The act which has fallen under the opinion of the majority does not require the building of an auditorium. It merely declares that an auditorium may be the subject of a local improvement, to be paid for by special assessments. The authority to build is made contingent upon the vote of the people of the city and the subsequent approval of the plans for the auditorium by the county court. The act does include both urban and rural territory; but this is in unimportant under the majority opinion, for the reason that an auditorium cannot be the subject of an improvement district in either urban or rural territory, or both. The majority have judicially determined that an auditorium cannot confer such special benefit on real estate, either urban or rural, or both, as to justify the imposition of special taxes for its construction.
In my opinion, the court should not have so declared as a matter of law, but should have respected the legislative finding to the contrary. The Legislature may know some things of which we are ignorant, at least in our capacity as judges. At any rate, the General Assembly must first act, must provide the necessary legislation, before improvement districts of any kind may be organized for any purpose. The Legislature has a solemn and original duty in the premises; and when it has exercised the function with which the Constitution clothes it, its finding should be respected by the courts, unless it so clearly appears as to leave no room for doubt that it has exceeded its constitutional authority.
Legislative action may be reviewed by the courts, not to decide the wisdom or expediency thereof, but solely to ascertain whether the power to act has been denied *Page 620 the Legislature by the Constitution. These elementary statements of the law require no citation of authority to sustain them.
Here the Legislature has said that an auditorium might, in certain cases, where the electors have assented thereto, be the subject of a local improvement. The court has refused to respect this finding, and by a process of reasoning has reached and announced the conclusion that this finding is false. This has been done, notwithstanding the universal rule for the government of the courts in the construction of such legislation is to respect the legislative finding unless that finding was arbitrarily and demonstrably erroneous. This court has many times applied that rule in upholding legislation.
At section 14 of the chapter on Special or Local Assessments in 25 R.C.L., page 99, it is said: "The question of the necessity and reasonableness of a local improvement is for the determination of the Legislature, not the courts, and the legislative determination of the character of an improvement as a local one is conclusive unless arbitrary and unfounded in reason."
The majority say that the churches, theaters, school houses, courthouse, and city hall of the city afford ample space for any of the ordinary civic assemblies in pursuit of business or pleasure. I submit that the legislative finding to the contrary is not arbitrary or unfounded in reason.
The majority also say that an auditorium might be so managed that only the fortunate and prosperous portions of the community might avail themselves of its facilities. Shall we assume — and upon this assumption find — that the very purpose of the Legislature will be defeated by the adoption of such a policy on the part of the legal custodians of the building? Would it not be more consonant with the prerogatives of the court to assume that such a diversion from the contemplated purpose would not be attempted, but if it were so, that the courts would enforce the rights of the public. *Page 621
No such apprehension deterred the court in the case of Matthews v. Kimball, 70 Ark. 451, from upholding the ordinance city of Little Rock providing for the acquisition of a public park.
But it is said the opinion in that case was rendered by a divided court. So it was, but is the authority of the case lessened on that account? All the arguments here advanced against the right of the city to acquire an auditorium were there advanced against the right of the city to acquire a public park. In that case the opinion of the special chancellor, upholding the district, was adopted as the opinion of this court on the appeal. In that case the chancellor, among other things, said: "I think it would require strong evidence to show that a park like this one was not beneficial to the whole property in the city, and surely no court can say, as a matter of law, that the public park is not or will not be beneficial to the city." The opinion then quoted from the opinion of the Supreme Court of the United States in the case of Wilson v. Lambert,166 U.S. 611, as follows: "`Whatever tends to increase the attractiveness of the city of Washington as a place of permanent or temporary residence will operate to enhance the value of the private property situated therein and adjacent thereto.'"
In view of this statement by the highest court of the land, and the finding of the Legislature of this State that an auditorium may, in certain case, become a local improvement, to be paid for by special assessment, shall we say that finding is arbitrary and demonstrably erroneous? The world moves. We are progressing. The luxury of yesterday is regarded as a necessity today. The schools and churches and buildings of that character may not afford such facilities for public assemblages as may now be required. Auditoriums have, as a matter of common knowledge, been erected in many of the more progressive communities, and have been paid for out of the public revenues, upon the theory that the cities possessing them are made more attractive as places of residence. *Page 622 If this be true, shall we say, as a matter of law, that there can in fact be no such enhancement of property values from the erection of an auditorium as to justify the imposition of special assessments to meet the construction cost?
In my opinion, there is at least enough doubt about the facts to allow the legislative finding to stand as not being arbitrary and demonstrably erroneous, and I therefore respectfully dissent from the conclusion of the majority.