(dissenting.) If the decision of this case depended on my personal feeling in the matter, 1 should favor the appellee, for I consider the park to be an ornament to the city, and should like to see it improved. But a consideration of the case has convinced me that the assessment levied against the lots of the appellant should not be sustained, for the reason that the lots neither adjoin nor are adjacent to the park which it is proposed to improve.
A provision of our state constitution specially authorizes assessments on real property for local improvements in towns and cities, but provides that such assessments shall be based upon the consent of a majority in value of the property holders owning property adjoining the locality affected. Const. 1874, art. 19, § 27.
In considering the meaning of this section, the first question I shall notice is what is meant by the phrase “the locality affected,” for it is only land adjoining “the locality affected” that the constitution permits to be assessed for the improvement. In other words, it is not the “locality affected,” but the property adjoining the “locality affected” which is to be taxed for the improvement. For this reason, it seems to me very plain that the phrase “locality affected,” as used in the constitution, does not mean the locality or land benefited in value only by the improvement, for, if it did, it woukl include the whole improvement district. As the land upon which the assessment is to be levied is that adjoining the “locality affected,” then, if “the locality affected” includes the whole district, it would follow that the constitution would authorize the assessments to be levied, not only upon the lands of the improvement district, but also upon the lands adjoining the district, which would be upon the lands outside the district. This would be absurd, and would lead to a result that we know was not intended. The .locality affected means, then, I think, not the lands benefited in value by the improvement, but that which is physically affected by the improvement, such as the street or the park which is improved, and it is the land which adjoins this improvement that the constitution permits to be assessed.
Now, the city is laid off into blocks 300 feet square, and the lots of appellants upon which the assessment is imposed are from a quarter of a mile to three miles distant from the park. If these lots adjoin the park, then the whole city adjoins the park. And this is the conclusion at which the majority of the judges have arrived. In their opinion, they say, as a reason for this conclusion, that “there is no' break in the continuity of the assessable lots or parcels of ground from the park to the outmost boundaries of the district, which is the city.” But by the same line of reasoning it can be shown that the whole county adjoins the park, for there is no break “in the continuity of the ground.” The same thing may be said of the state, and, as the whole world itself is but a compact ball of which the park is a part, it may all, under this line of reasoning, be shown to adjoin the park.
Evidently, this is not the correct construction of the section of the constitution referred to. We should presume that words in the constitution have been used in their natural and ordinary meaning. Cooley, Const. Lim. (6th Ed.), 73. The usual and ordinary meaning of the word “adjoining” is contiguous, or in contact with. Cent. Diet.; Webster’s Diet. This is also the meaning that the courts have generally given to it when found in the law. In re Ward, 52 N. Y. 395; Johnson v. District of Columbia, 6 Mackey (D. C.), 21; Akers v. United N. J., etc., R. Co., 43 N. J. L. 110; Miller v. Mann, 55 Vt. 475; And. Law Dict.
This, it seems to me, is the meaning of the word as found in our constitution, though in the case of Little Rock v. Katzenstein, 52 Ark. 107, this court, in a street improvement case, held that all the lots of each quarter of a block adjoined both of the streets upon which the quarter abutted, notwithstanding that it was divided into lots, so that some of them were not contiguous to both streets. In other words, the court held that the whole of the quarter of the block adjoined the streets upon which it abutted, and that the question of whether the property in the quarter block adjoined a street was not controlled by the way in which it was subdivided into lots.
Under this decision, it might perhaps be held that all the lots in the blocks surrounding and contiguous to the park were adjoining it, within the meaning of the constitution, but it seems to me to furnish no authority whatever for holding that lots separated from the park by nearly the whole city and by the Arkansas river are still adjoining the park.
But it is said that, if only the blocks adjoining the park can be assessed, the park could not be improved. To this we can say that the park could be improved by the use of the general funds of the city, or it could be improved in part by such funds and in part by an assessment upon the surrounding blocks to the extent that these blocks are specially benefited by the improvement. If the tax which the law allows the city to levy is not enough for that purpose, the law should be changed. The argument on this point may show that the law is defective, and needs revision, but it furnishes no reason why the courts should make the change in the law by putting a new and altogether novel meaning upon the words used in the constitution.
The contention that the action of the city council in including the whole city in the district to be assessed for the improvement of the park is conclusive of the question that the lots of appellants adjoin the park can hardly be treated as seriously made. It is true that discretionary powers of a city council are not subject to judicial control, but under our constitution it is not within the discretionary powers of a city council to assess lots for an improvement where the block in which the improvement is situated does not adjoin the locality improved. In the absence of a showing to the contrary, the court would presume that the council did not overstep the law, but, when it is clearly shown that it did undertake to do so, the courts would be compelled to hold that the constitution was superior and paramount to the city ordinance; otherwise, the constitution could be overturned by the action of a city council, and, so far as affording protection to property rights, would be worthless. There is neither reason nor authority for such a contention. Norwood v. Baker, 172 U. S. 269.
Another point argued is that some of these appellants joined in the petition to the council for the formation of the improvement district, and are thereby estopped to question the validity of the ordinance the passage of which they procured. As there are others of the appellants who did not join in the petition, and as the decision of the majority of the judges is not based on this ground, I have not given much consideration to this point, for it affects only those who signed the petition. But I will say that, as to those who signed the petition to the council for the formation of the district, it might well be held that they could not at this time question the fact that their land was properly included in the district; the district having been formed and the land included at their request. After the improvement has been made as requested by them, it would seem to be too late for them to question the validity of the ordinance on that ground, and I am of the opinion that they are estopped from doing so. Burlington v. Gilbert 31 Ia. 356.
But, as before stated, this does not affect the rights of those who did not sign the petition. As to them, it seems to me that it is clearly shown that their property does not adjoin, or even lie adjacent to the park, and that therefore the attempt to levy a special assessment upon it for the improvement of the park is contrary to the constitution and invalid. For this reason, I think that the decision of the chancellor sustaining the assessment is, as to those who did not sign, wrong, and should be reversed.