(after stating the facts.) This court has sustained the act of 1885 as a proper delegation of the police power. James v. Pine Bluff, 49 Ark. 199. Therefore the only question for our consideration is, does the power “to build and maintain suitable pavement or sidewalk'improvements ” confer upon the city the power to require of the abutting owner such excavation as may be necessary to bring the sidewalk to the grade of the remainder of the street? The power to require grading not being granted in express terms, it should not be included by interpretation unless reasonably or necessarily implied. 1 Dill. Mun. Corp. sec. 89. “Pavement” or “sidewalk improvements,” as used in the act, are convertible terms. ‘ ‘A pavement is not limited to uniformly arranged masses of solid material, as blocks of wood, brick or stone, but it may be as well formed of pebbles or gravel or other hard substances which will make a compact, even, hard way or floor.” Burnham v. Chicago, 24 Ill. 496. The term “ sidewalk,” as used in the ordinance, means the same as pavement as above defined. “Sidewalk,” when used to designate a part of the highway, means that part of the street intended only for pedestrians, and is thus distinguished from that part of the street set apart especially for vehicles and horsemen. “ Street ” is the generic term for all parts of the way—the roadway, the gutters, and sidewalks. Elliott ■on Roads & Streets, p. 17.
By secs. 5141, 5209 of Sandels & Hill’s Dig., “the care, supervision and control of streets” is given to the city council. They have power to lay off, open, widen, straighten and establish, to improve, keep open, and in repair, “to enter upon, or take for such of the above purposes as may be required, land or material, and to assess and collect a charge on the owner or owners of any lot or land, or on lots or lands through or by which a street * * * shall pass for the purpose of defraying the expenses of constructing, improving, repairing such streets, such charge to be in proportion to the value of such lot or land as assessed for taxation under the general'law of the State.” “To provide for the improvement of the streets, sidewalks, etc., they shall have power to direct and require that any or all male persons between the ages of eighteen and forty-five, residents of the city, shall be subject to street duty performable by work and labor in or upon the streets, sidewalks,” etc. Sec. 5179, S. & H. Dig. ' See also, sec. 5321, et seq., S. &. H. Dig., in regard to local improvement districts.
We think it clear that the removing of embankments- and filling gulches for the whole of the street, including sidewalks, in order to conform to the established grade, is to be done under some of the above provisions. Abutting owners or occupants may be required only to lay sidewalk or pavement. This includes “all that is necessary, usual, or fit, for laying a pavement.” 2 Dill. Mun. Corp. sec. 794. Mere surface grading, such as-removing inequalities of the surface after the sidewalk has been brought to the general grade of the other part of the street, may be required ; for a sidewalk of the kind prescribed could not be laid properly without, smoothing and leveling the surface. But such a thing as cutting down hills and filling hollows—substantial grading-’-in our opinion is not included in the grant of power, and was never contemplated.
We are not without authority to support this conclusion. The legislature of Connecticut vested exclusive power in the court of common council of the city of New Haven to construct and maintain streets within its limits. The court of common council ordered proprietors-on either side of a certain street to construct a sidewalk in front of their lands respectively. The charter of New Haven provided, among other things, for “the placing of a lien on the laud of any proprietor of land or buildings, fronting on any highway or street in the city who should1 neglect or refuse to perform the thing or things required by an order of the court of common council for the making, raising, grading, paving or flagging any sidewalk or gutter in said city adjacent to the said land or building in the manner and within the time specified in such order.” A certain corporation, under the above order, proceeded to construct a sidewalk. Extensive repairs-had to be made in a sea wall which supported the walk, before same could be properly laid. In a suit to recover for the cost of the repairs and walk, the supreme court. of Connecticut say : “Before a court of common council can legally require an owner abutting upon a street to construct a sidewalk in front of bis premises, the city must construct the street for the entire width at the proper grade.” Pres. Yale College v. New Haven, 17 Atl. 139. And, in a late case, where the plaintiff was seeking to set aside a lien claimed by the city for the expense of cutting down ten or twelve feet lower than the original grade of plaintiff’s land, the contention was that, under the charter provisions, owners of abutting lands should be required to grade and construct sidewalks at their own expense. The court quoted the language used in the Pres. Yale College v. New Haven, supra, and reiterated with emphasis the doctrine there announced. Hillhouse v. New Haven, 26 Atl. 393.
A statute of Tennessee granted'power “to regulate and construct sidewalks and foot pavements,” the same as ours, and gave a lien on abutting lots for cost of same. The ordinance made it the duty of lot owners to construct good and substantial “sidewalk or foot pavement.” In a suit seeking to enforce the lien for cost of pavement, including an amount for an “ embankment or fill made in order to bring the grade of the sidewalk to the established grade of the street,” Chancellor Cooper said: “It is obvious, in the case before us, that neither the law nor the ordinance contemplates any charge upon the owner of the lot beyond the cost of improvement.” Only the cost of the sidewalk proper was allowed. Smith v. St. Louis Mutual Life Ins. Co. 3 Tenn. Ch. 631.
The cases cited by Judge Dillon in his second volume, at page 798, sec. 797, when critically examined in view of the statutes upon which they are based, we believe, will not discover any conflict with the opinion we have expressed. Schenley v. Commonwealth, 36 Pa. St. 29; McNamara v. Estes, 22 Ia. 246; State v. Elizabeth, 30 N. J. Law, 365. We should decline to follow therm if they were contra.
The act of 1885, on which the ordinance is founded,, contravenes every principle of criminal jurisprudence in giving power to cities to require the performance of an act which in some instances may be impossible, and to-treat such failure as a criminal offense, and punish accordingly. In every case we have been able to find upholding such legislation as a proper exercise of the-police power, the city has proceeded under the power by civil proceedings, and not criminal. All the cases cited by Judge Smith in James v. James, supra, are cases of this kind. Generally it is sought to subject the property for the cost of the improvement. But this act is-highly penal; also the ordinance, in that it seeks by criminal process to subject the party failing or refusing-to the payment of a fine, and makes each day of such, failure or refusal a separate offense. We think the act', approaches the very verge of constitutional sanction.
The Supreme Court of Connecticut, in Hillhouse v. New Haven, supra, uses this language: “Judge Cooley says in his work on Constitutional Limitations : ‘ Lots, above and below an established grade are usually less, benefited than the others, because the improvements subject them to new burdens in order to bring the general surface to the grade of the street which the others-escape.’ So that, if the contention of the defendant, were sanctioned, * * * he to whom the improvements would be of the least benefit would be subjected, to the greatest expense in making them.” So we say in. the present case, if the city’s contention could be maintained, the defendant, according to the proof, would, have to cut down the sidewalk seven or eight feet to-bring it to the grade of the rest of the street; while: those opposite him on Water street would have a deep-gulch to fill, requiring an embankment of earth twenty-two feet wide at the base. All this expense to the lot owners thus situated, in addition to the laying of the sidewalk, while their near neighbors on the same street, whose lots happen to be on the level of the grade established, have only the expense -of laying the pavement. An ordinance which operates thus partially and unfairly would be unreasonable and void as to the locality thus affected, even if grading were included in its terms. 1 Dillon, Mun. Corp. sec. 322.
Since the legislature has not in express terms conferred the power to require grading, and since we do not find that it is fairly or necessarily implied in the power to “build and maintain sidewalks or pavements,” we will not, by construction, say that they contemplated the laying of such unequal and oppressive burdens upon abutting property owners. 1 Dillon, Mun. Corp. sec. 321.
The judgment of the Pulaski circuit court is therefore affirmed.