478 LAMBERT V. WHARF IMP. DIST. No. 1 [174 OF HELENA. LAMBERT V. WHARF IMPROVEMENT DISTRICT No. 1 OF HELENA. Opinion . delivered June 20, 1927. . MUNICIPAL CORP ORATIONS — IMPROVEMENT DISTRICTS TO CONSIRUCT WHARF.—Acts 1927, P . 172, authorizing improvement districts for constructing wharves to operate, manage, construct and lease improvements and incur indebtedness thereof, held not unconsti-. tutional as imposing a tax, in view of § 4, p. 174, providing that no taxeS on real property for the district shall be levied to pay for acts done under the statute. 2. CONSTITUTIONAL LAW—POWERS OF LE GISLATURE.—The Legislature is competent to do anything not prohibited by the Constitution, since the Constitution is not a grant of powers. 0. ..,O 'n N STITUTIONAL LAW— CONSTRUCTION OF S TATUTE.—All doubts as to the constitutionality of a statute must be resolved in favor of its validity. .
ARK.] LAMRERT '1/. WHARF IMP. DIST. NO. -1 479 OF HEIENAI 4.' MuNicIPAL :CORPORATIONS—WHARF ' IMPROVEMENT 1HSTRIGT:4ACts 1927, p. 17,2, authorizing improvement districts organized: for 'eon-structing wharves to operate, .manage,;„construct . and : lease improvements and incur indebtedness ' theiefor held not' un c , onsti-tutional delegation of poWer tO engage in iirivate business. 5. MUNICIPAL CORPORATIONS—WHARF IMPROVEMENT DISTRICTS.---, Cra-" Of wha.if inipiiiement district 1, of Helena,' lie/a valid ••' 'where 'the district was ofganized under' an' cirdinunce bn::petitiOn • • • of pfoperty owners in compliance 'with: Const. • art. '19, § 27, per-,.mittirig the General Assembly to authorize: assessments for local improv,ei , nents on consent of a , , majority .in; value of•propeAy . holders in locality iifected. , • ' Appeal from Phillips Chancer• Court ; L. Hutchins, Chancellor ; affirmed. , ' Moore, Waiker . Mbdre, for, appellant. Beve:ms & mtvot and J. G., Bwke„ f or .appe.11ee. • MEELAYVY;, J. Wharf Enprovement DiAriet , No. 1 'of the -City of : Helena 'is an iMprovement .district created by ordinance upon the , petitidni:of property : . owners ,in the citY of Helena, 'and was 'organied , "f or the 'purpose of -constructing a, wharf 'on . the. Mississippi),River and the neoessary . approachdsAhereto ; said wharf-to consist •of- ,adequate mooring 'places 'composed Of , stOne', 'concrete, wood ; or steel, located : apProximately at .;the :loot, 'of Arkansas Street, : on the MisSissippi River,' in , the. City- Of Helena ; and' a loading barge -of adequate, size; to . be moored at that point ; the -apprOaches thereto', , and storage places and other necessary - equipinent ; to :tonstruct ,a 'wharf-house containing two floo r s, a railroad' tra'ck on an incline frOm said wharf-house due east along the. south 'Side of Arkansas Street from the Said 'wharf-house *to the said loading barge' : and vharf on , the Mississippi River ; also a roadway to be :constructed upon Arkansas Street from the' west line of Natchez Street to the east line of said wharf-holise ; also' . a ., railroad track from Elm Stteet to said wharf-house ; 'together with all- necessary cars, cables, hoists and other freight-handling , and 'loading • machinery ' necessary to ,make said Wharf and its , appurtenandes,' complete, , -•
480 LAMBERT V. WHARF IMP. DIST. No. 1 [174
OF HELENA. The improvement district so created was held to be valid, in Solomon v. Wharf Improvement Di,st. No. 1, 145 Ark. 126, 223 S. W. 385. The Arkansas Legislature, in 1927, passed Act No. 61, which is as follows : " Section 1.. Tbat boards of improvement in munie-ipal improvement districts now existing or hereafter organized in this State for the purpose of constructing wharves for the transfer and interchange of river and rail freight are hereby charged with the duty to operate, manage and control the said improvements. Such boards shall also have the power to lease the improvements, in whole or in part, or otherwise contract for the operatiOn of such improvement, upon such terms as may be deemed by them advisable, and have Power to lease from others such equipment as, in the judgment of said board, may be deemed advisable. Such board shall collect moneys due such improvement districts for tolls, wharfage, storage, elevation, rentals and all moneys other than moneys received from collection of the assessment of benefits, and shall keep an accurate and separate account thereof. Such board of improvement shall have control of the disbursement of ' such moneys, and may therefrom pay costs of operation, maintenance, repairs, replacements, renewals, improvements, depreciation or bonded or other indebtedness, in such times and in such manner as the said board may deem to the best interests of the owners of real property in the district. " Section 2. In addition to the powers now vested by law _in boards of improvement, boards of improvement of improvement districts described in § 1 of this act shall have power to construct and to borrow money with which to construct new and additional improvements necessary, convenient or required for transfer or interchange of any and all commodities. Such board of improvement may issue the notes, bonds or other evidences of indebtedness of such district to evidence such indebtedness, which obligations shall be negotiable, although payable only from a certain fmid, and may pledge net revenues
