Mullins v. City of Little Rock

• Decision Date: 29 October 1917
• Docket Number: 193,220
• Parties: MULLINS v. CITY OF LITTLE ROCK
• Court: Arkansas Supreme Court

198 S.W. 262

131 Ark. 59

MULLINS v. CITY OF LITTLE ROCK

No. 193,220

Supreme Court of Arkansas

October 29, 1917

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

R. E Wiley and Marvin Harris, for appellant.

1. The act violates Art. 19, § 27, Constitution of Arkansas. The Legislature can not authorize the organization of a district in a city to make an improvement outside of the city. 50 Ark. 116, 125; Kirby's Digest, § 5674; 103 Ark. 269; 67 Ark. 30, 37, 39; 246 Ill. 43, etc.

2. The bridge is not a local improvement, therefore special assessments can not be levied because contrary to § 5 art. 16, Constitution. 9 Heisk. 349; 24 Am. Rep. 308, 34 L R. A. 725; 149 Ill. 310, 24 L. R. A. 412; 92 N.E. 586; 102 Ill.App. 18; 22 Minn. 444; 84 Ark. 257; 104 Id. 425; 70 Id. 451; 181 U.S. 324; 67 Ark. 30, 39, 40.

3. Special assessments can not be imposed to pay for the general improvement of the city. 50 Ark. 116, 57 Id. 554. If this bridge is not primarily for a county purpose, the county court has no right to expend the county's money on it, and if primarily for a county purpose then it is a general improvement for the benefit of the entire county, and its cost can not be specially assessed against a part only of the county's territory. 65 Penn. St. 146; 3 Am. St. Rep. 615; 69 Penn. St. 352; 8 Am. St. Rep. 255; 49 L. R. A. 757; 11 La.Ann. 338; Farnum on Waters, 746; 170 Ill. 436; 48 N.E. 922; 11 S.W. 84, 467.

4. The assessments will be unequal and not uniform because no part of Argenta is included. 48 Ark. 370; 57 Ark. L. Rep. 70.

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

1. Act 330, Acts 1915, supplies all necessary statutory authority lacking and all objections and defects pointed out in 113 Ark. 590 and 114 Id. 324 were removed. The proceedings under the Act are not opposed to the provision of the Constitution authorizing districts in cities and towns to be formed only on the consent of a majority of the property owners. It is not violative of Art. 19, § 27. 103 Ark. 269; 87 Id. 346; 118 Id. 127.

2. It is a local improvement conferring special benefits. 96 Ark. 410; 106 Id. 115; 113 Id. 193; 170 U.S. 304; 56 N.W. 41; 23 Id. 222; 39 Barb. 266; 38 Ore. 432. The cases cited by appellant arose under the peculiar statutes of those States. The decisions of this State sustaining special assessments on an ad valorem basis to improve roads and build bridges are sustained by the great weight of authority in other States. 76 N.E. 620; 34 La.Ann. 342; 181 Mass. 463; 68 N.J. 118; 158 N.Y. 438; 22 Wash. 106; 40 Wis. 315 and others. See also, 170 U.S. 304; 56 N.W. 41; 63 P. 2; 39 Barb. 266, as to bridges on streets of cities.

3. The assessment of benefits is not necessarily unequal and uniform, as the property in Argenta would necessarily be specially benefited and is not assessed. The district does not pay the entire cost of the bridge, but is to aid the county to defray the cost. In nearly all districts there is a zone of property beyond the limits of the district that is benefited. 188 S.W. 822; 48 Ark. 370; 57 A. L. R. 70.

Moore, Smith, Moore & Trieber, Amici Curiae.

1. The bridge is a local improvement. 67 Ark. 30; 113 Id. 193; 96 Id. 410; 89 Id. 513. The Act is valid. 104 Ark. 425.

McCULLOCH C. J. HART, J., dissenting.

OPINION

McCULLOCH, C. J.

The city council of Little Rock, by an ordinance duly enacted upon the petition of property owners as prescribed by statute, has created a local improvement district "for the purpose of aiding the County of Pulaski in building a bridge across the Arkansas River, said bridge to land on Broadway street in the city of Little Rock, Arkansas." A majority of the owners of real property in the district petitioned for the improvement and the commissioners have been appointed by the city council and are about to proceed with the assessment of benefits and the levying of assessments to pay for the improvement. Appellant is the owner of real property in the district and instituted this action in the chancery court to restrain further proceedings in the assessment of benefits, levying of assessments, issuing bonds and the construction of the improvement through the agency of this improvement district, on the ground that there is no lawful authority for the organization of a local improvement district for the purpose named. The chancery court denied relief and an appeal has been prosecuted to this court from the decree.

