Commissioners of Broadway-Main Street Bridge District v. Quapaw Club

McCulloch, C. J. The General Assembly of 1919 (regular session) enacted a statute creating a local improvement district designated as “Broadway-Main Street Bridge District of Pulaski County,” to provide for the construction of two bridges across the Arkansas river at Broadway and at Main streets in the city of Little Bock. Appellee owns real estate within the boundaries of the district and instituted this action in the chancery court of Pulaski 'County to enjoin proceedings under the , statute, which is assailed as unconstitutional. The sole point of attack on the validity of the statute is directed to section 23, which reads as follows: “Section 23. When said bridges have been completely paid for, they shall be turned over to the county of Pulaski, and from thenceforth shall be the property of said county.” The contention is that the provision in this section is void, and that it is so inseparably connected with the scheme proyided in the statute as a whole that it renders the whole invalid. It is insisted, in the first place, that this provision is void because it deprives the property owners in the district of their property rights in the bridges to be constructed. In other words, it is argued that the owners of real property in the district have rights in the property of which they can not be deprived by having the bridges turned over to the county. Counsel for plaintiff rely on the case of Augusta v. Smith, 117 Ark. 93, as sustaining their contention that the owners of real property in a local improvement district have property rights which can not be transferred without their consent. This is an erroneous interpretation of the effect of the decision in that case. There a local improvement, a system of waterworks in the incorporated town of Augusta, was taken over by the city council pursuant to statute and subsequently the council undertook to sell and did sell the waterworks to an individual to operate for profit. We held that under the statute the incorporated town took over the waterworks, not as the private property of the town, but as trustee for the people of the district, and that there was no authority for the town to treat the property as private ownership and sell it to an individual. It is true we said in the opinion that the owners of the property in the district were the real owners of the improvement, which meant that they had rights in the property of which they could not be deprived by a sale to another for private purposes. There is nothing in that opinion to warrant the conclusion that it is beyond the power of the Legislature to authorize a transfer of the improvement to any public agency to operate for the benefit of The owners of the property in the district. In fact, we inferentially upheld the statute which provides that waterworks constructed as a local improvement in a city or town could be taken over by the municipality find operated. The statute now under consideration authorizes the turning over of the property to the county, which is a public agency and does not disturb the rights of the public or of the property owners within the boundaries of the district. The principal attack on the validity of this provision of the statute is on the ground that it compels the county court to take over the bridges, and therefore constitutes 'an encroachment upon the constitutional jurisdiction of the county court over roads and bridges. Counsel rely on the case of Road Improvement District v. Glover, 89 Ark. 513, where we held that a statute which authorized an improvement district to establish and improve new roads and imposed them upon the county court to maintain as public roads was void as an encroachment on the jurisdiction of the court. An interpretation of this section of the statute in connection with other parts of the statute leads to the conclusion that it was not the inten- ■ tion of the lawmakers to make it compulsory upon the county court to accept the bridges as a part of the public highways, and to impose upon the county court, against its judgment, the maintenance of these structures. It is true that the language of the statute constitutes an imperative command to the district to turn the bridges over to the county court, and the commissioners are not left with any discretion in that respect, but it is not compulsory on the county -court to accept the bridges. That is still left to the constitutional power of the county court in its control of bridges and public highways. We ought to indulge the presumption, in the absence of positive language to the contrary, that the framers of the statute did not intend to encroach upon the constitutional jurisdiction of the county court, and it is our duty to interpret the statute, so far as is consistent with its language, to avoid a meaning which would render it unconstitutional. Sallee v. Dalton, 138 Ark. 549. The fact that the statute is based on the assumption that the county court will accept the bridges and that no provision is made for maintenance in the event of nonacceptance does not evince a purpose to impose acceptance nor does it render the statute invalid. The scheme to construct the bridges is valid, even though further legislation might become necessary to provide for maintenance. This view of the matter that the Legislature did not intend to encroach upon the jurisdiction, but, on the contrary, recognized the authority of the county court, is supported by other provisions of the statute. In the first place, the preamble of the statute recites the fact that two improvement districts had already been formed for the purpose of aiding in the construction of these bridges, but that the county had not been able to raise the funds to build the bridges even with such assistance. Section 1 recites the contracts entered into by Pulaski County and concessions and grants made to the county for the construction of these improvements under the prior organization and provides that they shall inure to the benefit of this district. Section 2 requires the commissioners to file the plans and specifications for the improvement and the estimated cost with the clerk of the county court, which implies authority on the part of the county court to pass upon those plans. The county court is further authorized to levy assessments made by the board of assessors. These various provisions show a distinct recognition of the authority of the county court, rather than an attempt to encroach upon the constitutional jurisdiction of that court. We conclude therefore that the provision in section 23 is not compulsory upon the county court and does not constitute an invasion of its jurisdiction. . It is also alleged in the complaint that the commissioners have let a contract for the construction of the improvement, prior to the assessment of benefits, so as to ascertain whether or not the cost of the improvement will exceed the benefits. That question as presented in this case is ruled by our decision in Cherry v. Bowman, 106 Ark. 39, where we held that a contract for a local improvement did not become effective until the benefits were determined, still a court of equity would not afford relief unless there was an attempt to proceed under the contract prior to the ascertainment of the benefits. These are the only questions involved in this litigation, and we find that the grounds of attack made by the plaintiff are untenable. The decree is, therefore, reversed and the cause remanded with directions to proceed in accordance with this opinion.