70 Ark. 451 | Ark. | 1902
Lead Opinion
The appellants, by this proceeding, seek to enjoin the defendants, as commissioners of the City Park Improvement District of Little Bock, from proceeding further to collect certain assessments levied upon their real property in said district, — among them the last assessment made under the ordinance of the city council.
It appears to be admitted in the agreed statement of facts that the district was properly organized on the petition of ten resident landowners, and that, within proper time after due notice given, the district was formed, and commissioners appointed, and that they in due time qualified, and made the necessary plans and specifications and estimates of the costs of .the improvement, and that the city council, upon the petition of a majority in value of the owners of property in the district, passed the necessary ordinance assessing the real property as required by law; and that, in fact, the district was properly organized, and the assessments made. The Hon. E. B. Peirce, sitting as special chancellor, heard the cause, and decreed against the appellants on all the controverted points, and they appealed to this court.
One of the more serious questions raised by the proceedings in the case, is whether or not the statute includes public parks, and such like, as improvements for which assessments upon the real estate of a district may be made by the city council in the manner provided for local improvements.
The appellants contend that under the familiar rule of construction, which confines the meaning of additional descriptive expressions to the class to which preceding specific terms and names belong, the improvements contemplated by the act are only streets, alleys, sewers and such* like or similar improvements. This is the doctrine of ejusdem generis. It would be difficult to say what other improvements there are or can be in a town similar to streets, alleys and sewers, and the contention of appellees that these descriptive names exhaust the particular class, we think, is well founded, and that public parks are not of that class, though it is true parks contain streets and drives, but these are not to be used for all purposes for which ordinary streets are intended and may be used; and still more might be said to distinguish parks from sewers, and take them out of the class to which the latter belong.
The statute on the subject, digested as section 5321 of Sandels & Hill’s Digest, is as follows, to-wit: “The council of any city of the first or second class, or any incorporated town, may assess all real property within such city, or within any district thereof, for the grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature, in the manner hereinafter set forth.” This language is certainly broad enough to include any kind and class of improvements which will enhance the value of the real estate of the particular district; that is, benefit it. In construing this statute, this court said in Crane v. Siloam Springs, 67 Ark. 36: “Provisions for local conveniences, like water, light, public parks for recreation, and other public accommodations of the same kind, are some of the matters which are furnished or provided for by municipal corporations in their quasi-private capacity, in which they act, not as an agency of the state, but exclusively for the benefit of their own inhabitants. It is in respect to such matters of local concern that the largest freedom of action has been allowed municipal corporations.” “The case,” says Judge Cooley, “must be extraordinary and clearly exceptive to warrant any court in declaring that the discretion has been abused, and the legislative authority exceeded.” Cooley, Taxation (2d E.), §§ 145, 688, 689; State ex rel. Bulkeley v. Williams, 68 Conn. 131; Williams v. Eggleston, 170 U. S. 304.
The only limitation as to the character of the improvement is that it must be a local improvement and of a public nature; that is, local to the city and the inhabitants thereof, and public to the extent that it shall be free to the public under such proper regulations as may be adopted for its control, management and preservation, by the city council. The text-books and their citations sustain the doctrine that public parks are proper subjects of city taxation; and it is even held that it is proper to call into exercise the right of eminent domain, in order to acquire the necessary ground for the same. 2 Dill. Mun. Corp. (2d Ed.), § 598.
The proper exercise of discretion by the city is conclusive upon the courts. 2 Dill. Mun. Corp. (2d Ed.), § 600.
