282 S.W. 971 | Ark. | 1926
Appellees, who were the plaintiffs below, owned real property within the limits of Paving District No. 36 in the city of Fort Smith, and they brought this suit to cancel the ordinance of that city whereby the district was created.
Two questions are presented by this appeal. The first is whether the amendment voted on at the election in 1920 as Amendment No. 13 applies to municipal ordinances creating improvement districts in cities and towns; and the second, whether the improvement district here in question was void because the cost of the proposed improvement exceeded the betterments assessed therein. *1161
Under the decision of this court in the case of Hill v. Brickhouse,
Relevant portions of the constitutional amendment read as follows: "Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent. of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measure. In municipalities the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties, upon the office of circuit clerk. In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election, at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; nor less than ninety days when filed against a local or special measure passed by the General Assembly.
"Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in, real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation."
The amendment contained a section reading as follows:
"Definition. The word `measure' as used herein includes any bill, law, resolution, ordinance, charter, *1162 constitutional amendment or legislative proposal or enactment of any character."
In our opinion the amendment does not apply to the ordinance in question.
In the case of Fitzgerald v. Walker,
In the case of Morrilton Waterworks Imp. Dist. v. Earl,
In the case of Tomlinson Brothers v. Hodges,
The case of Hodges v. Board of Improvement,
It is significant that Amendment No. 13, the submission of which was authorized at the 1919 session of the General Assembly, made no reference to the act of 1913, but expressly repealed the act of 1911 hereinbefore referred to. The new amendment made the granting of franchises subject to the referendum, as this is a matter of general concern to all the inhabitants of the town or city, but no language was used in the amendment which we think can be construed as subjecting improvement districts to a referendum of the electors generally. Had any such result been intended, we think it would have been indicated by a reference to them eo nomine, especially so when the provisions of 27 of article 19 of the Constitution on the subject are considered, of which we shall later have more to say.
We think the ordinances which the town and city councils are required to pass as the agents of the property owners in any improvement district cannot properly be called municipal legislation, nor do they come within the definition of the word "measure" appearing in the amendment. These councils are the mere agents selected by the General Assembly to make effective the right given property owners by 27 of article 19 of the Constitution. Eickhoff v. Street Imp. Dist. No. 11 of Argenta,
It is a matter of common knowledge that our I. and R. amendments were both largely patterned after those of the State of Oregon, and, this being true, the decision of the Supreme Court of that State in the case of Long v. Portland, 98 P. 1111, is entitled to special consideration.
The original I. and R. amendment of that State was amended to read as follows: "The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts."
The amendment quoted was construed by the Supreme Court of Oregon as referring to general municipal legislation, and it was held that it did not include transient orders concerning a particular person, and held that legislation of that character might be enacted without reference to the referendum power.
If appellees' contention that the amendment voted on known as No. 13 applies to ordinances creating improvement districts, were correct, our statute on the subject of creating such districts would have been rendered inoperative. If such ordinances are subject to the referendum provided by the amendment, the ordinance would not be effective for ninety days after the passage, while the statute requires that the petition signed by a majority in value of the property owners shall be filed within three months after the publication of the ordinance creating the district, and, if this petition cannot be validly filed until the period for referendum has expired, then it cannot be filed at all within the time limited by the statute. Section 5652, C. M. Digest. It would thus be necessary to reconstruct the entire municipal improvement district law, and, while the amendment might accomplish that result, it is not that this was intended without including improvement districts eo nomine in the amendment, as franchises were included. *1166
In the case of Hodges v. Dawdy,
In the construction, of amendments to the Constitution it was said in the Hodges v. Dawdy, supra, case that, "the amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in, force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it."
When that rule of construction is applied here, we conclude that the amendment did not intend to change in any way the provisions of 27 of article 19 of the Constitution, which reads as follows: "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."
Under this section the right to construct municipal improvements is given to the property owners upon whose property the burden of the expense will fall. Very frequently these improvements cover only a small portion of the city or town in which it is proposed to construct them. Yet, if these ordinances are subject to Amendment 13, any improvement, however small, would be subject to the approval of the electors, as such, of the entire city or town, whether they were property owners in the district or not.
The statutes enacted pursuant to 27 of article 19 provide, in effect, for both an initiative and a referendum. Ten property owners must initiate, and a majority must *1167 approve, but, under this section of the original Constitution, the consent of the property owners only is required.
We conclude therefore that the ordinances creating improvement districts are not "measures" as that word is defined in Amendment No. 13.
Appellees insist that, if the ordinances creating improvement districts are not treated as legislative enactments, all the statutes on the subject would fall, as constituting a taking of property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution. We do not agree with counsel in this contention. These ordinances emanate directly from statutes passed by the General Assembly of the State, which give full opportunity to a protesting landowner to be heard both on the question of the formation of the district at all and also upon the question of the extent to which, if any, the burden of the cost of the improvement may be imposed upon property owned by him.
The plans of the proposed improvement approved by the commissioners of the city show an estimated cost of $8,000, while the betterments assessed totaled only $7,999.68. It appears therefore that the estimated cost exceeds by 32 cents the betterments to result from the improvement. The protesting landowners insist that this excess renders the district void.
In answer to this contention it may be said that if the maxim, de minimis non curat lex, does not apply (Ganaway v. Street Imp. Dist. No. 32,
Upon the whole case, we conclude that the attack upon the validity of the district is without merit, and the *1168 decree of the court below invalidating the district will therefore be reversed, and the cause remanded with directions to dismiss the complaint for want of equity.