(dissenting). The Majority Opinion clearly states the three points, and my dissent goes only to the first of these.1 I am convinced that the. proceedings of the City Council of Trumann of December 27, 1962, and all subsequent proceedings, are invalid. The City Council should be required to publish the resolution of that date and then have subsequent proceedings. It must be borne in mind that on December 27, 1962, the City Council of Trnmann by resolution approved the Urban Renewal Plan, but the resolution was never published, as required by law.
The Majority Opinion says that the City Council’s action was only a “resolution” and therefore .did not have to be published; but my answer to that statement is the decision of this Court in McClellan v. Stuckey, 196 Ark. 816, 120 S. W. 2d 155. In that case, the City Council (of Lepanto) adopted one “resolution” authorizing and another approving a special census, which had the effect of changing Lepanto from a town to a city of the second class. Neither of the resolutions was ever published; and this Court held that the failure to publish the resolutions was fatal to the proceedings. Mr. Justice McHaney, speaking for a unanimous Court, said:
“Two resolutions of the city council were passed, one on October 14, acting upon the petition of ten or more residents, in which enumerators were appointed to take a census, and the other was passed on November 26, 1935, as the result of which the town was advanced to a city of the second class. Section 9559 of Pope’s Digest provides that all by-laws, or ordinances, of a general or permanent nature and those imposing any fine, penalty or forfeiture shall be published in some newspaper of general circulation in the corporation . . . The trial court held that the resolutions above mentioned, of October 14 and November 26, were within the purview of that section of the Digest and should have been published. "We think the court was correct in so holding. It is immaterial that these enactments of the city council were designated as resolutions. The effect was to provide for a new and different form of government for the municipality which did affect all of the people thereof, and there could have been no good reason why they should not be published, unless to keep the people in ignorance of what the mayor and council were undertaking to do.”
The § 9559 of Pope’s Digest mentioned-in the above quoted opinion as requiring publication, said: “. and all by-laws or ordinances of a general or permanent nature, and of those imposing any fine, penalty or forfeiture, shall be published in some newspaper of general circulation in the corporation ...” The above quoted language was held to cover a resolution on a special census in Lepanto. The same identical language is found in Ark. Stat. Ann. § 19-2404 (Repl. 1956) as the governing law today regarding publication; and if the quoted language applied to a resolution as was held in McClellan v. Stuckey, it would certainly apply to a resolution like the one here involved. The holding in McClellan v. Stuckey is ruling in the case at bar. The City Council of Trumann passed a resolution which set up the Urban Renewal Authority, which for a long period of years has the power of eminent domain (Ark. Stat. Ann. § 19-3015 (Repl. 1956) and can take in fee and forever the property of citizens. Such is of a rather permanent nature!
I cannot distinguish the McClellan-Stuckey case from the one at bar; and therefore I am compelled to dissent on this one point. Why not publish the resolution o'f the City Council in a newspaper, as provided by law, and let people generally know then and there what was proposed to be done in the community and what were the conditions the federal government would impose on those accepting federal money? .The spotlight of publicity is required by law, and this Court should do nothing to let it be avoided.
For the reasons herein stated, I respectfully dissent.
Dale Price, Special Justice(dissenting). I respectfully dissent from the holding of the majority in this case, and I concur in the dissenting opinion of Justice McFaddin.
The majority has passed upon the power of the Legislature to delegate to an agency certain powers which it may exercise, including the power of eminent domain. While I find no fault with the citations and pronouncements made by the majority in that regard, they have remained silent upon the constitutional question posed by the appellant.
Appellant maintained that Speedway Urban Renewal Project was unconstitutional in that it applied to the entire 47.91 acres in the tract. Yet only 27.52 acres were to be acquired by the Agency. The majority opinion infers that Section C 2 c of the plan quoted in the opinion does not make the proposed zoning provisions applicable and therefore places no new burdens or restrictions upon the landowners whose lands • are not being condemned. The zoning plan referred to consists of only one map, which is designated as URP4 and entitled “Proposed Zoning Plan.” In addition to the zoning plan there are thirty-two pages of strict controls affecting the entire tract, whether or not it .be taken by the agency.
Article II, Section 22 of the Arkansas Constitution provides:
“The right of property is before and higher than any eonsttiutional sanction; and private property shall not be taken, appropriated, or damaged for public use without just compensation therefor.”
This Court has held in Shellnut v. Arkansas State Game and Fish Commission, 22 Ark. 25, 258 S. W. 2d 570, in dealing with a question similar in principle to the present case, that:
“Even though Constitutional Amendment No. 35 gives broad powers to the Commission, nevertheless, the Commission is subservient to, and bound by, Art. 2, Sec. 22 of the Constitution, which reads:
“* * * private property shall not be taken, appropriated. or damages for public use, without just compensation therefor. ”
It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty. It is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner. See Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 80 U. S. 166, 20 L. Ed. 557.
(2) The effect of the Commission’s “Special Regulation” of 1950 was to seriously restrict the appellants’ use of their lands, and was, therefore, violative of the quoted Constitutional provision.”
Regardless of whether the improper power to be exercised be called a “regulation” as in the Shelhwt case, or a “plan” as in the instant case, the effect is the same, and it .constitutes an appropriation or taking of property without just compensation.
The landowners within the project whose property is not being condemned and paid for by the agency must still bear with and comply with the requirements of the agency. The majority opinion cites the opinion of Rowe v. Rousing Authority of the City of Little Rock, supra, yet it is distinguishable from the instant case in that THE ENTIRE ten-acre tract was acquired by the agency by eminent domain proceedings and just compensation was paid to ALL the affected landowners. I would declare the ordinance adopting the plan unconstitutional.
I am permitted to state that Justice Johnson joins in this dissent.
As stated in the Majority Opinion the first point is: “The validity of the proceeding's of the City Council of Trumann,. Arkansas, in setting up the Urban Renewal Agency, authorizing it to transact business and exercise powers, and in approving the Urban Renewal Plan and feasibility of relocation for Speedway Urban Renewal Project ARK R-33, in the City of Trumann; . . .”