Armour v. City of Fort Smith , 117 Ark. 214 ( 1915 )

■Smith, J.,

(after stating the facts). It is insisted that the statute confers no authority for the organization of an improvement district for the purpose of laying a system of pipes, mains and hydrants where the plans of such district contain no provision for a supply of water, except to obtain this supply through an entirely independent district. It is said that the decision of this court in the case of Sembler v. Water & Light Improvement District, 109 Ark. 90, gives support to that position. We quote from the decision in that case as follows:

“Now, it will be observed that the new district was ■organized solely for the purpose of taking over and reconstructing and extending the water and light systems owned by the old district, and, since we find no authority for taking over the old property, the project must fail because the organization is to do a thing which the statute does not authorize. If the new organization -should proceed with the reconstruction and extension of the old water and light systems, there would necessarily arise a -conflict in the question of ownership and control between the two districts, the -old district not being extinguished, nor its rights to the'property lost by the organization -of the new district. ’ ’

In holding that the authority had not been conferred 'by the statute for on-e improvement district to take over the property of another, it was there said:

“But we -are unable to find any authority in the statute for such a proceeding as the cession of the property of th-e -old district to the new. The city council has no authority to cede the property or to transfer the title from the old district to the new. ’ ’

In the instant cas-e, however, no attempt is being made to cede the property of -one district to another nor to give one district any control or -authority over the property of the other. Districts 1 -and 2 are separate entities, and it is only proposed to permit District No. 1 to furnish the supply -of water to District No. 2.

Upon the acquisition of the waterworks by the improvement district, it became the duty of the -city to operate the plant, and the -city immediately assumed this duty, and has -since been discharging it. Section 5675, of Kirby’s Digest. In speaking -of the duty of the cities under this -section, 5675, in the case of Browne v. Bentonville, 94 Ark. 80, it was said:

“The maintenance and operation -of the waterworks under the above section -are governmental functions, in the performance -of which the city -council must necessarily be invested with judgment -and discretion. Conceding that they have the power, by implication, to make additions and extensions- to the system as it was -constructed by the commissioners, it is a power to be exercised at the discretion of the council. The council, for instance, in each ca-s-e must determine whether the necessity exists for the extension of a main to a particular territory, and what size main is needed, and whether the financial condition of the city will warrant the expenditure. The city fathers in these matters act in a legislative or governmental capacity for the -city, and their discretion, exercised in good faith,' can not be controlled by mandatory injunction.”

It is argued that the city has neither the power nor the authority to permit District No. 2 to make physical connection with the mains of District No. 1, thereby securing from that district the necessary supply of water. It is argued that this is so because the power conferred upon cities in the operation of the improvements constructed by improvement districts must be strictly construed, and that no authority for this action is conferred by any statute. Section 5675 of Kirby’s Digest, reads as follows:

“Sec. 5675. In case of the construction of waterworks, or gas or electric light works, by any improvement district or districts, the city or town council, after such works are constructed, shall have full power and authority to operate and maintain the same instead of the improvement district commissioners, and said city or town council may supply water and light to private consumers and make and collect uniform 'charges for such service, and apply the income therefrom to the payment of operating expenses and maintenance of such works.”

This section expressly authorizes the sale of water to private consumers, but does not contain any limitation that such sales shall be only to consumers residing within the limits of the district. The operation of a water plant necessarily involves more or less expense, and the city, not the improvement district, is responsible for these operating expenses. Improvement District No. 1 of Wynne v. Brown, 86 Ark. 61. The responsibility for the successful operation of the plant of this District No. 1 depends upon the city, and as the property of the district can not be assessed to pay operating expenses, these expenses must be derived from consumers, whether lying within or without the improvement district. The agreed statement of facts shows that District No. 1 has water in excess of its own requirements, and this excess is a commodity, therefore, which it may sell, and the proceeds of this sale he applied to the maintenance and operation of the plant. Indeed, more than that has been accomplished, as appears from the agreed statement of facts, as the proceeds of the sale of the water have been sufficient, not only to operate the plant, 'but to relieve the owners of the property within Improvement District No. 1 of the burden of paying .assessments levied .against such property.

When the improvement -contemplated under the plans of District No. 2 shall have been completed, it will then be as much the duty of the city of Fort Smith to operate that plant as it is to operate the waterworks owned by District No. 1, and as was said in the cases from which we have quoted, these are governmental functions which involve questions of policy to be decided by the administrative officers of the city. Necessarily there are limitations upon the authority of these officers. For instance, no. such -use of the property of District No. 1 could be made, in the operation of another district, as would impair the utility of the first district, and there would be no right to pursue any policy which would require the property owners in District No. 1 to incur any expense in connection with their own plant made necessary by the construction of .another system. However, no such question has arisen here, for the physical connection of the mains of District No. 2 with those of District No. 1, not only will not add to the burdens of the property owners of District No. 1, but it is shown that the effect of this action is to lighten their burdens.

It is also insisted that the construction of Improvement District No. 2 is not authorized because its source of supply of water may not always be .assured, inasmuch as some future .administration in the city of Fort Smith may decide not to permit District No 2 to obtain its water from the mains of District No. 1. That, too, is a question which need not now be considered, as no such condition has arisen, and the probability of its arising is merely ■speculative. This same question was raised in the case of Sembler v. Water District, supra. In that case it was urged that an ordinance creating a sewerage district was void for the reason that no provision was made for the necessary water, but upon that question it was there said:

“Now, as to suit No. 3, relating to the sewer improvement district, we discover no reason why that district should.be invalidated and further proceedings thereunder enjoined.

“The only ground urged is that it covers territory not now covered by the old water system, and that sewers without water would 'be no benefit.

“The theory is correct,"but 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 meáns 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. The rnty council had no authority to abolish this sewer district. Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4.”

It follows from what we have said that the decree of the court below should be affirmed, and it is so ordered.