Mullins v. City of Little Rock

McCULLOCH, C. J. Tbe city council of Little Rock, by an ordinance duly enacted upon tbe petition of property owners as prescribed by statute, bas created a local improvement district “for the purpose of aiding tbe County of Pulaski in building a bridge across tbe Arkansas River, said bridge to land on Broadway street in tbe city of Little Rock, Arkansas.” A majority of tbe owners of real property in tbe district petitioned for tbe improvement and tbe commissioners have been appointed by tbe city council and are about to proceed with tbe assessment of benefits and tbe levying of assessments to pay for tbe improvement. Appellant is tbe owner of real property in tbe district and instituted tbis action in tbe chancery court to restrain further proceedings in tbe assessment of benefits, levying of assessments, issuing bonds and tbe construction of tbe improvement through tbe agency of tbis improvement district, on tbe ground that there is no lawful authority for tbe organization of a local improvement district for tbe purpose named. Tbe chancery court denied relief and an appeal bas been prosecuted to tbis court from tbe decree. Another district was once formed for tbe same purpose mentioned in the organization of tbis district, but this court held that under the law, as it then stood, there was no authority for tbe formation of a local improvement district to aid in tbe construction of a bridge connecting two cities. Mullins v. Little Rock, 113 Ark. 590. Tbe property owners made another attempt to further tbe improvement by organizing a district to construct one-half of tbe bridge across tbe Arkansas River between tbe cities of Little Rock and Argenta, and tbis court held that tbe effort was futile, and that tbe formation of tbe district for that purpose was void. Mullins v. Bridge Improvement District, 114 Ark. 324. 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 huild 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. 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. (1) 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 uni-' form and free from unjust discrimination. (2) It is insisted, in the first place, that it is beyond the power of the Legislature to authorize the organization of an improvement district inside of a city or town to make an improvement situated outside of its limits. We decided in one of the former cases cited that a district could not be organized for the purpose of constructing such an improvement, but since then the Legislature has supplied the power, and we perceive no sound reason why it can not be done, for special benefits may inure to property within a given locality inside of the municipality, even though the improvement lies partly outside. The improvement now under consideration affords an apt illustration, for the property adjacent to a bridge spanning a river which forms the boundary between two cities may receive marked benefit from the improvement, even though the greater part of the improvement lies outside of the district and municipality. There is nothing in the Constitution which forbids the organization of such a district. In fact, the Legislature passed a statute many years ago authorizing the organization of improvement districts for the construction of waterworks and sewer systems with part of the improvement lying outside of the municipalities, and the validity of that statute has never been questioned, although this court had previously held that in the absence of such legislative authority it could not be done. Rector v. Board of Improvement, 50 Ark. 116. The Constitution places certain limitations, as before stated, upon the power to organize districts for “assessments on real property for local improvements in towns and cities, ’ ’ but we have construed that provision not to restrict the power to organize districts lying partly inside and partly outside of cities and towns. Butler v. Fourche Drainage District, supra. All that the framers of the Constitution meant was that the assessments on real property in districts wholly within cities and towns must be based upon the consent of the majority in value of the property owners to be affected. It was not a grant of power, but a limitation to that extent upon the power of the lawmakers. (3-4) Again, it is urged that a bridge which forms part of a highway constitutes a general improvement which affects the whole public and can not be made the object of a local improvement district. There are decisions in other States to the effect that bridges, as well as other parts of public highways, can not be treated as local improvements, but this court has steadily held to the contrary. In fact, the most frequent applications of the improvement district laws in this State have been to the organization of districts for the purpose of improving streets and highways, and the power has scarcely ever been questioned. We have expressly held that a bridge situated either in a rural district or one situated inside of a city may be constructed as a local improvement. Shibley v. Fort Smith & Van Buren District, 96 Ark. 410; Board of Directors v. Collier, 104 Ark. 425; Ferguson v. McLain, 113 Ark. 193. That subject is fully discussed in the recent case