Solomon v. Wharf Improvement District No. 1

Smith, J. (after stating the facts). In the case of Mullins v. Little Rock, 131 Ark. 64, we said: “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 Distrid, 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 uniform and free from unjust discrimination; ’ ’ It is true the district there upheld was created by a special act of the Legislature; but the district here was organized under an act of the Legislature which conferred .upon cities and towns authority to “assess all real property within such city, or within any district thereof, for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature, in the manner hereinafter set forth.” Section 5664, Kirby’s Digest. In the case of Crane v. Siloam Springs, 67 Ark. 36, the entire city had been organized into an improvement district for the purpose of constructing and maintaining a general system of waterworks, and it was there contended that neither the Constitution of the State nor the statute quoted above conferred that .authority; but, in holding that the district was constitutional and that legislative authority for its creation existed, the court said: “Provisions for local conveniences, like water, light, public parks for recreation and other public accommodations of the same kind, are some of the matters which are furnished or provided for by municipal corporations in their gms'i-private capacity, ixx which, they act, xiot as an agexicy of the State, but exclusively for the benefit of their own ixihabitants. It is in respect to such matters of local concern that the largest freedom has been allowed municipal corporations. The Constitutions of the different States, as a rule, leave their Legislatures free to confer ample powers upoxi such bodies in the matter of laying assessmexits to provide for such local conveniences when the improvement adds benefit to the local real estate. ‘The case,’ says Judge Cooley, ‘must be extraordinary and clearly exceptive to warrant any court in declaring that the discretion has been abused, and the legislative authority exceeded.’ Cooley on Taxation (2 ed.) 145, 638, 689; State ex rel. Bulkley v. Williams, 68 Conn. 131; Williams v. Eggleston, 170 U. S. 304.” In this case of Crane v. Siloam Springs the court .defined thei phrase “local improvement” in language which has since been frequently approved as follows: “If we look for the technical or legal xneaning of the phrase ‘local.improvement,’ we find it to be a public improvement, which, although it may incidentally benefit the public at large, is made primarily for the accommodation axxd conveixiexice of the inhabitants of a particular locality, and which is of such a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement. “In the case of Matthews v. Kimball, 70 Ark. 451, the entire city of Little Rock was organized into an improvement district for the purpose of acquiring a public park, and the statute above quoted was held sufficient to confer that authority. After quoting the statute, the court there said:- ‘‘This language is certainly broad enough to include any kind axxd class of improvements which will enhance the value of the real estate of the particular district ; that is, bexxefit it. * * * The only limitation as to the character of the improvement is that it must be a local improvement and of a public nature; that is, local to the city and the ixihabitants thereof, and public to the extent that it shall be free to the public under such proper regulations as may be adopted for its control, management and preservation, by the city council. ’ ’ In the case of Shibley v. Fort Smith & Van Buren Dist., 96 Ark. 410, a special act of the General Assembly incorporating portions of two comities into an improvement district for the purpose of constructing a bridge, was upheld. The court there discussed some of the questions here raised, and in .its opinion said: ‘ ‘ This brings us to a consideration of the kindred question raised in the cases, that a bridge can not be made the subject of a local improvement, to be paid for by local assessments, for the reason, as alleged, that it is.in its nature of a general benefit to the public at large, and should be constructed by general taxation. Whilst it may be true that the benefits which flow from almost all local improvements, which are usually authorized to be constructed at the expense of local property owners—street pavements, sewers, public parks, waterworks, in cities and towns, levees built for the protection of overflowed lands—all inure to the benefit of the general public to a greater or less extent, yet it is not true that a bridge, any less than improvements of the other kinds mentioned above, does not produce special benefits to adjoining lands so as to justify special assessments to defray the expenses of such improvements. A bridge for the use of the public, like a street in a city or a highway in the country, is undoubtedly of great benefit and convenience to the traveling public; nevertheless, it may be also of special benefit to adjoining lands and a fit subject for construction from the proceeds of local assessments.” See, also, the opin- ■ ion of this court in the case of Mullins v. Little Rock, 131 Ark. 59. In vol. 1, sec. 360, Page & Jones on Taxation by Assessment, it is said that “The reasons which justify assessments for roads and other highways are said to justify assessments for waterways.” And we conclude, under the facts of this case, that the lands to be taxed will receive that special benefit from the proposed improvement which must exist to warrant the imposition of a tax to pay for its construction. Upon the proposition that the improvement is not permanent, it may he said that it appears from the testimony that the purpose of the proposed improvement is to operate permanent terminals. A boat or loading barge is made necessary because there are such varying stages of water in the harbor. Other features of the proposed improvement involve grading and paving the river front and laying railroad tracks. The river front is to be paved in a way to make it impervious to the rise or fall of the river, and the use of the wharf boat or loading barge, which, of course, must be repaired from time to time, tends to make the improvement permanent by making it possible to use the improved terminals without reference to the stage of the river. We conclude, therefore, that authority existed under the law for the construction of the proposed improvement, and the decree of the court below is, therefore, affirmed. Hart, J., dissents.