Matthews v. Kimball

• Decision Date: 01 February 1902
• Citation: 66 S.W. 651,70 Ark. 451
• Parties: MATTHEWS v. KIMBALL
• Court: Arkansas Supreme Court

66 S.W. 651

70 Ark. 451

MATTHEWS v. KIMBALL

Supreme Court of Arkansas

February 1, 1902

[Copyrighted Material Omitted][Copyrighted Material Omitted]

Appeal from Pulaski Chancery Court, EDWARD B. PEIRCE, Special Chancellor.

Affirmed.

OPINION OF SPECIAL CHANCELLOR.

These cases were consolidated, and have been submitted together.It is agreed that the issues in each case shall be identical and that any amendment to the pleadings necessary to effectuate this agreement shall be treated and considered as made.The cases were submitted upon the pleadings and an agreed statement of facts.

It appears that on the 24th day of May, 1892, ten resident owners of real property in the city of Little Rock, and within the district to be affected, petitioned the city council to take the necessary steps toward the making of local improvements therein in the way of acquiring, improving and maintaining a city park, to be located in the said city and commonly known as 'Arsenal Grounds,' and bounded etc., and within the limits of the proposed district.On the same day, and in accordance with said petition, the city council passed an ordinance laying off the "whole of the territory comprised in the city of Little Rock" into an improvement district, and designated the same as the "City Park District."That within five days after the passage of the ordinance it was published as required by law.That, within three months after the publication of said ordinance, a majority in value of the owners of real property within the district presented a petition praying that such improvements be made, designating the improvements, and that the costs thereof be assessed and charged upon the real property situated therein.That commissioners were duly appointed and qualified, and immediately formed plans for the improvements within the designated district, and reported their plans to the council.Upon the receipt of said report, the council passed an ordinance assessing the cost of acquiring, purchasing and improving the grounds mentioned in said report as a public park upon the real property in said district.That said ordinance was duly and within proper time published after its passage.That there has been realized from said assessment about the sum of $ 75,000, of which sum $ 35,000 was used in purchasing 1,150 acres of ground in Pulaski county, situated on what is known as Big Rock, and adjacent to said city, which lands were given in exchange to the United States government for the park grounds, and that this method of acquiring the title to said park was contemplated and so understood at the time the petition for the assessment was made, and $ 40,000 has been expended in improving and maintaining said park, removing useless structures, grading, laying out drives and walks, planting trees and shrubs, ornamental trees and flowers, making an artificial lake, constructing a stable and band stand, and otherwise improving, beautifying and benefiting the park.There was also introduced in evidence a statement showing the exact distance of each piece of property involved in this suit from the park, and showing, also, the assessed valuation of the same for the years 1891, 1893 and 1895.This statement was objected to as incompetent.

On the 5th day of May, 1900, E. D. Matthews, on behalf of himself and such others as might see fit to join him, filed in this court his bill of equity, seeking to enjoin the commissioners from collecting any further assessments under the ordinance.On the 4th day of December, 1900, the board of commissioners filed separate suits against J. E. England, Edward Fitzgerald and F. M. Fulk, et al., for the purpose of enforcing the collection of the assessments then in arrears on the property owned by them.These defendants filed their answers, denying the right to collect the assessment mentioned in the complaint, and in these answers and in the bill of equity to enjoin the commissioners the following reasons were urged against the validity of the assessments: First, that the ordinance was not published within five days of its passage, as required by law; second, said improvements were not beneficial to the property, nor contiguous or adjoining thereto; third, the object of said ordinance was to raise money to purchase a tract of land far beyond the limits of the district, and in a manner not provided by law; fourth, because said park has been fully paid for, and there is no authority in the law to collect a further tax: fifth, because the district was not duly created and organized under the laws of Arkansas and the ordinances of the city of Little Rock, and for further reason that there was no legal ordinance making the assessment; sixth, because the city of Little Rock had no power or authority, under the constitution and laws of Arkansas, to pass any such ordinance; seventh, it was also urged and argued, though not specifically set up anywhere, that the assessment was in violation of the fifth and fourteenth amendments to the federal constitution.

The first and third objections to the validity of the ordinance were abandoned, and I am therefore relieved of the necessity of adverting to them.All the other questions, however, were presented with great force, and are earnestly insisted upon as being valid objections to the validity of the assessments in question.

The case of Norwood v. Baker,172 U.S. 269, seems to have invited a wholesale and vigorous attack upon the validity of assessments of the character now under consideration.Several of these cases from various sections of the country found their way almost simultaneously into the supreme court of the United States, and on the 29th day of April of this year that tribunal made its deliverance in all of these cases, and in each one the validity of the assessments, in so far as it was contended that they were in violation of the federal constitution, was upheld, and the assessments were enforced.Under the authority of these cases, it is unnecessary for me to advert to the constitutional objections which have been urged to the assessments in question, for these decisions, to my mind, conclude the whole question.French v. Barber Asphalt Paving Company,181 U.S. 324, and other cases decided at the same time, reported in 181 U.S. 371, 389, 394, 396, 399, 402, 404.

It has been decided that the act of 1881 authorizing these improvement districts is valid, so far as our state constitution is concerned.Little Rock v. Board of Improvement,42 Ark. 161;Ahern v. Board of Improvement District No. 3, of Texarkana,69 Ark. 68, 61 S.W. 577.

Likewise, I am of the opinion that the position that the said improvements were not beneficial to the property, nor contiguous or adjoining thereto, is not established.In the case of Little Rock v. Katzenstein,52 Ark. 107, the court said: "Two questions are presented for determination: First, what is property adjoining the locality to be affected?Second, to what extent is the action of the city council in placing lands in an improvement district conclusive of the fact that it is 'property adjoining the locality to be affected?'"After discussing these two propositionsthe court answered them as follows: "We conclude, therefore, in answer to the two queries originally propounded: First, that property adjoining the locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, directly by the improvement, to a degree in excess of the effect upon the property in the city generally.Second, that the action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake."

It is claimed that the statement introduced showing the exact distance of each piece of property involved in this suit from the park, and also showing the assessed value of the same for the years 1891, 1893 and 1895, is sufficient evidence of the fact that the property was not benefited by the improvement nor adjoining the locality to be affected.I am unable to agree with this position.There is no charge of fraud, and, from the very nature of the benefits to be derived from a public park, it certainly does not show that there was a demonstrable mistake in including the property in the district.It proves nothing as to benefits, because the beneficial effects from the establishment of the park may have offset other depressing defects existing during the same period, and it does not even tend to show that no benefits will accrue.I do not think the statement is competent, but, admitting it for what it is worth, it does not establish either fact which was intended to be shown by it.I think it would require strong evidence to show that a park like this one was not beneficial to the whole property in the city, and surely no court can say, as a matter of law, that the public park is not or will not be beneficial to the city.In the case of Wilson v. Lambert,166 U.S. 611, Justice Shiras, in speaking of the value of a park to Washington City, says: "Whatever tends to increase the attractiveness of the city of Washington as a place of permanent or temporary residence will operate to enhance the value of the private property situated therein and adjacent thereto."Without enumerating any of the many beneficial effects of a park to a city, it suffices to say, in a general way, that there is no character of public improvement the benefits of which are so widely and generally diffused throughout the whole city as a public park; and, as the burden of proof rests upon those attacking the assessments, I am clear that this statement is not sufficient to overcome it. ...