IRK.] PLEDGER V. SOLTZ. 1125 . PLEDGER V. SOLTZ. Opinion delivered December 21, 1925. 1. MUNICIPAL CORPORATIONS—ANNEXATION To IMPROVEMENT DISTRICT—PETITION.—A petition for annexation of territory to a pav-, ing district, created under , Crawford & Moses' Dig., § 5666: as amended by acts 1921, p. 416, need not, under § 5733, specify the limitation on the cost of the improvement. a MUNICIPAL CORPORATIONS—ANNEXATION TO IMPROVEMENT' DISTRICT—LIMITATION OF COST.—On the annexation of territory to a 'street improvement district, the cost of the additional improvement, under Crawford & Moses' Dig., § 5733, must be limited to a cost proportionate to that of the original improvement, but ' such limitation need not be expressed in the petition for annexation. 3. MUNICIPAL CORPORATION—COST OF IMPROVEMENT CONSTRucTION OF ACT.—Acts 1925, p. 548, limiting the cost of improvements, does not apply to annexation of territory to a municipal improvement district, but to the formation of the original district, and has no retroactive application where the original dastrict to which annexation was made had been formed prior to the effective date • of the act of 1925. . 4. , MUNICIPAL CORPORATIONS—COST OF IMPROVEMENT LIMITATION.— On the annexation of territory to a street improvement district, the permissible cost of the new improvement is not controlled by the combined cost of the entire improvement, bjit the cost of the new improvement is limited in the same proportion to the assessed value of the new territory to be added as :the proportionate cost of the original improvement bore to the ' assessed value of the property in the original district. . Appeal from Jefferson Chancery Court ; H. R. Luccts, Chancellor ; affirmed. Coy M. Nixon, for appellant. Coleman & Gantt, for appellee. MCCULLOCH, C. J. Appellant is the owner of real property in the city of Pine Bluff, situated in territory. sought to be annexed to a street improvement 'district; and he instituted this.action to prevent the annexation on the ground• that . ,the statute regulating the proceedings had not been complied with. Paving District No. 84 of the city of Pine Bluff was duly formed by an ordinance of the' city council on July.
• 1.126 PLEDGER V..ISOLT [.169 21, 1924, and the organiation•was :completed, and the ?;, ordinance. finally ]eyying tho Assessment : to pay for the improvement was passed by the City ;council on March 16'; 1925 on: • ,:ruly 20; 1925; the Prpceeding , to ahnei''coni ti66.ufs .filin'W•itliftlie city council Of , ;the, petition, of; a ,majorjiy•ii v41:11.e. of ; t' ile, Teal property in the territory ;sought.•to-,be•.:annexed:•;:;Pursuant. to; this . ; petition;;• an ordinance . .was 'passed by .. the city , eciiincil. authotizing the ;annexation; and Subsequently aPPellhnt insOtuted.thiS' , aCtiOn s agaiti'st the ;cOininiSSiOners ofthe..oiisti7iCt , fO,restrain!further . proceedings., , the 6.9urt, sustained, a demurierto .0-ie complaint rand. dismissed the action, from which decree an appeal has beempvosecuted to•this court. • • ap011aiit,.ic oat tye f,roC.6edings for annexing territory are -iyold 'for, ;the, reason: that the petition failed to:. specify lany;climitation,lupon; the ;•max-imiuncoStof 'the iniprbvement. • : This •contention•;calls for a construction of our statute on the sub P a 'to t detetinine whether'tir not the' ek-PreSSion :• Of 'SiiCh a liniitatidn' in the petition . 0 . , propertowners•isrequir,ed...' The' original , statute, in-Tegard ,. til -the' c Torination of mmimcipal iMprO'velnent MO'ses' Dige'st; shall be undertaken,whicir alone, w;i11,exceed, in cost t Wenty per centum of , the value of the real 'property in such dis-triet a:s shown b'k the' 'last ConntY ASS'eSsinent. i ,;1 The General Assembly of 1921 (Acts of 1921 9 ;P:410 :aniended the statute referred to ala6fe'bYd' c i .. ? kw; statife,.. \Odell.' contained the following proVision: • • V • • ;', ,•'••". ; V V ; " • The . petition for §-acif-imp'rovement signed by a majOrity if)! vabie Of the OiNTD6TS: of :real propeity'in • the Aig4 tfia r shAll; spOcify 'what Percentage' Of the;Yalu of the real property in 'no' district, ; as. ;Shown •by• ;the; lag _ county ;ag: sessinent; the` said 'finprovement : shall. nbt 'eceed in cost' and any improvement may be ;underIaken 'which 'in Cost does ' not 'exceed the verdentake' of ihe'valne of ; the' real proPerty' in the , diStrict 'specified in • the petitiOnt • But,th