of Bennett v. Johnson, 130 Ark. 507, where we reiterated the rule so often announced by this court that an improvement may be a local one so as to justify local, assessments where there is a special and peculiar benefit inuring to the adjoining property, even though the general public enjoys a degree of benefit from the improvement. We held, too, that the legislative determination of the character of an improvement as a local one is conclusive, unless arbitrary and unfounded in reason, and that principle applies to the present case, because the statute under consideration is a special one and necessarily constitutes a legislative determination of the fact that bridges across the Arkansas river between the cities of Little Rock and Argenta may constitute local improvements. We can not say as a matter of law that that determination is such a manifest error as to call for judicial interference with- the legislative will. (5) One of the most serious considerations in the case is whether or not the authority to levy assessments on adjacent property for the purpose of raising money to aid the county in the construction or repair of bridges, which presupposes that the benefits to be derived from the use of funds out of the county treasury does not overturn or render inconsistent the further determination of the lawmakers that the improvement is a local one so as to justify special assessments on the adjacent property. We think, though, that the better rule is to uphold the legislative determination to the extént that the improvement is local in its nature, even though the general public will receive benefits so as to' justify expenditures of public funds. That is just another way of saying, as we have often said heretofore, that an improvement may be local in its nature even though the general public enjoys a degree of the benefits. We have, in fact, held that an improvement district may be organized to improve a public street in a city even though it is necessary to obtain public funds from the city in order to complete the improvement. McDonnell v. Improvement District No. 145, 97 Ark. 334. This conclusion is very forcibly and aptly stated by the Supreme Court of Minnesota, in dealing with the subject, as follows: “Such improvements being public in their nature, it is rare that a case arises where the general public do not share to a greater or less extent in the benefits, though in some cases, as of alleys or lateral streets or sewers, the benefit may seem to be peculiarly local. But it has never been contended that, in authorizing local assessments in pursuance of this constitutional provision, municipal authorities were to be limited to such improvements as are entirely local in their character. The city at large is benefited, and at the same time special benefits in ordinary cases result to the owners of property adjoining or in the vicinity of the improvement. If the special benefits to property so locally affected are equal to the cost of the work then an amount, not exceeding the whole cost may be assessed upon such property; but if the expense thereof exceed such benefits, then the city at large should in any event bear a portion of the burden. ’ ’ State v. District Court of Ramsey County, 33 Minn. 295. "We are of the opinion, therefore, that it is not beyond the power of the Legislature to authorize a district to be formed for the purpose named. (6) It is urged that the assessment of property in Little Rock will be unjust and discriminatory because no part of the property adjacent to the bridge on the Argenta side is to be taxed. Counsel cite in support of that contention decisions of this court holding that uniformity must be observed in assessments for local improvements and that where there is other property which would obviously be benefited by an improvement in the same degree, it can not be omitted from the assessment. Davis v. Gaines, 48 Ark. 370; Heineman v. Sweatt, 130 Ark. 70. Those were cases, however, where property lying inside of the improvement district was excluded from taxation, and where it was a demonstrable error to say that the omitted property would not be benefited. It is only in such instances as that that in a judicial review the legislative will may be overturned. The decision of this court in Conway v. Miller County Highway & Bridge District, 125 Ark. 325, is, we think, conclusive of this question. There must be a limit somewhere to the boundary of a district organized for the construction of- an improvement of this kind, and the action of the city council in fixing the boundaries is conclusive, unless it is obviously erroneous and arbitrary. We can not say that the property on the other side of the river will be so obviously, benefited in the same degree as the property on this side as to constitute an unjust discrimination in the assessment of the property in the district for the construction of the improvement. (7) A majority of the court, therefore, reaches the conclusion, not without some difficulty, it is true, that there is no legal objection to be found to this district, or to the validity of the statute under which it is formed, and that the decree of the chancery court in so declaring was correct. The decree is, therefore, affirmed.