the controlling word, in the endeavor to determine whether or not any real property in the district is assessable, except that which absolutely touches the park grounds. Such is the contention of the appellants. On the contrary, the appellees contend that all the property in the district is adjoining, in one sense, the locality to be affected, and is therefore assessable. The etymological meaning of "adjoining" is "touching or contiguous to"; and there does not seem to be any other meaning to the word, when used in this sense. But what effect, in the practical affairs of life, the close relationship or connection of associate words or attendant circumstances may have upon its meaning, to give it a different shade of meaning, we cannot say. It is sufficient for us to say, however, that the lexicographical meaning of the word "adjoining" is "close to," "near to," "contiguous." See Worcester's Dictionary. It is thus given the same meaning as "adjacent," which is more elastic than "adjoining," where used in its etymological sense. In the case of Vestal v. City of Little Rock, 54 Ark. 325, 15 S. W. 892, 11 L. R. A. 778, in construing the word "contiguous" (which, all must agree, is, as nearly as may be, synonymous with "adjoining") in its employment to define what land may or may not be annexed to a city or town, the court said: "To sustain their first ground for reversal, appellants rely on the fact that the city is on one side, and a part of the lands included in the order is on the other side, of the Arkansas river. But we do not think this fact conclusive that the lands are not contiguous, within the meaning of the act. The river is included in the land annexed, and is therefore not a break in the contiguity, nor an insuperable barrier to a complete amalgamation of the communities upon its opposite banks," — citing authorities. Again, in the case of City of Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198, where a lot did not at all touch the locality of the improvement itself, but separated from it by another assessable lot, this court said: "The action of the city council in including property in an improvement district is, except when attacked for fraud or demonstrable mistake, conclusive of the fact that such property is `adjoining' the locality to be affected by the improvement, within the meaning of the constitution," — citing the section now under consideration. In the case at bar there is no break in the continuity of the assessable lots or parcels of ground from the park grounds to the outermost boundaries of the district, which is the city. Therefore, according to City of Little Rock v. Katzenstein, supra, all is adjoining the locality to be affected. Again, it is undoubtedly true that, by the erection of buildings, the planting and training of trees, the sowing and setting of grasses and flowers, and the like, upon the park grounds, the park itself is affected in a merely physical way, and in that sense the park may be the "locality to be affected." But that is not, perhaps, the effect spoken of in the law on the subject, in connection with the levying of assessments for local improvements on the property outside the park, belonging to private individuals or corporations liable to such assessments under the law. It is the locality formed by the assessable property, in all probability, which is to be enhanced in value by the making of the improvement, that constitutes the locality to be affected; and this, of course, is all...