450 IqEAL V. CITY, OF MORRILTON. , • [192 Crr y . OF .MORRILTPN; i 4 1 4 : 305 • • , Opininn delive 'red.M a' ye h . . 23, 1936, • MUNICIPAL CORPORATIONS. —SinCe municipalities have and maY exercise .such toWers only as are delegated .to them . in .the Constitution . and statutes, an ordinance providing for . "construction , and mainte . nanc , e'' of a. hospiial:when the power delegated .was . ;to' PurChase sites for, Co ' 'astruction of, and equipment of * * * .hospitali; iS void as'it does mit come Within the Powei delegated. Const Amd. No: 13. MUNICIPAL CORPORAT ION $.7 ---The .,words -"equipment!' .and "Maintenance" not being synonymous, election ballot prepared for vot:- ing on "construction and equipment" of city hospital under an • ordinance providing for election on• f‘construction 'and: maintenance" of , hospital was of no .effect as to "equipment," .and all • • subsequent proceedings were invalid. , • Appeal from Conway Chancery Court ;.J. B. Ward, Chancellor; reversed. •. • • Harry B. Colay, for'appelkint. E: A..Williams and , Strait &-Strait, for 'appellees.... • BAKER, J. This . .suit filed by appellant•Neal;.as a citizen and, 'taxpa3 ; er of the city of . Morrilton, . was brought 'to: enjoin the City Of Morrilton and•its officers .from . making sale . and deliVery to • the United'StateS- Government . of bondS issued for the purpose of procuring-a:municipal hospital in said : city: . The •appellant• contends . that ordi-
ARK.] NEAL V. CITY OF MORRILTON,. 451 mince No: .400, passed by fhe council:of .the city . of Mor-, rilton,, is , void; and that..the :proPeedingS thereunder, in contempla tion of the . issuance and:sale of ,said bonds, are, also void:- To the, complaint:filed in this ,OaSe, a 'demurrer was sustained and the, complaint . .was. dismiSsed.. The ap-. peat thetef ore :presents to. us the question. of sufficiency. of. the, complaint. Only . the :pertinent pottiohs -of the'. corn-, plaint will be 'set ont.,for discussion.. • . • , .The. city, of .:Morrilton, as , 4 cit y . ot . the second, plass, entered . into. a loan and . grant .agreementi with : the 11',. acting by .and through .the .Federal Emergency Adminis7: tration . bf Pnblic Works,, under the. terms of -which Agreement the United . States . agreed to purchase..$55,000 im bonds :of the, pity to : . be, .issued ;pursuant to amendment. No., 13 Jo., the, Constitution .. of Arkansas,. and . to .inake .a; grant to tlie city. of an Amount not. to. exceed $20,000, the , proceeds of said loan, and grant to be used for the icon-. sl truction and equipment of a municipal . hospital,. the,cost of eqnipthent;tO he Paid . Solely from, , said . 'grant' . The plaintiff ',alleged thai . -VAiious Proceedings had been cbra,:. 044 whereby : the 'bonds '.Of the city of ' MOrrilten were tentativelY 'sOld 'to the , U. 'S. 'A : ' Contraets had'heen Jet. for the con4,rfietiOn and eqUipment Of a ,munieiPal hOs-' pital, subject to the approval of the acting through : the W:. A. ; -that an am-dal levy had :been made by the city:of ,Morrilton; duly certified to theaquorum cburt of Conway • CoUnty, and by. it Jevied. and ordered. eXtended upon the ,tAx. hooks .upon the-Teal And. personal' property-within the, corpora te ; limits..of the city .of ri Iton 'Plaintiff 'also. alleged that the ' . eliactruent ,-and sage' of : any ordiithnce , proViding for an election, and the. prodeedingS, had ,subSdquent thereto; done and: perforthed, with reference ;to-the isstiance Of bOnds therefor, ,the, elec-: Hon thereon,', the,. cOnstructiOn and . equipment cOntrdets,. the. levying of :an' annual millage tax, for :the . payment ;of the' , bbnds. and . interest; and the, acts of the city , . council, of the city :OE Morrilten ,Wiith, reference. ttiereto,..were• illeg41, • oid,and -of no.. effect for the reasons 'set' out in ithe ;corn,: plaint—Plaintiff , pleads, that. subsequent to: the passage. of ordinaiiob No.,' 400; :the mayor of : the city of Morriltorf,:
452 NEAL V. CITY OF MORRILTON. [192 pursuant to authority expressed and set forth in said ordinance, called a special election for November 8, 1935, for the purpose of determining by vote of the qualified electors of said city, the question as to whether or not the city of Morrilton should iSsne and sell bonds to raise funds to obtain a site for, and , construct and maintain a municipal hospital: It is alleged that said ordinance and notice in providing that bonds shall be issued for the "maintenance" of municipal hospital is not authorized by said amendment No. 13, and said ordinance and notice . thereunder are void and of no effect on that account. Said notice conformed to the ordinance which provided for the construction and maintenance