.Amc.] 11:2,7 determining; whether . or not .said; improvement will•in ;cost exceed the percentage of the value of the real property in said district as shown by , the last:county assessment, interest On berrOwed MOney . Shall, 'not be ConiPuted Of the .1 'a , s ,!t , p , art • .. The. statute j* quoted was' in .' fOrce at tlie tinie ,of tfie formatipii of . Paying ;District No...8 . 4 of Pine Bluff, and ,in the petition , of property :owners . it , ;Was Specified ; th;at the coSt : of the . iniprO yertierit • hoUld: not exCeed 100 per centnm . of.the ! value of , the , real . Property . inthe. district as shown. , by tie1t preced , ing countY . assessment.; , There is, no ;question raised _in , ,the ;present case, , as to. the th , e; organiption , ,of , the . district, , . :General, s,s , embly , of 1925,enated another :statute ,amending. Ole act . of 1921, sypra, ,(Acts 548.), and . this statute contained ,the. following provision : ." The: petition . forisuChimProvement Signed by a majority;in value of 'the. oWners " .of: reat property,in theidis-trictishalt specifY what percentage. of the ,value, of the real 'property in the district,. as Slio'Wn by. the . 'last ,county. asSessment; the said ;iniprevement shall. not 'exeeed in cost; provided; nd. ; single improvement .shl.1.-ibe undertaken which -alone 'will exceed . in' Cost , fifty Per centiim ,,of the value 'of the re61 piTopefty iri such district. as shown by -the last 'county ; as sessinent; 'b r ut, int determining' what be' fifty pef ceiiturh! Of:the Arable :of the- real 'Property in the' fdistrict i interest upon money' borr6wed shall:not be cOmPuted aS , part . 6f 'the cost. : • :Provided;. further,' an ini-provement mar be .. made which 'doe•S ! not• exceed' 100' per cenU of the aSsessed; value determined -. as above -if .75:-per cent oft fthe ProPertY, owner s,..;in in fsaid district petition. therefOr:?,' 7 . "!i • ; Thi -statute did • not contain' an emergeney ;clause, therefore didnOt go info effect Until ninety' clayS &fter.the adjoUrnment 'of the -Legislature: The : Atatute now , in force regulating the method of procedure:in annexing contiguous territory to an improvement district . is, the act ,of i pip (fteneral Acts . 1919,. p . ...218), brought„forward as §, 5733,
1128 PLEDGER v. I SOLTZ. [169 CraWford & Moses' Digest. The statute reads as follows : • " Section 5733. When persons claiming to be a majority in value of the owners of real prop-,erty in any territory contiguous to any . improveMent district organized in any city or towri desire that staid territory shall be annexed to such improvement dis-tiict, they may present their petition in writing to the city or town council, describing the territory to be annexed, and the character of improvement desired. There'- upon the city or town council shall direct the clerk or recorder to publish for two weeks, in some newspaper issued and having a general circUlation in the county where such city or town is situated, a notice calling upon the property owners to appear before said cOuncil on a day named, and show cause for or , against such annexation. On the day named in said notice, the city or town council shall hear all persons who desire to .be hearcL on the question whether a majority in value of the owners of real property in the . territory sought to be annexed have signed, such petition, and its findings shall have all the force and effect of a judgment, and shall be ccinclusive, unless, within thirty days thereafter, suit is brought in the chancery court to review it.. The finding of the council 'shall be expressed in an ordinance in case it is in favor of the:petitioners, and in that event the territory sought to be annexed shall become a part of the improvement district, and the improvements petitioned for shall be made by the commissioners. The commissioners shall make the assessment for said improvement on the territory annexed under the provision of this, act on the same basis as if said territory was included in the original district. If petitioned for, the improvement in the territory annexed may be of different material or of a different method of construction, from that in the original district." • It will be observed that the statute regulating annexation proceedings does . not contain any express requirement that a limitation upon the cost of the additional
PLEDGER V. SOLTZ. .1129 improvement must be specified by the property owners in their petition. The only express requirement is that "the character of the improvement , desired" , raust be stated in the petition, and there is a requirement by necessary implication that the territory to be annexed must be specified. There is no requirement, however, in exPress language or by necessary implication that the petition must. set , forth a limitation upon the cost of ,the improvement. There is nothing in the Constitution of the State Which hxeS any limitation upon the cost of the imprOvement, except that the cost shall not exceed the benefits. Since the LegislatUre has not seen fitto enact a law Containing any requirement for a t specifiCation of a w6 cannot read such a 'requiiemenf into the Statute. It does not follow, hoWever, that the poiver to annex is unrestricted. While it is unnecessary Tor the petition for annexation to specify the limitation upon the Cost, we interpret the statute itself to Meari that the cost of the additional improvement shall be liMited to the proportionate cost of the original iMprovement. This limitation' iS expressed in the statute itSelf,. and need not be expresSed in the petition of the property owners,.. The statute . (Crawford & Moses' Digest, § 5733); provides that the assessments on the ' annexed territory shall be made " en the same basis as if said territory was included in the original' district." this m.eans that the proportionate cost Shall be the same as in the original dis.trici, that is to say, the Cest of the impro'vement IShall be in the Same Proportion to the assessed valuation as the . cost .of the improvement in the original district is to the assessed valuation of the property in that district. Otherwise the assessments 'on the annexed 'territory woUld net be "on the same basis as if said territory was included in the Original district." We'have decided in Wh i' te v. Loughborough; 125 Ark. 57, Bahlas v. Bloom, 154 Ark. 349, and Miller v. Seymour, 156 Ark. 273, that the annexation of territory "is tantamount to the creation of a new district without the impo g -tion of new burdens onthe original district, or the assump
