Conley Byrd, Justice.
Appellants, Arthur B. Saunders, et al appeal from an order of the circuit court upholding the annexation of 55 square miles of territory to the City of Little Rock. Appellants, while conceding that a portion of the 55 square miles is subject to annexation, contend that some five to ten thousand acres of mining lands and some 12 square miles of flood lands do not qualify for annexation to the City of Little Rock within the meaning of Ark. Stat. Ann. § 19-307.1 (Supp. 1975), which provides:
“Any municipality may by vote of two-thirds of the total number of members making up its governing body adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.”
The facts are virtually undisputed. Everybody that testified on the subject acknowledged that the mining lands were reserved by the owners for mining purposes — i.e., after annexation it will remain as vacant mining land. During oral argument the City of Little Rock candidly admitted that the mining lands did not fall into items 1, 2 or 3 of the statute, supra, for annexation purposes. The City insists that the mining lands qualify under items 4 and 5 of the statute, supra, for purposes of annexation. In its brief the City refers to the following testimony of Mr. C. V. Barnes, to-wit:
“A. Well, the city is interested in regulating and controlling mining for several reasons. One is that in a mining area, that area should be principally devoted to that activity, it should be reserved for the activity and currently, there is no control there and as a result there has been residential development, one of which was mentioned by others today in testimony, pop up in the middle of the mining area.
Q. What happens when that occurs?
A. Well, I can tell you the status it is in right now, they are both in bankruptcy.
Q. So no one gains?
A. No one gains, that’s right, because you’ve got depressed property so what is there that generated ad valorem taxes is affected, certainly the developer doesn’t gain because he doesn’t have a viable development and the people who may have purchased the property in the development unknowingly certainly have suffered a major loss.
Q. Do you forsee residential development will deteriorate and become sub-standard?
A. That would be the natural tendency.
Q. Thus becoming a burden on the local government?
A. Becoming a burden on whatever development is in that addition, yes sir. Now, by the same token, people in the mining industry or business are just as concerned because of what single family residential development in the area affects their outfit, so it’s a two way street.”
Likewise, with the flood lands the facts are virtually undisputed. No subdividing is permitted below the 100 year flood elevation now and if annexed to the City, the City will prevent any building below the 100 year flood elevation. No construction or fill would be permitted in the floodway proper by the City. The City itself has no plans for draining the flood lands but like everybody else is relying upon the U.S. Army Corps of Engineers. The Corps of Engineers has devised a number of plans for flood control, one of which has been adopted by the City but nobody is in a position to predict when and if any action will be taken. Even under the Corps of Engineers’ plan a substantial portion of the flood plains will remain below the flood stage that could only be used by the City for urban recreational use. The testimony of Mr. C. V. Barnes, an expert witness called by the City on the prospect of channelling Fourche Creek is as follows:
“A. Well, of course, remember you had about a four fingered question and we started to work on finger number one which we never did get down to the other three or four fingers. Remember this, that at some point in time, and you, I think asked me to explain to you what would happen at some time in the future, at some point in time, Fourche is going to be channelized and the Corps of Engineers will, or some other agency, will determine what the width of that channel is, but that channel will be fairly narrow compared to the flood plain as shown on this exhibit four, Plaintiff’s Exhibit 3, beg your pardon, so when that time comes, the area outside that channelization in all probability will be reclaimed and used. Now, the definition of value, as it’s been explained to me in the books, I don’t know whether Webster says this, is the present worth of future benefits, so when things, in other words, that’s the way people look at land is what I do today based on what I get tomorrow.
Q. That would be valuable in that sense by reason of their assessability to streams in the area.
A. Well, you know there’s no reason in my mind to assume that the people in Little Rock are more backward or less progressive than the people in Dallas, Texas. Now, it all gets to be when. I can’t answer that and I will admit that it is speculative because I can’t answer it, but at some point in time, maybe in my life time, maybe not, something is going to happen to Fourche Creek and you are going to see Fourche Creek bottoms which you are so concerned about now as the flood plain, having potential for development just like as happened in Dallas and it’s also been my observation over 50 odd years of making them, that if you want to see what’s going to happen in Little Rock, Arkansas ten or twenty years from now, you go look and see what’s happening in a community that is now the size of what Little Rock will be based on that growth that’s going to take place in the intervening time.”