ARK.] LAMB:ERT (v. WHARF IMP; DIST. NO. 1 481
OF HELENA. arising from -the operation .of such new, and ;additional, imprOvements, and mortgage . such new, and additional improvements to secure the repayment of such' borrowed money and interest thereon. ; ",Section 3. Boards of improvement . of .the class • described in § 1 of this act shall have , power to acquire, by lease: or purchase, real estate needed or convenient in the public service rendered by such improvement district power to grant rights-of-way over any and all,properties owned by sUch district, and power to grant landing rights to persons engaged in water transportation. " Section 4. No indebtedness, 'obligation or liability, or the interest thereon, created or incurred under the provisions of this act, shall at any time be secured or paid by or from any special assessment upon or taxation against the real property of any such improvement district. - • Section 5. That all contracts heretofore made by any board of improvement of the class described- in ,1 of this act, not in conflict with the terms of this act, be and the same are hereby confirmed, approved and ratified. " Section 6. If any clause or section of this act shall be held to be unconstitutional, it shall not invalidate the remainder thereof, but the balance of this act shall remain in full force and effect. " Section 7. Agriculture and industry of the State will be aided and assisted by the purposes herein contained, and therefore an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, it shall take effect and be in force , from and after its passage." - • The appellant, plaintiff below, brought this suit attacking the validity of Act No. 61 for the following reasons : (1) That under the Constitution of the State of Arkansas the Legislature is inhibited from delegating the powers undertaken to be delegated by said •ct to local improvement districts. (2) That the said act is and was unconstitutional in that it violates . , the funda-
482 LAMBERT V. WHARF IMP: DIST. No. 1 [174
OF HEtENA: mental and underlying principles of our form of Govern-s nient. (3) That even under the provisions of said -act the 'defendants haVe no power or authority- to enter into the several contracts hereinabove set out. (4) 'That the said contemplated improvement is not a public improvement; but is an improvement which is •related solely in its operation and effect to private business and private interests. (5) That the operation of a grain elevator is nOt a public improvement but is, from its very nature, a private business. (6) That generally the making of said contracts is ultra vires, improper, and an invasion of public agencies into the field of private affairs. "Plaintiff alleges- that, unless enjoined by order of this'honorable court, the defendants will execute the contracts aforesaid, or some of the same, whereby the rights of third persons might attach, to the injury of plaintiff's rights." . We deem it unnecessary to set out -the testimony taken in . this case, because the attack made is 'on the validity of the act and the power of the Legislature to pass the act. And the appellant's firSt contention is that this case is controlled by the 'decision in Lipscomb y.. Lenov, 469 Ark. 610, 276 S. W. 367. *That case construed the act passed by the Legislature in 1923 anthorizing the formation of an improvement district for the building of' an auditorium for public meetings, and, -while the 'court stated that it would be a most desirable improvement, yet' it was plainly for the benefit of the whole community, and that it could not and did not confer anV peculiar or special benefit upon the real estate assessed and taxed . for its construction and 'maintenance. : That act provided for the assessment of benefits and for the taxing of real estate, and it was held in that case that the act was void, and, among other things, we said: "Even if it could be said with any plau§ibility -that the 'building of an auditorium directly and specially benefited the real estate situated within the city of Little' Rock, it would strain the wildest imagination to the
