118 Ark. 119 | Ark. | 1915
Lead Opinion
(after stating the facts). Subdivision F of section 1 of the act in question provides that hereafter, when ten or more owners of real property within a proposed improvement district shall petition the county court to establish a road improvement district to embrace a certain region, describing generally the region which it is intended shall be embraced within the boundaries of the proposed district, and .shall file a plat with said petition upon which the boundaries of the proposed district are plainly indicated, showing the roads to be constructed, as nearly as practicable, it shall then be the duty of the county court to give notice by publication of the filing of • this petition for the purpose of calling upon all property owners within the proposed district to .appear on a designated day and show cause for or against the establishment of the district.
The first question which naturally arises is, Has this requirement been complied with? Various other questions are discussed in the respective briefs; but we find it unnecessary to consider those questions for the reason that the petition does not meet the requirements of the act under which the proceeding was had. The petition may describe the improvement contemplated in general terms and leave the plans for the future development of the board. Ferguson v. McLain, 113 Ark. 193, 168 S. W. 127; section 6 of Act 212 of Acts of 1913.
The judgment of the court below is, therefore, reversed, and this -canse will be remanded with directions that the -court vacate and set aside its -order directing the establishment of the district.
Rehearing
ON REHEARING.
Upon petition for .rehearing it is now stipulated that there was no uncertainty about the roads to be improved; that the roads were accurately described in the petition for the establishment of the district, and upon the plats showing the proposed improvement, which were attached to and made -a part of the petitions, and that the -agreed -statement was prepared for the purpose of shortening the record upon the appeal to this court. We are now -asked to decide the case which the parties say was tried below.
Three grounds for reversal of the judgment of the lower -court are presented and urged by appellants in this appeal. The first raises the question of the power of the Legislature to grant road improvement districts authority to build -or -construct roads which thereafter will become county roads. The -second raises the question of the power of the Legislature to authorize the -creation -of road improvement districts based upon a petition containing the signatures of a majority in numbers only of the owners -of land within the proposed improvement district. The third raises the question of the authority of th-e county -court to include and assess town property for the purpose -of building or improving roads out in the county and without the corporate -limits of the town.
The proposed district embraces only a small part of Lonoke County. It appears from the agreed statement of facts that the 'district lies wholly within township 1 south, range 9 west, and does not include the whole of that township. No attempt is made to show that the roads to be improved are too numerous, diverse or independent, or too remote from each other, to be embraced in ■one district and sustained by local .assessments. Road Imp. Dist. v. Glover, 89 Ark. 513.
We discuss the questions involved in the order of their presentation.
This question was considered in the case of Butler v. Board of Directors Fourche Drainage Dist., 99 Ark. 100. There an improvement district was established for the purpose of draining Fourche bottoms and certain contiguous territory. The boundary of the district included the whole of the .city of Little Bock, and several adjoining townships outside of the city. As originally enacted, the act provided that the consent of a majority in value of the property owners should be .secured. But the act was subsequently amended to dispense with this requirement, and it was insisted that this amendment rendered the act unconstitutional. The ¡court did not take this view, however, and decided that the constitutional requirement that assessments .on real property for local improvements in towns and cities ¡shall “be 'based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected” (article 19, section 27), does not forbid the creation in good faith of an improvement district lying partly within and partly without a city or town, without requiring the consent of a majority of the urban property owners within the district. In the opinion in that case it was .said: “We are of the opinion that the above-quoted provision of the Constitution” (article 19, section 27, which requires the consent of the owners of a majority in value of the property adjoining the locality to be affected within the town or city in which the proposed improvement is located), “applies only to assessments for improvements purely local to a municipality, ¡and not to local improvements covering wider territory, even though a part or all of the municipality be included therein. An improvement district like this, covering territory both in and out of a municipal corporation, does not fall within either the letter or the spirit of the constitutional provision. It is not a local improvement in a town or city, and therefore not within the letter of the constitutional prohibition. It is not within its spirit, for, there being no inhibition upon the creation of districts outside of cities or towns, there is no reason for construing the provision to mean that the consent of the property owners inside of the city or town must be obtained, whilst the wishes of the property owners in the same district outside of the city or town may be ignored. It is obvious that the framers of the Constitution did not have in mind a provision which would operate upon lands in one part of .an improvement district and not upon lands in other parts. The principle of uniformity would be violated if that be the proper construction of the provision, for many a local improvement, such ,as a drainage or levee district, affecting alike lands inside and outside of cities and towns, would be frustrated by the urban property owners withholding consent. Property outside of the city or town could not be taxed for the benefit of the property inside thereof, and thus the whole scheme would be defeated and suburban property left without means for improvement.” See also Less Land Co. v. Fender, 119 Ark. 21, 173 S. W. 407; Burton v. Chicago Mill & Lbr. Co., 106 Ark. 296; Grassy Slough Drainage Dist. v. National Box Co., 111 Ark. 144; Board of Dir. Jefferson County Bridge Dist. v. Collier, 104 Ark. 425; Shibley v. Fort Smith & Van Buren Bridge Dist., 96 Ark. 410.
Many cases discuss the theory of such assessments, but we need not review them here, as no quetion is made a;s to the manner of assessing, iior of the amount of the assessment, hut only as to the right to mate any .assessment, and the determination of that question is one of fact not presented by this record.
The judgment of this court heretofore rendered reversing this case will 'be set aside, and the judgment of the court below will he affirmed.-