of such hospital. The ballot, however, prepared for the said election and used by the electors was not in conformity to the said ordinance or notice of the election, but provided for the purchase of a site, construction and equipment of the hospital. There are. other matters in the complaint suggested as being illegal. It is unnecessary, however, that we set these out or discuss them since we are agreed upon one of the material allegations, which we are impelled to hold is fatal to the further progress of the enterprise under ordinance No. 40.0. Amendment No. 13, 184 Ark. XXXI, is the only authority upon which the city of Morrilton might proceed for the construction and equipment of a hospital. Without quoting the entire 'paragraph, that portion of it relative to the matter under consideration provides : "for the purchase of sites for construction of and equipment of * * * hospitals, etc." This is the sole authority upon which the city might proceed. Municipalities derive their powers from the Constitution and the statutes. They may act legally only within those delegated powers. It is true that we have sometimes said that certain power and authority may be implied, but a power necessarily implied is a delegated power, nevertheless. When municipalities exceed their delegated powers, the act is ultra vires and, of course, ineffective. They function within limit§ fixed by the Constitution and law. Eagle v. Beard, 33 Ark. 497.
ARK.] NEAL v. CITY OF MORRILTON. 453 This court in Cumnock v. Little Rock, 168 Ark. 777, 782, 271 S. W. 466, said: "It is well settled in this State that counties, cities and towns or municipal corporations are created by the Legislature and derive all their powers from it unless otherwise provided by the State Constitution. Eagle v. Beard, 33 Ark. 497; Harrison v. Camp-bell, 160 Ark. 88, 254 S. W. 438." See also Kitchens v. Paragould, 191 Ark. 940, 88 S. W. (2d) 843. It is unnecessary to cite numerous authorities as every practitioner must recognize as practically elementary the announcements above made. Ordinance No. 400, under which the election was held, provided 'for the construction and "maintenance." These are words of common or ordinary meaning and acceptation, not .used in any peculiar, restricted or technical. sense. The word "maintenance" is not found in the provisions of amendment No. 13 in. regard to hospitals. Upon publication of this ordinance or publication of the notice for the election thereunder, citizens of the city of Morrilton must have understood that the proposition submitted to them to be voted upon was one for the construction, building, erection of a hospital structure and that when built, to make provisions for its maintenance, a means whereby it would be kept as a live, going concern for the city, an instrumentality for the relief of the sick of the community. Maintenance is rather a broad term. It could comprehend the organization of a hospital staff of physicians and surgeons, nurses and other attendants, as well as a means to supply necessary food, medicines and medicinal and surgical necessities of all kinds and for a continuation of such- support of the organization._ By no kind of reasonable construction are we able to say that the f)ertinent part of amendment No. 13 above copied provides therefor. It is argued that the ballot when prepared for the election did not conform to the ordinance, but provided for a vote for the construction and equipment instead of construction and maintenance of the hospital, and' that therefore the error in the use of the word "maintenance" in the ordinance was corrected inasmuch as the people did not vote upon the question of maintenance of the hos-
454 [192 pital, but. that they.'did 'vote. for. the- equipinent . of the. hospita4; and . that, it was : unnecessary to .vote . for the equiPment of the hospital, inasmuch as the equipment will be furnished'by the national goVernment as . a : grant and. without -bonds issued:therefor:. But we are unable to substitute the .wOrd '`..` equipment "'..fOr the word ' fmain tenance' ,' : in the: ordinance. They 6,fe not synonythous; and the ballOt provided so as to permit the Vote .upon. equipment was to that extent 'unauthorized by ordinance • • • . • ' . ," It is unnecessary to .discuss other 'matters set .forth. and 'argued :With equal force , challenging the legality, of. the ordinance and. proceedings of the 'city officers there-under. •! ; ..:, , • The chancery-court erred in sustaining the demurrer. The. 'decree Is' therefol'e reversed,: ., and 'the -cause re-. manded. With , direetions . overrule the' demurrer •and: for 'further' proceedings. • • . : , .
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.