Mullins v. Commissioners of Bridge Improvement District No. 2 , 114 Ark. 324 ( 1914 )

Smith, J.,

(after stating the facts). The facts in the present case are similar to.those in the former ease of Mullins v. Mayor and Board of Aldermen, above cited, except that in that case it was the purpose of the improvement district to assist Pulaski County in constructing a bridge across the Arkansas River connecting the cities of Argenta and Little Rock, whereas, in the present case it is the purpose of the improvement district to construct that portion of the bridge which lies within the city of Little Rock, that is, to a point in the center of the Arkansas River. We think that, to a large extent; the reasoning of the former ease is applicable to the facts of the present case. In the former case, it was held that an improvement district could not be lawfully formed to aid Pulaski County to build this bridge across the Arkansas River, because, among other reasons, the control of the construction of the bridge would be "in others than the commissioners of the improvement district, whereas, the law required the control of improvements made by municipal improvement districts to be in the commissioners of the district, and it was there said:

“The law does not contemplate, and there can not be two boards of improvement or commissioners in control of the construction of the one improvement, and the county court is given the power to construct bridges of this kind, and, in exercising such power, when it undertakes it, would necessarily do so to the exclusion of any other agency than that provided for under the law. It may be desirable to have a free bridge constructed under the terms’ proposed in the ordinance, and that it could be secured for less cost to the district by this contribution by it of the designated sum to the improvement and in aid of the county, but the law makes no provision whatever for a local improvement district aiding the county in the construction of such an improvement.”

And, having mentioned the fact that an improvement district might receive contributions from the county and city to a proposed improvement for the purpose of reducing the cost of the improvement to the limited 20 per cent of the value of the real property in the district, it was there further said:

“Although an improvement district may accept such contributions, there is no power given by law to such a district to levy assessments and make contributions to aid other agencies in the making of the improvement, notwithstanding it could thus secure a desired local improvement at a much less expense to the property owners than would be required if it was constructed by the district itself. ”

If we were correct in so holding, that decision is apparently conclusive of the present case.

To avoid the effect of that decision, the ordinance creating the improvement district under consideration provides that these commissioners shall not undertake the construction of their half of the bridge until suitable and satisfactory arrangements have been made for the completion of the other half by either the county of Pulaski or the city of Argenta, and it is said that the effect of this provision is to provide for the construction of an improvement lying wholly within the* district. To sustain this view, we are cited to cases upholding the establishment of sewerage districts where no adequate outlet facilities had been afforded in the plans of the sewerage districts themselves and counsel for appellees cite and rely upon the decision of this court in the case of Sembler v. Water & Light Improvement District, 109 Ark. 90. In that case a sewerage district was established without the necessary arrangements having been made to furnish water for flushing it, and the district was attacked upon that as well as upon other grounds. Discussing that question, it was there said:

* * It does not follow that the owners may not provide for sewers in anticipation of getting a supply of water, and the fact that the present scheme for supplying water in the additional territory failed, affords no reason why the property owners, if they desire to improve their property by constructing sewers, should not be allowed to proceed in that direction. Other means may be provided, either by the city or by the formation of an independent and separate improvement district, to furnish water in that locality, and, in anticipation of that, property owners have the right to organize a district to construct sewers.”

But we do not think that case announces the principle which should control here. The sewer district was a complete entity, the construction of which was wholly within the control of the commissioners of that district. They had the authority and were under the duty of exeouting the plans for the construction of this improvement, and there was no division of their authority, no necessity to conform to the requirements, of the commissioners of any other sewerage district in the perfection of their plans and in their execution. Here it must he conceded that the construction of a bridge to the middle of the river would be a useless and futile thing to do and not such an improvement as is contemplated by the law. Ferguson v. McLain, 113 Arfo. 193; 168 S. W. 127.

(1-2) But appellees say that concession is without effect here for the reason that the very ordinance under which they seek to proceed expressly limits their right to construct their portion of the improvement upon the condition that the remainder thereof shall be provided for, either by Pulaski County or the city of Argenta. In its practical effect, we think this is an evasion of our former decision, and the Sembler case does not control. If this is the county’s bridge, the commissioners appointed by the county judge, together with that officer, would necessarily have the control of the improvement. Section 549, Kirby’s Digest, and Mullins v. Mayor, etc., supra. And if the construction of the remaining half should be undertaken by an improvement district within the city of Argenta, rather than by Pulaski County, the 'Construction of that half would necessarily be exclusively under the control and supervision of the commissioners of that district. - It might be possible for these different agencies to co-operate harmoniously in the construction of this improvement, so that, when their joint labors were completed, a bridge would be constructed, but while this is possible, it is not certain. Even if satisfactory plans should be prepared and accepted, many questions of detail would arise, which would require conferences and concessions, and if these conferences were not held and concessions made, a condition would arise which the law has not contemplated nor provided for. Such an improvement as a bridge must be situated wholly within the improvement district, and, in our opinion, this ordinance seeks to do indirectly what it is not permitted to do directly, and that is to aid in the construction of this bridge.

For the reasons stated, the decree of the court below will be reversed and the cause will be remanded, with directions to sustain the demurrer to the answer.