The next very important question arising from the pleading is, whether or not the property of complainants, which does not actually adjoin the grounds included in the park, is assessable under the provisions of the 27th section, article 19, of the constitution of the state, which reads as follows, to-wit: “Nothing in this constitution shall be so construed as to prohibit the general assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to-be affected; but such assessments shall be ad valorem and uniform.” It is evident that this section confers no new powers upon the legislature, but the first clause of it is simply a recognition of power already existing; that is, inherent under the grant of general municipal powers. Section 255, Tiedeman, Mun. Corp. The second and last clause contains restrictions which, of course, must be observed, notwithstanding the inherent powers under the general grant of municipal power. In the discussion of this provision of the constitution, the word “adjoining” is made the controlling word, in the endeavor to determine whether or not any real property in the district is assessable, except that which absolutely touches the park grounds. Such is tire contention of the appellants. On the contrary, the appellees contend that all the property in the-district is adjoining, in one sense, the locality to be affected, and is therefore assessable. The etymological meaning of “adjoining” is “touching or contiguous to;” and there does not seem to be any other meaning to the word, when used in this sense. But what effect, in the practical affairs of life, the close relationship or connection of associate words or attendant circumstances may have upon its meaning, to give it a different shade of meaning, we cannot, say. It is sufficient for us to say, however, that the lexicographical meaning of the word “adjoining” is “close to,” “near to,” “contiguous” (see Worcester’s Dictionary); that it is thus given the same meaning as “adjacent,” which is more elastic than “adjoining,” when used in its etjmological sense.
In the case of Vestal v. Little Rock, 54 Ark. 325, in construing the word “contiguous” (which all must agree is, as nearly as may be, synonymous with “adjoining”) in its employment to define what land may or may not be annexed to a city or town, the court said: “To sustain their first ground for reversal, appellants rely on the fact that the 'city is on one side, and a part of the lands included in the order is on the other side, of the Arkansas river. But we do not think this fact conclusive that the lands are not contiguous within the meaning of the act. The river is included in the land annexed, and is therefore not a break in the contiguity, nor an insuperable barrier to a complete amalgamation of the communities upon its opposite bank," — citing authorities. Again, in the case of Little Rock v. Katzenstein, 52 Ark.107, where, of a lot not at all touching the locality of the improvement itself, but separated from it by another assessable lot, this court said: “The action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake." In the case at bar there is no break in the continuity of the assessable lots or parcels of ground from the park grounds to the outermost boundaries of the district, which is the city. Therefore, according to Katzenstein v. Little Rock, supra, all is adjoining the locality to be affected.
Again, it is undoubtedly true that, by the erecting of buildings, the planting and training of trees, the sowing and setting of grasses and flowers, and the like, upon the park grounds, the park itself is affected in a merely physical way, and in that sense the park may be the “locality to be affected." But that is not, perhaps, the effect spoken of in the law on the subject, in connection with the levying of assessments for local improvements on the property outside the park belonging to private individuals or corporations liable to such assessments under the law. It is the locality formed by the assessable property, in all probability, which is to be enhanced in value by the making of the improvement that constitutes the locality to be affected; and this, of course, is all the property in the district which is otherwise assessable for such purposes. Such is the property “affected," or may be, within the meaning of the constitution, because it is the property benefited, and that alone can justify the assessments.
Now, it is evident that, under the doctrine contended for by the appellants, no park could be built; for the revenue arising from an annual assessment for 20 years of 1 per cent, would be in all conceivable cases utterly inadequate to purchase the necessary grounds and improve them into a park. The legislature, in authorizing the formation of improvement districts for the purpose of making public parks, doubtless took into consideration all the meanings that might be given to words and phrases used in the constitution, and, in order to make its action of practical use, and not utterly futile, probably ignored the theory contended for by the appellants, and acted upon some one of those referred to above, or some other that we may not have named. That being the case, and it being purely a legislative matter, the doubts that may arise as to the constitutionality of its action, under a familar rule, must be resolved in favor of the validitjr of the same. Neither is it clear how the city council, in conforming-its acts to the act of the legislature, could be guilty of proceeding without the authority of law, in view of the construction this court has put upon the constitution and the statutes. We conclude that the property of appellants was properly assessable, and that there is a lien on the same for the assessments.
