123 Ark. 327 | Ark. | 1916
In the year 1912 there was an attempt to organize, under the general statutes of the State, an improvement district in the City of Wynne for the purpose of reconstructing, taking over and extending the system of waterworks theretofore constructed and put in operation by another improvement district. The district was declared to be organized and the petition of property owners asking for the construction of the improvement was duly filed with the city council, but subsequently litigation arose concerning the validity of the organization and on appeal to this court it ivas decided that the statutes conferred no authority for the organization of an improvement district for the purpose of reconstructing and taking over an improvement constructed by another district, for the reason that there was no legal warrant for such merger of the interests of the two districts or for the new district to take over the property of the old one. The organization was therefore declared to he invalid. Sembler v. Water & Light Improvement District No. 2,109 Ark. 90.
The General Assembly of 1915
Section 2 of the act reads as follows: “As more than a majority of the owners of real property within the district aforesaid petitioned the City -Council of the City of Wynne for the making of the improvements described in section 1 of this act, and consented that the cost thereof be assessed -against the real property in the district according to the benefits received, now, therefore, if any owner of real estate within said district shall desire to withdraw his name from said petition and cancel his consent to the making of said improvement, he may do so within thirty days after the passage of this act by filing with the commissioners of said district a peti-' tion in writing, -signed by himself, asking that his name be withdrawn from said petition and his consent can-celled. Other owners of- real estate within the district may sign said petition wdthin said thirty days.”
Section 4 provides -that the chancery court -should, on the first day that it is in session more than thirty days after the passage of this act, “ascertain whether said petition is signed by a majority in value -of the owners of real property within said district, as shown by the last county assessment, and shall eliminate from said petition all signatures in which the parties signing have filed with the commissioners in writing, expressing their desire to withdraw their names from said petition,” and that “if on said hearing the said court shall ascertain that said petition is signed by a majority in value of the owners of the real property within said district, as shown by the last county assessment, it shall enter a judgment accordingly, and its finding in the premises shall be conclusive, subject to the right of appeal to the Supreme Court,” and that if the court should find that said petition was not signed by a majority in value it should enter a judgment terminating the existence of the district.
The commissioners of the district are attempting to proceed under the new statute and this is an action instituted by a property owner of the district to restrain them from such proceeding, it being contended that the special act of the Legislature attempting to validate the organization of the district and to authorize further proceedings thereunder is unconstitutional and void. The chancery court dismissed the complaint for want of equity and an appeal has been prosecuted to this court.
In construing this provision of the Constitution with respect to its requirement for ascertaining the consent of the property owners, we have said: “It created a vested property right'in owners of real estate in cities and towns. It is a guaranty to them that their property shall not be taxed for local improvements except upon an ad valorem basis, and upon the consent of a majority in value of those to be affected by such improvement. Having this constitutional guaranty that their property shall not be subject to assessment except in this manner, then, until it is assessed in this manner, they have a right to object to any taxation upon it for the purpose of local improvements. This right can not be taken from them by an assumption that the Legislature ascertained that a majority desired this improvement, as this limitation -created and protects a property right, and is not a mere direction to the Legislature. The right of property owners to a hearing before their property can be subjected to this tax can not be taken away by presumptions of regularity of legislative proceedings. The only way in which this constitutional requirement can be fulfilled is by the enactment of such a statute as section 5667 et seq. of Kirby’s Digest, wherein a certain procedure is prescribed to obtain the consent of a majority in value, and a forum to determine whether such consent has been obtained. * *' * Until such plan as prescribed in the section just cited or some similar plan which likewise meets the constitutional requirements is provided, the Legislature is powerless to impose an assessment for local improvement in cities and towns. It is not the province of the Legislature to determine whether such consent has been obtained as a basis for the improvement. Its province is to create a procedure for obtaining such consent and a forum to determine whether such consent is obtained.” Craig v. Russellville Waterworks Improvement District, 84 Ark. 390; Bell v. Phillips, 116 Ark. 167.
It follows that the appellant is entitled to the relief for which he prays, and the chancery court erred in failing to grarit that relief. The decree is therefore reversed and the cause remanded with directions to the chancery court to enter a decree in accordance with this opinion.
Act 5, page 9, Acts 1915 (Rep.).