(dissenting). Mr. Justice Wood and myself are of the opinion that the forming of a local improvement district within the city for the purpose of constructing a bridge without the city limits is in plain violation of our Constitution.
Article 19, section 27, of our Constitution reads as follows:
“Section 27. Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.”
What the meaning is of the phrase “local improvement” is a question of law. In the case of Crane v. Siloam Springs, 67 Ark. 30, the court said:
“If we look for the technical or legal meaning of the phrase ‘local improvement,’ we -find it to be a public improvement, which, although it may incidentally benefit the public at. large, is made primarily for the accommodation and convenience of the inhabitants of a particular locality, and which is of such a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement. ’ ’
In the case of Hundley & Rees v. Commissioners, etc., 67 Ill. 559, the court had under consideration the assessments for the improvement and completion of Lincoln Park, which was situated partly in North Chicago and partly in Lake View. It was claimed that the proceedings in that case were had under a clause of the Constitution which provides that “the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments or by special taxation of contiguous property or otherwise.” In determining whether the assessment for the park was a local improvement within the meaning of this clause of the Constitution, Chief Justice Breese, who delivered the opinion of the court, said:
“From the evidence in the record, it appears this park is to he*constructed within the corporate limits of two towns. The property in both the towns is assessed to defray the costs and expenses of acquiring the land and improving the park, and assessments are to be paid by the property owners of those towns, not to pay for lands lying inside, and improvements which are to be made within those towns, but for lands situated outside, and for improvements which are to be made outside the corporate limits of such towns. Thus, taxes paid on property in North Chicago would be expended for lands and improvements, some of them in North Chicago and some in Lake View, and taxes paid on property situated in Lake View would be expended in North Chicago. How, then, can it be contended that the creation of a park in Lake View by taxes in part paid by North Chicago would be a local improvement of North Chicago, or vice versa in Lake View?
“We must hold, therefore, that an assessment on property in North Chicago, for a local improvement in Lake View, or vice versa, is not within the meaning we are disposed to give this clause of the Constitution.”
As far as the principles of law involved in this case are concerned, it will be seen that the clause of the Constitution of the State of Illinois granting to municipal corporations the power to make local improvements is in no respect different from our own Constitution. The holding of the Supreme Court of Illinois in the case just referred to is in accord with our previous decisions on the attempted organization of an improvement district to construct the identical improvement involved in this ease. Mullins v. City of Little Rock, 113 Ark. 590, and Mullins v. Commissioners of Bridge Improvement District No. 2, 114 Ark. 324.
In the latter case the court held invalid an ordinance of the city establishing an improvement district to construct a portion of a bridge across the Arkansas river, the portion to be constructed by the district to be to the center of the river which was the geographical boundary of the city. In that case it was proposed that the other half of the'bridge should be erected by Pulaski County or by an improvement district in the city of Argenta. The court said:
“It might be possible for these different agencies to co-operate harmoniously in the construction of this improvement, so that, when their joint labors were completed, a bridge would be constructed, but, while this is possible, it is not certain. Even if satisfactory plans should be prepared and accepted, many questions of detail would arise, which would require conferences and concessions, and if these conferences were not held and concessions made, a condition would arise which the law has not contemplated nor provided for. Such improvement as a bridge must be situated wholly within the improvement district, and, in our opinion, this ordinance seeks to do indirectly what it is not permitted to do directly, and that is to aid in the construction of this bridge. ’ ’
Thus it will be seen that here is a distinct announcement of this court that such an improvement as a bridge must be situated wholly within the improvement district which was organized to construct it. We presume under the views expressed in the majority opinion that this language is now considered obiter dictum, but it will be readily seen from the context that such is not the case because it was a part of the reasoning which led the court to the conclusion reached by it.