There is another question raised by the appellants which we will consider. And that is, whether or not their property was benefited by the contemplated improvement. This contention doubtless has for its origin the decision of the supreme court of the United States in the recent case of Norwood v. Baker, 172 U. S. 269. That was a peculiar ease, indeed, — involving a mixture of questions arising both from an exercise of the right of eminent domain, and the law imposing local assessments for the purpose of not only paying the expenses of street improvement but for paying for the ground condemned for a street. The condemned property and all the property assessed was the property of a woman. She was thus made to pay not only for the improvement of the street, but to pay herself for the street itself. The case was reversed, of course; but, in assigning grounds for the reversal, many things were said that gave rise to the greatest confusion. It was not long, of course, before the soundness of the opinion in that case began to be called in question, and the opinion sharply criticised, not only in the state courts, but also in the federal courts; and a half dozen or more of these cases have since been appealed to the supreme court of the United States, and the decision of Norwood v. Baker, supra, has been so weakened that it is really of little practical force, as the law now stands, except in so far as it may be determined therefrom that in the enactment of state laws it must appear somehow, it matters little how, that the benefits to accrue to the property owner must be considered. This leaves the method of our constitution — the assessment according to value and uniform — intact.
Now, it goes without further question that the inclusion of a piece of real property in an improvement district by city ordinance is at least prima facie proof that it will be benefited by the proposed improvement; and, there being no attempt to show to the contrary in this case, the finding must be that the property is assessable. In fact, it is manifest, from the universal opinion in favor of the proposition that such property is always benefited by such improvement, that the attempt to show to the contrary would be useless in all instances; for all men concur that such things add to the health, comfort, pleasure and convenience of a town or city, and the inhabitants thereof.
We need not repeat here, what has been so often recently said by this court, that the whole area of a eity may be included in one improvement district; nor need we say that such is the plain meaning of the language of the legislative enactment from which we have quoted. The organization of districts is left to the sound discretion of the city or town council in every instance.
This, of course, affirms the decree in this cause, and makes it unnecessary, in the determination of this appeal, to say that, in our opinion, when it is found that one has joined in the petition of ten asking the organization of the district, or has become one of the majority in petitioning for the assessment to be made, that one is estopped from calling in question the organization of the district or the validity of the assessments. As to whether one who has paid voluntarily one or more of the assessments is thereby precluded from resisting the payment of the others, we do not say. As covering the whole ground, we adopt the decision of the special chancellor as our own, in addition to what we have said.
The decree is affirmed.
Dissenting Opinion
(dissenting.) If the decision of this case depended on my personal feeling in the matter, 1 should favor the appellee, for I consider the park to be an ornament to the city, and should like to see it improved. But a consideration of the case has convinced me that the assessment levied against the lots of the appellant should not be sustained, for the reason that the lots neither adjoin nor are adjacent to the park which it is proposed to improve.
A provision of our state constitution specially authorizes assessments on real property for local improvements in towns and cities, but provides that such assessments shall be based upon the consent of a majority in value of the property holders owning property adjoining the locality affected. Const. 1874, art. 19, § 27.
In considering the meaning of this section, the first question I shall notice is what is meant by the phrase “the locality affected,” for it is only land adjoining “the locality affected” that the constitution permits to be assessed for the improvement. In other words, it is not the “locality affected,” but the property adjoining the “locality affected” which is to be taxed for the improvement. For this reason, it seems to me very plain that the phrase “locality affected,” as used in the constitution, does not mean the locality or land benefited in value only by the improvement, for, if it did, it woukl include the whole improvement district. As the land upon which the assessment is to be levied is that adjoining the “locality affected,” then, if “the locality affected” includes the whole district, it would follow that the constitution would authorize the assessments to be levied, not only upon the lands of the improvement district, but also upon the lands adjoining the district, which would be upon the lands outside the district. This would be absurd, and would lead to a result that we know was not intended. The .locality affected means, then, I think, not the lands benefited in value by the improvement, but that which is physically affected by the improvement, such as the street or the park which is improved, and it is the land which adjoins this improvement that the constitution permits to be assessed.
Now, the city is laid off into blocks 300 feet square, and the lots of appellants upon which the assessment is imposed are from a quarter of a mile to three miles distant from the park. If these lots adjoin the park, then the whole city adjoins the park. And this is the conclusion at which the majority of the judges have arrived. In their opinion, they say, as a reason for this conclusion, that “there is no' break in the continuity of the assessable lots or parcels of ground from the park to the outmost boundaries of the district, which is the city.” But by the same line of reasoning it can be shown that the whole county adjoins the park, for there is no break “in the continuity of the ground.” The same thing may be said of the state, and, as the whole world itself is but a compact ball of which the park is a part, it may all, under this line of reasoning, be shown to adjoin the park.