Dwight Linkous, a member of the board of directors for the City of Little Rock, testified that the City had obligated itself to pay $75,000 over a three year period to some professional consultants, “Booze-AUen-Hamilton,” to make a study concerning the orderly growth of the City of Little Rock. Those consultants had recommended that the flood plains and mining areas be excepted from the City.
We agree with the City that to annex lands a municipality “must show that the lands to be annexed meet one of the five criteria set out in the first paragraph of the statute.” Furthermore, we note that the statutory criteria is taken almost verbatim from Vestal v. Little Rock, 54 Ark. 321 (1891). With respect to annexation of lands by a municipality, in Vestal v. Little Rock, supra, we said:
“. . . [W]e will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation.
1.
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Conley Byrd, Justice.
Appellants, Arthur B. Saunders, et al appeal from an order of the circuit court upholding the annexation of 55 square miles of territory to the City of Little Rock. Appellants, while conceding that a portion of the 55 square miles is subject to annexation, contend that some five to ten thousand acres of mining lands and some 12 square miles of flood lands do not qualify for annexation to the City of Little Rock within the meaning of Ark. Stat. Ann. § 19-307.1 (Supp. 1975), which provides:
“Any municipality may by vote of two-thirds of the total number of members making up its governing body adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.”
The facts are virtually undisputed. Everybody that testified on the subject acknowledged that the mining lands were reserved by the owners for mining purposes — i.e., after annexation it will remain as vacant mining land. During oral argument the City of Little Rock candidly admitted that the mining lands did not fall into items 1, 2 or 3 of the statute, supra, for annexation purposes. The City insists that the mining lands qualify under items 4 and 5 of the statute, supra, for purposes of annexation. In its brief the City refers to the following testimony of Mr. C. V. Barnes, to-wit:
“A. Well, the city is interested in regulating and controlling mining for several reasons. One is that in a mining area, that area should be principally devoted to that activity, it should be reserved for the activity and currently, there is no control there and as a result there has been residential development, one of which was mentioned by others today in testimony, pop up in the middle of the mining area.
Q. What happens when that occurs?
A. Well, I can tell you the status it is in right now, they are both in bankruptcy.
Q. So no one gains?
A. No one gains, that’s right, because you’ve got depressed property so what is there that generated ad valorem taxes is affected, certainly the developer doesn’t gain because he doesn’t have a viable development and the people who may have purchased the property in the development unknowingly certainly have suffered a major loss.
Q. Do you forsee residential development will deteriorate and become sub-standard?
A. That would be the natural tendency.
Q. Thus becoming a burden on the local government?
A. Becoming a burden on whatever development is in that addition, yes sir. Now, by the same token, people in the mining industry or business are just as concerned because of what single family residential development in the area affects their outfit, so it’s a two way street.”
Likewise, with the flood lands the facts are virtually undisputed. No subdividing is permitted below the 100 year flood elevation now and if annexed to the City, the City will prevent any building below the 100 year flood elevation. No construction or fill would be permitted in the floodway proper by the City. The City itself has no plans for draining the flood lands but like everybody else is relying upon the U.S. Army Corps of Engineers. The Corps of Engineers has devised a number of plans for flood control, one of which has been adopted by the City but nobody is in a position to predict when and if any action will be taken. Even under the Corps of Engineers’ plan a substantial portion of the flood plains will remain below the flood stage that could only be used by the City for urban recreational use. The testimony of Mr. C. V. Barnes, an expert witness called by the City on the prospect of channelling Fourche Creek is as follows:
“A. Well, of course, remember you had about a four fingered question and we started to work on finger number one which we never did get down to the other three or four fingers. Remember this, that at some point in time, and you, I think asked me to explain to you what would happen at some time in the future, at some point in time, Fourche is going to be channelized and the Corps of Engineers will, or some other agency, will determine what the width of that channel is, but that channel will be fairly narrow compared to the flood plain as shown on this exhibit four, Plaintiff’s Exhibit 3, beg your pardon, so when that time comes, the area outside that channelization in all probability will be reclaimed and used. Now, the definition of value, as it’s been explained to me in the books, I don’t know whether Webster says this, is the present worth of future benefits, so when things, in other words, that’s the way people look at land is what I do today based on what I get tomorrow.
