Skipper v. Street Improvement District No. 1

• Decision Date: 10 May 1920
• Docket Number: 393
• Parties: SKIPPER v. STREET IMPROVEMENT DISTRICT NO. 1
• Court: Arkansas Supreme Court

221 S.W. 866

144 Ark. 38

SKIPPER v. STREET IMPROVEMENT DISTRICT NO. 1

No. 393

Supreme Court of Arkansas

May 10, 1920

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor reversed.

STATEMENT OF FACTS.

During the year 1918, two separate petitions were circulated in the city of Morrilton for the establishment of two improvement districts designated respectively as Street Improvement District No. 1 and Street Improvement District No. 2. District No. 1 was organized for the purpose of paving certain streets within the city of Morrilton, and District No. 2 for the purpose of constructing gutters and curbs upon the streets that were to be paved in District No. 1. The statute in regard to the organization of local improvements in cities and towns was followed, and in each case a majority in value of the owners of real property within the proposed district signed the petition praying for the improvement. An ordinance was duly passed in each case creating the district. It was ascertained that neither improvement could be constructed within the statutory limitation of twenty per cent. of the assessed valuation of the property within the proposed district. At the special session of the Legislature which convened in January, 1920, a bill was introduced which removed the twenty per cent. limitation provided by the statute and authorized the expenditure of a greater per cent than twenty per cent. of the value of the real property of the district as shown by the last county assessment. The constitutionality of the statute is attacked on this ground. Under the allegations of the complaint the cost of the improvement in each district will exceed twenty per cent. of the value of the real property in such district as shown by the last county assessment.

The prayer of the complaint is that the chancery court enjoin the commissioners from proceeding further in the construction of the improvement.

A demurrer was interposed to the complaint which was sustained by the court. The plaintiff elected to stand upon his complaint and the complaint in each case was dismissed for want of equity.

The cases were consolidated and tried together in the court below and are here on appeal.

Decree reversed and cause remanded.

J. A Eades, for appellant.

The court erred in sustaining the demurrer to the complaint. Act 39, Acts 1920, was not constitutionally passed and it was void. Booe v. Imp. Dist. 4, 141 Ark. 140, settles the question. 112 Ark. 254-9.

Sellers Gordon & Sellers, for appellees.

The act is valid and was constitutionally passed. Booe v. Imp Dist., 141 Ark. 140. The 20 per cent. limitation being required by the Constitution could be dispensed with by the Legislature, and was. Gibson v. Spikes, April 15, 1920, 143 Ark. 270; 59 Ark. 513-529. The bill was properly passed by the Legislature, as the record evidence shows.

Strait & Strait, amici curiae.

The act 39, Acts 1920, is unconstitutional and void, because the notice required by law was not given as required by art. 5, § 26, Const. (2) It violates art. 5, § 22, of the Constitution, and (3) it violates art. 5, § 25 of the Constitution. The Constitution is mandatory. 23 Ark. 1; 32 Id. 516; 34 L. R. A. 448; 103 Ark. 109. The Legislature can not read a bill the third time and pass it in one house and on the same day read it a first and second time in the other house. 38 L. R. A. 71; 34 Id. 488. A majority of the land owners of the district did not consent to the construction of the improvement and the cost exceeded the 20 per cent. limit. Art. 5, § 25, Constitution; 117 Ark. 190.

OPINION

HART, J. (after stating the facts).

It is first insisted that the bill increasing the twenty per cent. limitation on the cost of the improvement is unconstitutional because, after being passed by one house, the bill was transferred to the other branch of the Legislature on the same day and read twice there.

This court has decided adversely to the contention of plaintiff in Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168, 213 S.W. 773. In that case the court held that under our Constitution a bill can not be read more than twice in either house on one day; but that after it has passed one house it may be carried to the other house on the same day and read the first and second times there, provided the rules be suspended as required by the Constitution.

Section 1 of the act passed at the special session of the Legislature of 1920 provides that the commissioners of the two improvement districts above referred to are authorized to proceed with the work of constructing the improvement, although the cost thereof in each improvement shall exceed twenty per cent. of the assessed value of the real property in the district. Special Act 39, approved January 26, 1920.

Counsel for the plaintiff contend that this provision of the statute is unconstitutional and in that contention we think counsel are correct.

Article 19, section 27 of the Constitution provides that nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in town or 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. This section of the Constitution was complied with in organizing the district, and a majority in value, of the owners of real property within the proposed district in each case signed the petition asking for the construction of the improvement. At that time section 5683 of Kirby's Digest was in force. It provides that no single improvement shall be undertaken which alone will exceed in cost twenty per cent. of the value of the real property in such districts as shown by the last county assessment.

According to the allegations of the complaint the cost of the improvement in each district will exceed the twenty per cent. allowed by the statute.

From the provision of our Constitution set out above it is apparent that local improvements in cities and towns must be based upon the consent of a majority in value of the owners of real property in the proposed improvement district. The foundation of the improvement is the petition of the owners of real property situated in the proposed district. The Legislature passed statutes for the purpose of carrying into effect the provision of the Constitution just referred to. One provision of the statute is that no single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property in such districts as shown by the county assessments. Kirby's Digest, § 5683. This section was in force at the time the original petition in each of these districts was signed. It was evidently the intention of the framers of the Constitution that the petition when signed by the property owners must be considered with reference to the statutes then existing for the purpose of carrying into effect the Constitution. Otherwise a majority of the owners of real property might sign a petition thinking that the amount of taxation they would have to pay for the improvement was limited by the existing laws and the Legislature might afterward materially increase their burden of taxation. This principle was recognized in Deane v. Moore, 112 Ark. 254, 165 S.W. 639. In that case it was held that an amendatory act to the effect that the interest on the money borrowed by the improvement district should not be computed as a part of the cost of an improvement in so far as it...