Again, in the case of Loeffler v. Chicago, 246 Ill. 43, 92 N. E. 586, 20 A. & E. Ann. Cas. 335, the court held that a sewer partly in one municipality and partly in another, for the use and benefit of both, is one continuous improvement and not two separate and distinct improvements. The court further held that the question of whether an improvement is local in character so that it may be made by special assessment is one of fact, but the determination of the local authorities is subject to review by the courts. There it was contended that in order for the sewer in the city of Chicago to be of any benefit to the property within said city an outlet in the town of Cicero for such sewer was required. It Vas contended that while it is the general rule that a municipal corporation can only exercise its power within its corporate limits, still that this doctrine is subject to the qualification that such authorities may do those things which are necessarily and fairly implied or incident to the powers expressly granted to them. Therefore, it was insisted that a municipality must have the power to obtain an outlet for a. sewer outside its corporate limits if no such outlet can be found within such limits. The court recognized this qualification to the general rule, and in commenting upon the cases announcing it, said: pality.” See also Waukegan v. De Wolf, 258 Ill. 374, 101 N. E. 532, Ann. Cas. 1914, B-538.
“A reading of these decisions shows that they were based upon the theory that the outlet of the sewer was really a part of the improvement and was for the exclusive use of the municipality in question. Such, however, is not the case here. True, that part of the sewer in the town of Cicero is to furnish an outlet for that part of the sewer in the city of Chicago, but it is also for the use and benefit of land in Cicero adjacent to it. These cases are not in conflict with and do not overrule the general doctrine on this question laid down in Hundley v. Lincoln Park, supra.
“Counsel for appellees further argue that this improvement, considered as a whole, is a benefit to a special locality and will specially and peculiarly enhance the value of the property in that vicinity; that, therefore, under the definitioins of ‘local improvement’ this improvement can be held to be one even though it is partially within two municipalities; that none of the decisions in this State except the Hundley case, siopra, would conflict with such a holding. It is clear from an examination of the cases where this court has discussed the meaning of the phrase ‘local improvement,’ as used in said provision of the Constitution, it has been understood to be an improvement within and under the control of one muniei-
Again, in Sylvester v. Macauley, Wilson’s Superior Court Reports, volume 1, page 19, the court had under consideration an ordinance for the grading of a street of the city of Indianapolis in the State of Indiana. A property owner refused to pay the assessment on the ground that that part of the street which was contiguous to her property was not in fact within the city. The court held that the city council had no power to construct its improvements beyond the city limits, and that no assessment would lie, therefore, against property owners abutting such improvements. A review of the authorities cited and a comparison of our clause of the Constitution with reference to local improvements with the clause of the Constitution of the State of Illinois relating thereto leads us to the conclusion that a local improvement can not be organized within the corporate limits of a city or town to construct an improvement outside of the corporate limits of such city or town. It is perfectly evident that the bridge when constructed will be of as much benefit to the property contiguous to it on the side of the river on which North Little Bock is situated as it is to the property near it on the side of the river on which Little Bock is situated. The cities of Little Bock and of North Little Bock are entirely disconnected at the points where it is proposed to span the river with the bridge. The purpose of the bridge is to connect these two cities so as to give the public unobstructed and convenient access from one city to the other. It will necessarily be as much used on the North Little Bock side of the river as on the Little Bock side. That is to say, the improvement will be as much used outside of the city of Little Bock as in it. The improvement will necessarily benefit adjoining property on the North Little Bock side of the river as much as it will benefit adjoining property on the Little Bock side of the river. It is evident that the primary purpose and effect of constructing the bridge is to benefit the public generally and not to improve the particular locality. While it is true that if its purpose and effect is to improve a particular locality it is a local improvement, although there may be an incidental benefit to the public, yet it is equally true that if the primary object is to benefit the public it is not a local improvement, although it may incidentally benefit property in a particular locality. Hence we do not think the improvement is a local improvement in a town or city within the legal definition of the phrase “local improvement,” as used in our Constitution. It is only local in the sense that it is to be erected in a particular .locality, and is nearer to some persons and property than to others.
Our conclusion on this point is decisive of the entire case, and we therefore forbear comment on other points discussed in the majority opinion.'
Wood, J., concurs in this dissent.