Q. That would be valuable in that sense by reason of their assessability to streams in the area.
A. Well, you know there’s no reason in my mind to assume that the people in Little Rock are more backward or less progressive than the people in Dallas, Texas. Now, it all gets to be when. I can’t answer that and I will admit that it is speculative because I can’t answer it, but at some point in time, maybe in my life time, maybe not, something is going to happen to Fourche Creek and you are going to see Fourche Creek bottoms which you are so concerned about now as the flood plain, having potential for development just like as happened in Dallas and it’s also been my observation over 50 odd years of making them, that if you want to see what’s going to happen in Little Rock, Arkansas ten or twenty years from now, you go look and see what’s happening in a community that is now the size of what Little Rock will be based on that growth that’s going to take place in the intervening time.”
Dwight Linkous, a member of the board of directors for the City of Little Rock, testified that the City had obligated itself to pay $75,000 over a three year period to some professional consultants, “Booze-AUen-Hamilton,” to make a study concerning the orderly growth of the City of Little Rock. Those consultants had recommended that the flood plains and mining areas be excepted from the City.
We agree with the City that to annex lands a municipality “must show that the lands to be annexed meet one of the five criteria set out in the first paragraph of the statute.” Furthermore, we note that the statutory criteria is taken almost verbatim from Vestal v. Little Rock, 54 Ark. 321 (1891). With respect to annexation of lands by a municipality, in Vestal v. Little Rock, supra, we said:
“. . . [W]e will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation.
1. That city limits may reasonably and properly be extended so as to take in continguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets or sewer, gas or water system, or to supply places for the abode or business of its residents of for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear that such value was enhanced on account of iheir adaptability to town use.
2. We conclude further that city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”
The annexation of lands for purposes of taxation only is prohibited by the Constitution of Arkansas, Art. 2 § 22 and Art. 2 § 23. See Waldrop, Collector v. Kansas City Southern Railway Company, 131 Ark. 453, 199 S.W. 369 (1917), Arnold v. McCarroll, 200 Ark. 1094, 143 S.W. 2d 35 (1940), Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W. 2d 631 (1970) and Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W. 2d 126 (1973). In the last mentioned case, we stated:
“Furthermore, as recently as Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W. 2d 631 (1970), (involving some of these same lands), we pointed out that where it is manifested that the owners of land taken into a city can derive no benefits from being placed within the incorporated limits, such action amounts to the taking of private property for public use in the form of taxation without giving any compensation.”
Other courts are in accord. See City of Olivette v. Grasler, (Mo.) 369 S.W. 2d 85 (1963).
While there is testimony that the City is using one or two abandoned bauxite pits for a dump, this cannot tolerably be said to constitute substantial evidence that the whole mining area — somewhere between 7.8 and 15.6 square miles — is adaptable to “prospective municipal uses.” This is especially so, when the City admits that the area is reserved by the owners for mining purposes only and that if the annexation is upheld, the City intends to zone the whole area for mining purposes, Furthermore, since the City acknowledges that the area is vacant, not held for use as municipal lots or to be sold for urban uses and that the same use will be made of the lands for mining purposes after annexation as before annexation, we fail to see how the City can logically contend that the lands “are needed for any proper municipal purpose such as the extension of needed police regulation.” The testimony of Mr. Barnes upon which the City relies falls far short of showing that the lands are adaptable for prospective municipal uses under item (5) of the statute, supra. To say that mining lands, already reserved and being used for mining purposes, should be zoned for mining purposes only, cannot be said to be substantial evidence that the lands “are needed for any proper municipal purposes such as for the extension of needed police regulation.” A city’s desire to zone vacant lands outside a city that do not derive a special value from their adaptability for city uses is not a needed police regulation for any proper municipal purpose, Vestal v. Little Rock, supra — otherwise the only limitation on annexation would be the state’s boundaries.
Since the erroneous inclusion of the mining lands voids the annexation in toto, City of Little Rock v. Findley, 224 Ark. 305, 272 S.W. 2d 823 (1954), it is not necessary for us to give a full discussion to the issue involving the flood plains. However, we point out that, on the record before us, the annexation of the total 12 square mile area is highly questionable in view of the following facts: (1) The lands in general cannot be subdivided or otherwise adapted to city purposes until Fourche Creek is channelized; (2) the channelization of Fourche Creek is acknowledged by the City’s expert witness; Mr. Barnes, to be speculative; (3) even after channelization of Fourche Creek there will remain a substantial acreage unsuitable for any city purpose or use other than a faint suggestion that they could be used for urban recreation — a use for which the City has no plans and no funds with which to acquire the lands.
Reversed and dismissed.
George Rose Smith and Hickman, JJ., dissent.