1130 PLEDOER V. 'SOLTZ. [169 . . tien of any burdens on the annexed territory forthe-CeSt 'of 'the original impreVement." But we held • in P o Street Improvement Di,§triet,159 Ark. 569, that;trider'the anneXatiOn statilfe,',3; uprq, the' additional territorY and 'the propOsed improVernent 'are' bronght Within the Operation of the law the • sanie as if the te , rritory h • ad , o . riginally been . • embraCed in the distriet. In other wordS, our decisions iii tbose cases were that under the annexation statute the additional territory is , brought into the original, district for the Construction of the improVement and the levying of.' as , sessraents, the same as if theiterritory had originally been a . part,pf ihe district, but that, so far as imposing the bUrden. of , ;the' expel* Of , tli 9 in1131:OveMent,,pe,•,an,- nexation is tantamount to the Creation of a new dis,trict without the mposition of , new, burdens on. the primal district, or , the assiimPtion of any burdens ,. on thp an'nexed torritory for the cost of the, original improvement. We think that , it f ollows from interpretation of•the, stat; ute in those decisions that the annexation . Of the territory comes 'within the : :re g trietions, specified in theoriginal Petition of the property, 'Owners in , creating the district; and ; that it is-unnecessary fOr: a, new speccation , ,to ,be made in the petition JO the anneXation. , It beCOnles.the dity of the . commissioners under the law io ascertain the Proportionate cost of :the 'original . improvement . and to limit.the cost Of the •ew improvement to the , same propor-, tion—not exceeding , the; same *portion., to , the cOunty assessment of the property in the annexed territory , for the year next preceding the formation of , the ,. original district. , • . It is next contended that the annexation is controlled by the actof 1925, supra, and that the.proportionate cost must be that of the combined improvement in its ;relation to the entire territory,`both :the original district' and the annexatiom . . In the first place; we think that'dounsel are mistaken in the contention, that the act of'1925; sugra, has any 'bearing upon, these proceedings. The statute has nothing to do with the question of aimexation, but
ARK.;] PLEDGER v. ISoLiz.. 1131 merely changes the law as , to the 'formation of an original district, and, as the original district in this instance had been formed under prior statutes, the new stat-ate is withOnt effect.' ' The statute - iS not retroactive. The 'annexation . statute, ; tinder onr ' interpretation, Aces theliniitation Of eost the Sarne as' that in , the original .district, therefore „the . act ,of. ,1925 .could have no bearing npon these proceedings. Nor do we . agree with counsel as to the other contention that, in deterMining 'the proportionate-cost; the combined cost o'f :the entire' iMkoveinent must be &niSidered in its relation to the assessed value of the proPert3i,in the entire terri-tororiginal,and added. , All that the annexation statute requires is that the . new. ,assessment of benefits on the added territory' must be made on the Same haSis aS the aSseSsments in the Original territory, 'and this is frillY- ac-eonibli . Shed by liraiting the co'st Of 'the new iiriproVeMent in the same proportion to the , assessed value of the new territorSi to' he added; . the same aS the : proflor'tionate cost, of the origirial : iMproVeM!ent to the propertyin the original district. — If 'we 'Constriie the statiite to` niedn' that 'in arriving at this : proportion the'cOst of the bombinedimprove-m:eiit iS:to be conSidered, thenthe basis 'of assessnient the'new''district :Wbuld net he the' Same as that , iii the old diStriet heOause 'the assessineptS in the' old , ' diStrief already been'inade on a basis of the Proportion' of the cost of the original . finprovenient 't'C; the aSS'essed Valne 'of the property in the -originial district. It' iS shoWn in'the kes;- ent case, liciwever, that the esti/hated cost of theadditi:orial imprOVement Will 'not 'eX'c'ebd fifty Per' Centum Of' the"as.- sesSed Value of the territorY tO be anneXed:'' Therefbre, if the' aa 'of 1925, s4pr ' a, had' anY aPpliCatiOn i it' 'WO ill& not affect the validity 'Of the preSent 'proCeedingS. 1. I OUr 'OnchiSion is tii-t` tfle'ohcety edurt wa`S'.ddireCt in'snstaining a den:airier,' and the, decree is 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.