\ , 'ARK.] LAMRERT V. .WHARF IMP. DIST. No. 1 483 .OF HELENA. breaking point to• conceive how such an improvement would be of any direct or special benefit to the real estate situated in Fourche mountains or in Fourche bottoms or \ to any other real proPerty lying in those country portions of the township included in the .district—those beyond the limits of the city of Little Rock." . It must be remembered that these lands were to ,be taxed for the purpose of • securing money to build the auditorium; and taxed on the theory that these lands i. ! would be benefited. Of course it was . perfectly plain that the lands mentioned by the court in that case could receive no benefit whatever from • he building of an 1 auditoriuM in the city of Little Rock, and, since • real . .estate can be taxed for local improvements only on the theory that the benefits to the land were equal to or greater than the tax required to be paid on the land, and since it was manifest that these lands could not be bene-K fited at all, the court properly held that the lands not : benefited could not be taxed for the purpose of making '.■ th • e Improvement. It was also properly held that 'the ' improvement was • a. public improvement and did not benefit the lands sought to be taxed specially. • It is 'conceded that act No. 61 provides that no taxes shall be levied to paY for the grain elevator, but it is contended in legal principle that this is immaterial, the appellant contending that, if the Legislature has a right to create an improvement from revenues, then it . also has the right to Create one to 'be paid from taxatien on real 'estate. The improvement district in this case was organized, 'and this court has already held that it was valid. • Section 4 of act 61 provides : "No indebtedness, obligation or liability, or the interest thereon, created or incurred. under the provisions of this act, shall at any time be secured or paid by or from any special assessment upon or taxation against the real property of any • •such • improvement district." , It will be 'seen that it is ex p ressly provided in the act that no indebtedness, no obligation, no liability or interest thereon, which may be created under the provi-
.■■•• 484 LAMB.ERT V. WHARF IMP. DIST. No. 1 [174
OF HELENA. sions of this act, shall be paid from assessments or taxa-tion- on the real property. The act therefore is not void because of any tax or assessment on real property, and 1 we know of , no constitutional provision that would prohibit the Legislature from passing the act in question. It has been repeatedly held by this court that the Constitution is not a grant of powers, and that the Legislature may do anything not prohibited by the Constitution. This court ha s also many times held that all doubts as to •the constitutionality of a statute must be resolved in favor of the statute. It has been said by this court that, in determining whether -in act is constitutional, we should rook to see, not whether the power is given, but whether in expressed terms or by necessary implication it is forbidden. This court has said: "Then, when we come to pass upon the constitution- is ality of an act of the Legislature, we must remember A that a State Constitution is not a. grant of enumerated powers. Its 'object is to outline the departments of the Government and apportion its various powers among them. Having vested the lawmaking powers in the Legislature, it possesses that power in an absolute and unlimited degree, unless the restriction is found in the Constitution itself." State v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L. R. A. 153. - Again it has been said: "T t is not to be doubted that the Legislature has the power to make the written laws of the State, unless it is expressly or by neomssary implication prohibited from so doing by . the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare." McClure v. Topf cf Wright, 112 Ark. 342, 166 S. W. 174. The appellant has not called our attention to any particular provision of the Constitution which he claims is violated by the act and to no case holding that a similar act is violative of the Constitution. And, unless there eould be found some provision of the Constitution that
4#1C -7] LAMBERT V. WHARF Im p. DIST. No. 1 485 OF HELENA. either expressly or by implication prohibits the passage of an act like this one, then the Legislature had the povier to pass the act, because, as has'been said, the Constitution of the State is not a, grant or an enumeration of the powers vested in the legislative departnient, but is a limitation upon the exercise of such powers, and the Legislature can exercise all . powers not expressly or by fair implication forbidden by the Constitution. The only limitation contained in the Constitution iiith'reference to improvement districts in cities and , towns is as follows f` Nothing in this Constitution shall be so constrned 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 the majority, in value of the property holders owning property adjoining the locality to be affected. But such assessments I shall be dd valbrem' and unifOrm." It . was necessary to comply with this provision of the Constitution in the organization of the district. This provision was complied with, and the act was held valid. The only thing this act seeks to do-is to give the district, which is already formed, additional authority, but it does not in any way seek to tax the people, and we therefore think that the Legislature had the power to pass the act. We deem it unnecessary to discuss all the authorities 'presented by hp'pellee, but we have readhed the conclusion that the aet does . itot violate ati . 7 provision of the Constitution, and the case is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.