Paving Dist. No. 36 v. Little

• Court: Arkansas Supreme Court
• Writing for the Court: Smith
• Citation: Paving Dist. No. 36 v. Little, 282 S.W. 971 (Ark. 1926)
• Decision Date: 03 May 1926
• Docket Number: (No. 343.)
• Parties: PAVING DIST. NO. 36 et al. v. LITTLE et al.

282 S.W. 971

PAVING DIST. NO. 36 et al. v. LITTLE et al.

(No. 343.)

Supreme Court of Arkansas.

May 3, 1926.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Suit by R. T. Little and others against Paving District No. 36 in the City of Ft. Smith and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Pryor, Miles & Pryor and Geo. W. Dodd, all of Ft. Smith, for appellants.

Daily & Woods, of Ft. Smith, for appellees.

SMITH, J.

Appellees — who were the plaintiffs below — owned real property within the limits of paving district No. 36 in the city of Ft. Smith, and they brought this suit to cancel the ordinance of that city whereby the district was created.

Two questions are presented by this appeal. The first is whether the amendment voted on at the election in 1920 as Amendment No. 13 (see Laws 1919, p. 481) applies to municipal ordinances creating improvement districts in cities and towns; and the second whether the improvement district here in question was void because the cost of the proposed improvement exceeded the betterments assessed therein.

Under the decision of this court in the case of Brickhouse v. Hill, 268 S. W. 865, 167 Ark. 513, this amendment was declared adopted, and it is conceded that, if this amendment applies to municipal ordinances creating improvement districts, Ordinance No. 1397, which created paving district No. 36, was prematurely passed.

Relevant portions of the constitutional amendment read as follows:

"Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent. of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measure. In municipalities the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties upon the office of circuit clerk. In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; nor less than ninety days when filed against a local or special measure passed by the General Assembly.

"Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation."

The amendment contained a section reading as follows:

"Definition. The word `measure' as used herein includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character."

In our opinion the amendment does not apply to the ordinance in question.

In the case of Fitzgerald v. Walker, 17 S. W. 702, 55 Ark. 148, the court, in considering the nature of the improvement districts which section 27 of article 19 of the Constitution authorizes the property owners in the cities and towns of the state to organize, said:

"The fact that an improvement district is organized to accomplish a purpose which in a limited sense may be said to be `municipal' does not make it a `municipal corporation.'

"It exercises no legislative powers, and lacks many other essential characteristics of a corporation created for the government of a city or town. * * * It is said, however, that an improvement district is the agent of the city, and as such can have no greater power than its principal. But such district is not in any sense the agent of the city or town within which it is organized. Its powers are derived directly from the Legislature, and in exercising them the board acts as the agent of the property owners whose interests are affected by the duties it performs (citing cases)."

In the case of Morrilton Waterworks Imp. Dist. v. Earl, 71 S. W. 666, 71 Ark. 4, the court discussed the authority of the council of cities and towns over improvement districts organized under statutes enacted pursuant to section 27 of article 19 of the Constitution. The question there involved was the right of the council to abolish an improvement district. After setting out the sections of the statute under which the owners of property may proceed in organizing an improvement district, the court said:

"If it [the town or city council] refuses to make the assessment [after the statute has been complied with by the property owners], it can be compelled to do so by mandamus, at the instance of the board. It cannot lawfully withhold from the board the means for completing the improvement when the cost does not exceed twenty per centum of the assessed value of the real property in the district. * * * It may refuse to make an assessment when the cost of the improvement exceeds twenty per centum of the assessed value of the real property. In this way, and in no other, is it authorized by the statute to defeat the improvement."

It was there further said:

"The statutes do not place the board of improvement under the supervision and control of the city council, to be used as an agent to carry into effect its wishes or commands. Fitzgerald v. Walker 55 Ark. 157. But they give the board complete control over the construction of the improvement, and invest it with the power to make all contracts necessary to be made in respect thereto, with the power to borrow money, to institute suits in its name to enforce the payment of the assessments upon the real property in its district, to disburse the money collected to pay the cost of the improvement, and with the power, except as aforesaid, to compel the city council by mandamus to make further assessments upon real property to complete the improvement."

In the case of Tomlinson Brothers v. Hodges, 162 S. W. 64, 110 Ark. 528, the construction of an act passed at the special session of the 1911 General Assembly to carry into effect the provisions of the amendment voted on as amendment No. 10 was involved. Act No. 2, Acts 1911, p. 582. The amendment voted on as No. 10 was the original I. and R. Amendment. This court held in the case cited that this act of 1911, passed for the purpose of carrying into effect the I. and R. Amendment, was intended only to carry out and put into effect the constitutional amendment, and did not confer on the people of a municipal corporation referendum power over an ordinance passed by a city council which granted a franchise to furnish lights to the city. The General Assembly, at its 1913 session, passed another act granting to the people of municipal corporations the right to refer ordinances passed by the council of such municipal corporations, and to prescribe the method of referring the same. Acts 1913, p. 563. This act is found as sections 7503 et seq., C. & M. Digest.

The case of Hodges v. Board of Improvement, 174 S. W. 542, 117 Ark. 266, involved the construction of the act of 1913, in which case it was attempted to refer to the people an ordinance of the city of Texarkana creating a waterworks improvement district. The court there said:

"We are of the opinion that Act No. 135 of the Acts of 1913, above referred to, was intended to apply only to matters of general legislation by the city council in which all electors without distinction may take part."

This opinion was delivered March 1, 1915.

It is significant that Amendment No. 13, the submission of which was authorized at the 1919 session of the General Assembly, made no reference to the act of 1913, but expressly repealed the act of 1911 hereinbefore referred to. The new amendment made the granting of franchises subject to the referendum, as this...