Wells v. St. Imp. Dist. No. 31, N. Little Rock

Habt, J. (after stating the facts). It is the contention of counsel for the plaintiff that, while under the first petition the powers of the commissioners are limited to grading and paving the streets only, still the effect of the second petition is to give them the power, not only to grade and pave the streets, but to construct curbs, gutters and storm sewers. This court has recognized that the property owners may limit the powers of the commissioners by specifying with particularity the kind of materials to be used and the cost of the improvement. McDonnell v. Imp. Dist. No. 145, Little Rock, 97 Ark. 334. This court has also held that two distinct improvement districts having the same boundaries may be organized, the one for the purpose of grading and paving the streets in it, and the other for the purpose of curbing, guttering and storm sewering the same streets. Bottrell v. Hollipeter 135 Ark. 315, and Johnson v. Hamlen, 148 Ark. 634. In these cases the court held that, while curbing and guttering and constructing storm sewers may be incident to the caving and grading of streets, and therefore anprouriatelv included in a single improvement district organized for the purpose of paving and gradina' streets, vet they are not convertible terms, and do not necessarily include each other. It is true that the first petition and the ordinance provided for paving and grading the streets and contained a restriction in express terms that the district was not organized for curbing, guttering, and storm sewering the same streets, and that the second petition and ordinance did not contain any restriction or limitation against curbing, guttering, and storm sewering, yet both ordinances were passed pursuant to the same statute to effectuate the same purpose and must necessarily be read and construed in the light of each other and with reference to the purpose sought to be accomplished. When this is done, We do not think that there is any variance between the purposes to be accomplished by the two ordinances. While the express language of the first petition and ordinance limits the improvement to paving and grading by expressly stating that curbing, guttering or storm sewering could not be done, we think the use of the words, paving and grading as used in the second petition and ordinance necessarily limits and restricts the power of the commissioners to paving and grading the streets. When construed in the light of the first petition and ordinance, by necessary implication the language used in the second ordinance restricts the power of the commissioners to paving and grading the streets merely. This is especially true when we consider that the city council on the same day passed an ordinance creating an improvement district out of the same territory for the purpose of constructing curbs, gutters and storm sewers in the same streets. It follows that the decree of the chancery court was correct and will be affirmed.