I have heretofore merely noted my dissent when I have not agreed with the majority of the court. I have undertaken to express my viewpoint only when I have felt that a majority was so far in error that some protest was required as a marking place to indicate the point at which the court went wrong. The opinion of the majority in this case is erroneous. I think the error is a demonstrable one. It is not every act or ordinance of a city council that may be deemed subject to a referendum. For instance, a group of citizens in a city like Paragould, Jonesboro, Little Rock, or Hot Springs, might get together and organize for some subdivision of that city a municipal improvement district. *Page 464 The council would be required to pass proper ordinances. In such instances the council would act as agent for the property owners in the particular district formed. Such ordinances that would be passed are not measures which would be subject to be referred to the voters of the entire city. It was so held in the case of Pavement District No. 36 v. Little, 170 Ark. 1160, 282 S.W. 971. In such an instance as that mentioned the entire city has no interest. Nobody's rights will be affected except the property owners whose property will be assessed by the particular ordinance, and other property owners in different or other sections of the city have no right to vote thereon.
The rule is not different if the district be co-extensive with the city limits. In such a case, property-holders to the exclusion of mere electors will be affected.
The power and right of property owners to make improvements without a vote of a majority of qualified electors was decided in the case of Snodgrass v. Pocahontas,189 Ark. 819, 75 S.W.2d 223. Also in McCutcheon v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037; Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5.
The decision of the majority in this case will make it necessary perhaps for the legislature to amend the law and provide that such sub-divisions of the city, or property owners of the entire city, as may desire local improvements may not defend upon the council, but shall have the right to have a local commission within the territory affected make and declare proper rules or ordinances as agents for the property owners whose property will be taxed for the local improvement. In other words, in the case at bar the council acted in a purely administrative capacity, as legislative agents for the property owners whose property will be affected, assessed or taxed for the improvement, but not for municipality or electors generally, and such other citizens of the city have no interest therein and should not he called upon to aid in deciding matters in which the city is not involved. The bonds issued are not obligations of the municipality. The taxpayer generally will not be affected thereby and will not owe or be liable to pay one cent of principal and interest upon any bond issued. *Page 465
This proceeding is under act 132 of 1933 and 7 thereof expressly provides there shall be no liability except upon the property assessed, it being connected and receiving the service.
It is said in the case of Monahan v. Funk,137 Or. 580, 3 P.2d 778: "The crucial test for determining that which is legislative and that which is administrative is whether the ordinance was one making a law or one executing a law already in existence."
Applying this test we find certain citizens in Paragould are asking for the application of the law whereby some improvements can be made on the sewer system and an extension made thereon with a right to tax users. The bonds to be issued will be paid from an assessment on the connected property by these people who ask the city council to apply the law to their properties and form the district. We now find an anomalous situation in which the entire electorate of Paragould is given the right to come in and vote on whether citizens interested may improve their own property and those who have no interest whatever may deny them that right.
Having stated my position I have no desire to argue it or submit authorities in regard to it. To my mind the mere statement of it establishes its soundness and the unsoundness of the position of the majority.
SMITH and McHANEY, JJ., concur in the dissent.