Another district was once formed for the same purpose mentioned in the organization of this district, but this court held that under the law, as it then stood, there was no authority for the formation of a local improvement district to aid in the construction of a bridge connecting two cities. Mullins v. Little Rock, 113 Ark. 590, 168 S.W. 1074. The property owners made another attempt to further the improvement by organizing a district to construct one-half of the bridge across the Arkansas River between the cities of Little Rock and Argenta, and this court held that the effort was futile, and that the formation of the district for that purpose was void. Mullins v. Bridge Improvement District, 114 Ark. 324, 170 S.W. 65. In each of those cases the decision was based upon the lack of legislative authority to form an improvement district for the purposes named. In the first case it was held that the Legislature, in the enactment of the general statute authorizing the organization of improvement districts in cities and towns, had not conferred authority to form a district for the purpose of aiding another agency, such as the county, in constructing an improvement; and in the last case it was held that there was no legislative authority to form a district to build one-half of a bridge, or any part less than the whole. Since those cases were decided the General Assembly enacted a special statute applicable only to Pulaski County authorizing the organization of improvement districts in this county for the purpose of raising money to aid the county to "build, repair, reconstruct, strengthen, alter or widen, bridges across the Arkansas River between the cities of Little Rock and Argenta." Acts of 1915, p. 1346.

The first section of the act reads as follows:

"Districts may be organized in Pulaski County in the manner set forth in sections 5664 to 5742, of Kirby's Digest, and the amendments thereto, for the purpose of raising money to aid the county of Pulaski to build, repair, reconstruct, strengthen, alter or widen, bridges across the Arkansas River between the cities of Little Rock and Argenta, which the county has heretofore built or may hereafter undertake to build, to the extent petitioned for and under such restrictions as may be prescribed, in the petition of the majority in value of the property owners and in such event, it shall be the duty of the commissioners, if they can make satisfactory arrangements with the county court of Pulaski County within the limits of the authority conferred by such petition, to issue the negotiable interest-bearing bonds of the district to the amount prescribed in the petition, and to sell said bonds and turn the proceeds thereof over to said county court, to be used in the construction, reconstruction repairing, strengthening, altering or widening of such bridge or bridges."

Section 2 of the act provides that when such bridge or bridges are proposed to be built, repaired, reconstructed, etc., the county court of said county shall appoint a commission composed of three persons whose duty shall be to locate and superintend the erection, reconstruction or repair of the proposed bridge. It is thus seen that legislative authority is conferred, as far as is possessed by the law-makers, to form an improvement district for the purpose mentioned in the organization of the present district.

The statute in question is not open to the objection that it attempts to amend or extend a statute by reference only to the title. Common School District No. 13 v. Oak Grove Special School District, 102 Ark. 411, 144 S.W. 224. Nor is the statute objectionable on the ground that it authorizes the appointment of two sets of commissioners, one by the county and the other by the city council. The question of extent of the authority of the respective sets of commissioners is not before us for determination and need not be decided until it properly arises. There may not arise any conflict in the authority attempted to be exercised by the respective boards in this instance.

The only question presented, therefore, for our determination is whether or not the statute authorizing the formation of the district for the purpose named is valid, and the validity of the statute is challenged by appellant on several grounds. The Constitution of the State contains but one limitation upon legislative power with respect to the creation of local improvement districts, and that limitation is that the taxation of property in districts situated wholly within cities and towns must rest on the consent, actually ascertained, of a majority in value of the owners of real property. Butler v. Fourche Drainage District, 99 Ark. 100. In other respects the legislative will is supreme, at least as far as any express constitutional limitation is concerned. Of course, there is the further limitation that since the only justification for the imposition of local assessments rests upon the enjoyment of special benefits to the property thus taxed, the amount of the tax must not exceed the special benefit derived; and also that the imposition of the tax must be uniform and free from unjust discrimination.

It is insisted, in the first place, that it is beyond the power of the Legislature to authorize the organization of an...