114 Ark. 366 | Ark. | 1914
The only question presented by this appeal, for determination, is whether an improvement district can be organized in a city for opening, establishing and creating an alley through property where no alley has ever been opened, dedicated or provided for.
Section 5664, Kirby’s Digest, provides, “The council of any city of the first or second class of any incorporated town may 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 improvement of a public nature in the manner hereinafter set forth.”. Section 5672 authorizes the board of improvement to form plans for the improvement within the district and prescribe estimates for the cost thereof, “'but all such improvements shall be made with reference to the grade of streets and alleys that may be fixed by the ordinances of said city. ’ ’
Said section 5664 authorizes the formation of improvement districts, “for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvement of a public nature, etc., and the appellee insists that an alley is a local improvement of a public nature within the meaning of the statute. The statute, however, provides a restriction and limits the purposes for which districts may be formed to “grading or otherwise improving streets and alleys,” evidently referring to streets and alleys already opened, dedicated or provided for. This view is confirmed by the statutes providing a different agency and giving the municipalities themselves the power for opening and establishing streets and alleys. Section 5456 and subdiv. 2, sections 5593, 5648, Kirby’s Digest.
The judgment is reversed and the cause remanded with directions to disniiss the complaint for want of equity.