Roscoe v. Water and Sewer Improvement District No. 1

• Decision Date: 21 November 1949
• Docket Number: 4-9100
• Citation: 224 S.W.2d 356,216 Ark. 109
• Parties: Roscoe v. Water and Sewer Improvement District No. 1
• Court: Arkansas Supreme Court

224 S.W.2d 356

216 Ark. 109

Roscoe v. Water and Sewer Improvement District No. 1

No. 4-9100

Supreme Court of Arkansas

November 21, 1949

Appeal from Garland Chancery Court; Sam W. Garratt, Chancellor.

Affirmed.

McMath Whittington, Leatherman and Schoenfeld, for appellant.

Wood & Chesnutt, for appellee.

OPINION

Griffin Smith, Chief Justice.

Appellant is a property-owning taxpayer residing within Water and Sewer Improvement District No. 3 of Garland County. He sought in a class suit against the District's Commissioners and others to prevent a sale of bonds, alleging (a) that Act 41 of 1941 restricts the issuance of notes or bonds to costs arising from preliminary work, as distinguished from substantive construction, and (b) that the pledge executed by the District attempts to delegate powers that can be legally performed by the Commissioners only. The Chancellor dismissed the complaint for want of equity.

The proposed improvements, lying partly within and partly beyond the Hot Springs city limits, would be made at a cost of $ 105,000 with money supplied by Reconstruction Finance Corporation. The 4% bonds would be secured by pledge of betterments aggregating $ 215,630, such betterments to draw 6% interest. Serial bonds over a period of twenty years are authorized if the proceedings are valid.

First -- Scope of Act 41. -- Ends sought to be achieved by the enactment of 1941 are discussed in Murphy v Cook, 202 Ark. 1069, 155 S.W.2d 330. The Act appears as Ch. 7. "Suburban Improvement Districts", in Ark Stats., §§ 20-701 to 729, inclusive. Section 16 of the Act reads:

"In order to meet preliminary expenses to do the work the board may issue the negotiable notes or bonds of the district". Appellees insist, and the trial Court found, that the legislative intent was to provide means "to meet preliminary expenses and to do the work". We agree that the omission of "and" was a clerical misprision. The Act contains 28 sections, not counting the emergency clause, and when considered in the light of purposes expressed in the related parts, the conclusion is inescapable that the lawmakers were dealing with a general or "over-all" plan respecting the subject-matter, and there was no thought of implementing preliminary work by exclusive treatment, thereby requiring separate proceedings to be independently pursued before the primary objective could be attained.

The title of an Act is in no sense controlling, and, like a preamble, or emergency clause, it may be looked to for the purpose of ascertaining a meaning not fully expressed in the Act proper, yet -- as we have so often said ^[1] -- where there is doubt as to the legislative intent, due either to ambiguous phrases or a suggested word omission, and where the missing word can be appropriately supplied by determining from the title, preamble, or other collateral phrases just what the lawmakers intended to accomplish, it is then proper to consider any or all of these collateral aids.

Tested by this rule, we find that Act 41 was designed to provide "for the formation of suburban improvement districts, for . . . the building and extending water systems, [and] building and extending gas pipe lines"; [and -- by the preamble] "Whereas, . . . persons residing outside cities and towns are not permitted [under existing statutes] to form [suburban improvement districts of the kind here at issue] and are thus prohibited from [receiving] benefits of funds from the Government of the United States, [therefore] it is declared to be the purpose of this Act to make provision for formation of improvement districts on the outside of and adjacent to cities having a population of 5,000 or more".

As an indication of the legislative concept that actual improvements should be made under authority of Act 41, the right is given by § 4 "to sell or lease the improvement" made by the Commissioners, etc. Section 5 mentions "assessed value of lands after the improvement is made"; section 11 authorizes further levies of benefits "if the tax first levied shall prove insufficient to pay the bonds, both principal and interest issued by the board of commissioners on account of such improvement, as hereinafter provided"; § 14 requires all contractors "to give bond for the faithful performance of such contracts as may be awarded them", and permits the commissioners to sell "all unnecessary material and implements that may be on hand and which may not be necessary for the completion of the improvement under way, or which may have been completed". Section 15 imposes a duty on the board to have the amount of work done by any contractor estimated from time to time . . . by its engineer, "and the board shall draw its warrants in favor of the contractor for not more than 90% of the amount of work so reported, reserving the...