Bahlau v. Bloom

Hart, J., (after stating the facts.) It is sought to uphold the decree of the chancery .court .-upon the authority of White v. Loughborough, 125 Ark. 57. In that case the court upheld the validity of a statute providing for the annexation of territory to an improvement district, and held that the assent of the property owners in the original district to the annexation was not required, because no additional burdens would be placed upon their property, and that the cost of making the additional improvement must be .borne by the property within the limits of the annexed territory. That case does not support the decision of the chancellor, but on the contrary is. an authority against it. The court in that case expressly said that, if the effect of the annexation was to place an additional burden upon the owners of real property in the old district, it could not be done without their consent. The reason given was that art. 19, sec. 27, of our Constitution provides, in substance, that local improvements in cities and towns shall be based upon the consent of a majority in value of the owners of real property in the proposed district. It is true that in. the instant case, the evidence tends to show that the method adopted would cost the property owners of the original district less than if a contract had been let and an assessment of benefits made to pave the streets within the boundaries thereof. This, however, is not the test, for the Constitution makes the right to levy assessments for local improvements in cities and towns depend upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected. Where additions are made to the boundaries of an improvement district already organized without the property owners in it having a voice in the annexation, and additional burdens are placed upon their property, it is evident that the constitutional provision just referred to has been disregarded. It does not make any difference that witnesses may think the method adopted will cost the property owners in the original district'less; for under the Constitution they must have a voice before their lands can be taxed to make a local improvement. The wisdom of the provision is manifest. To illustrate : the property owners in the original district in the present case are liable for the whole of the bond issue, and their property is liable for assessments to pay the whole cost of the improvement, and that without their having any voice in the matter. A devastating fire might destroy all the improvements in the various annexations and render it necessary to increase the burdens on the property in the original district. Again, if the property in the various annexations were so situated that it should cave into the river, this would greatly add to the burden upon the property in the original district. It does not make any difference that this has not happened. The test is not what has happened, but what might be the consequences to the old district. The provision of the Constitution under discussion plainly means that no burdens shall be added to the property owners in the original district without théir consent. It is true that the agreed statement of facts shows that the annexations were made in the manner provided by the statute, but the board of improvement, under the principles above announced, could not let one contract for making the improvement in the old district and the various annexations thereto. Neither could it make one bond issue serve as if it was an entire improvement. In short, the assessment of benefits in the original district must be made, the contract let, and the bonds issued for the improvement in that district as a single improvement and without any relation to the various annexations thereto. It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion and according’ to the principles of equity.