Evidently, this is not the correct construction of the section of the constitution referred to. We should presume that words in the constitution have been used in their natural and ordinary meaning. Cooley, Const. Lim. (6th Ed.), 73. The usual and ordinary meaning of the word “adjoining” is contiguous, or in contact with. Cent. Diet.; Webster’s Diet. This is also the meaning that the courts have generally given to it when found in the law. In re Ward, 52 N. Y. 395; Johnson v. District of Columbia, 6 Mackey (D. C.), 21; Akers v. United N. J., etc., R. Co., 43 N. J. L. 110; Miller v. Mann, 55 Vt. 475; And. Law Dict.
This, it seems to me, is the meaning of the word as found in our constitution, though in the case of Little Rock v. Katzenstein, 52 Ark. 107, this court, in a street improvement case, held that all the lots of each quarter of a block adjoined both of the streets upon which the quarter abutted, notwithstanding that it was divided into lots, so that some of them were not contiguous to both streets. In other words, the court held that the whole of the quarter of the block adjoined the streets upon which it abutted, and that the question of whether the property in the quarter block adjoined a street was not controlled by the way in which it was subdivided into lots.
Under this decision, it might perhaps be held that all the lots in the blocks surrounding and contiguous to the park were adjoining it, within the meaning of the constitution, but it seems to me to furnish no authority whatever for holding that lots separated from the park by nearly the whole city and by the Arkansas river are still adjoining the park.
But it is said that, if only the blocks adjoining the park can be assessed, the park could not be improved. To this we can say that the park could be improved by the use of the general funds of the city, or it could be improved in part by such funds and in part by an assessment upon the surrounding blocks to the extent that these blocks are specially benefited by the improvement. If the tax which the law allows the city to levy is not enough for that purpose, the law should be changed. The argument on this point may show that the law is defective, and needs revision, but it furnishes no reason why the courts should make the change in the law by putting a new and altogether novel meaning upon the words used in the constitution.
The contention that the action of the city council in including the whole city in the district to be assessed for the improvement of the park is conclusive of the question that the lots of appellants adjoin the park can hardly be treated as seriously made. It is true that discretionary powers of a city council are not subject to judicial control, but under our constitution it is not within the discretionary powers of a city council to assess lots for an improvement where the block in which the improvement is situated does not adjoin the locality improved. In the absence of a showing to the contrary, the court would presume that the council did not overstep the law, but, when it is clearly shown that it did undertake to do so, the courts would be compelled to hold that the constitution was superior and paramount to the city ordinance; otherwise, the constitution could be overturned by the action of a city council, and, so far as affording protection to property rights, would be worthless. There is neither reason nor authority for such a contention. Norwood v. Baker, 172 U. S. 269.
Another point argued is that some of these appellants joined in the petition to the council for the formation of the improvement district, and are thereby estopped to question the validity of the ordinance the passage of which they procured. As there are others of the appellants who did not join in the petition, and as the decision of the majority of the judges is not based on this ground, I have not given much consideration to this point, for it affects only those who signed the petition. But I will say that, as to those who signed the petition to the council for the formation of the district, it might well be held that they could not at this time question the fact that their land was properly included in the district; the district having been formed and the land included at their request. After the improvement has been made as requested by them, it would seem to be too late for them to question the validity of the ordinance on that ground, and I am of the opinion that they are estopped from doing so. Burlington v. Gilbert 31 Ia. 356.
But, as before stated, this does not affect the rights of those who did not sign the petition. As to them, it seems to me that it is clearly shown that their property does not adjoin, or even lie adjacent to the park, and that therefore the attempt to levy a special assessment upon it for the improvement of the park is contrary to the constitution and invalid. For this reason, I think that the decision of the chancellor sustaining the assessment is, as to those who did not sign, wrong, and should be reversed.
