Carter v. Cain

• Decision Date: 25 February 1929
• Docket Number: 186
• Citation: 14 S.W.2d 250,179 Ark. 79
• Parties: CARTER v. CAIN
• Court: Arkansas Supreme Court

14 S.W.2d 250

179 Ark. 79

CARTER v. CAIN

No. 186

Supreme Court of Arkansas

February 25, 1929

Appeal from Woodruff Chancery Court, Northern District; A. L Hutchins, Chancellor; reversed.

Reversed and remanded.

Ross Mathis, W. J. Dungan and J. F Summers, for appellant.

Roy D. Campbell, for appellee.

OPINION

MEHAFFY, J.

The appellants, who are taxpayers and residents of Woodruff County, began this suit in the chancery court against W. R. Gain, county judge, R. B. Keating, W. W. Rainey, Neudy Arnof, A. C. McGregor and Bill Rives, alleging that Cain was county judge and McGregor was the county judge-elect, and would assume the duties on January 1, 1929; that Bill Rives was the county clerk, and Keating, Rainey and Arnof were appointed commissioners and directed to prepare plans and let contract for the erection of a courthouse and jail at McCrory, Arkansas; that on November 30, 1928, said commissioners reported to the court that they had procured a lot and had prepared plans and specifications for a suitable courthouse and jail at McCrory, which plans were approved by the court, and said commissioners were directed to advertise for bids and let contract for the erection of a courthouse and jail; that the commissioners had employed an architect to draw plans, and were proceeding to receive bids and let the contract; that, if not enjoined, they would let the contract and incur further expenses.

Appellants alleged that the authorization of the contract amounted to an illegal exaction from the taxpayers of the county, and that the appropriation for the erection of said courthouse and jail and all the proceedings were void, for the reason that the appropriation of $ 5,000 per annum exceeded the revenue available from all sources after the payment of the necessary governmental expenses of the county, and that it was in violation of Amendment No. 11 of the Constitution of the State of Arkansas.

The complaint then shows the revenue and expenditures and probable revenue for the future and necessary expenses for the future, and alleges that they have no adequate remedy at law, and prays for an injunction preventing the issuing of any warrants or the payment of any claims, and to prevent the letting of the contract or the incurring any other expenses.

Constitutional Amendment No. 11 has been before this court several times, but Amendment No. 17, also involved here, was adopted by the people at the general election November 6, 1928, and has never been before this court for interpretation or construction. Amendment No. 17 reads as follows:

"Section 1. The power and right is hereby vested in the qualified electors of each respective county in this State, by a majority of said electors voting on the question, to authorize the construction, reconstruction or extension of any county courthouse or county jail, and to authorize the levy of a tax not to exceed one-half of one per cent. on the dollar of the valuation of all properties in such county subject to taxation, to defray the cost and expenses thereof or to take up any indebtedness existing at the time of the adoption hereof, incurred in building, constructing or extending any county courthouse or jail.

"Section 2. The county court of any county may, by proper order, duly entered of record, determine whether or not the necessity for any such construction, reconstruction, or extension exists, and, when such necessity is found to exist, said county court shall cause to be made and prepared such plans, specifications or estimates of cost of such contemplated improvements as may be proper for a reasonable understanding of the nature, extent and approximate cost thereof, and may employ an architect for said purpose, which said plans, specifications and estimates shall be filed in the office of the county clerk of such county, and remain and be held subject to the inspection of any and all persons interested.

"Section 3. Any and all such plans, specifications and estimates may, when considered, be rejected by the county court, and new ones, or alterations of the original ones, ordered to be made, and when such preliminary set of such plans, specifications and estimates is filed and shall meet the approval of said county court, an order approving the same shall be entered of record, and the court shall order and direct the question of the construction of such building or extension be submitted to the qualified electors of such county in the next general election held thereafter; provided, however, that if no general election for county and State officers will, under the law, be held within one year of the making of the said order, then the county court may, by order of record, call a special election in such county, to be held not less than 30 days nor more than 60 days thereafter, and shall name the date therefor. Such special election shall in all other respects be held as is now or hereafter may be provided by law for the holding and conducting of general elections, and it shall be and it is hereby made the duty of the sheriff of such county, by a proclamation duly made and published for the time and as provided by law, to give notice of the proper time and place of holding such election."

Section 4 provides the manner of holding the election and the duty of the election officers, and further provides that, if a majority votes for the improvement, the county court shall make an order showing the total vote for and total vote against such. It also provides that more than one building or improvement may be embodied in the proceedings, but each must be described so as to indicate to the electors what he is voting on, and there must appear on the ballot "For construction" and "Against construction;" and also appear on the ballot "For building tax," and "Against building tax."

Section 5 provides that, if a majority vote for the building and the tax, then the levying court may levy, in addition to all other taxes now authorized by law, a special building tax, not to exceed one- half of one per cent. on the dollar of the assessed valuation of the property, to pay for such improvements, or to provide a sinking fund for such purpose. This section also provides that, when the levy is once made, it shall continue in force from year to year and be extended on the taxbooks and collected until sufficient funds are collected to pay the cost of the improvement, or any bonds, notes, or interest thereon.

Section 6 provides that, when the tax has been voted and the amount levied, the county court may issue and sell interest-bearing negotiable bonds or notes, bearing interest not to exceed five per cent., to mature at such times as may be determined by the court or judge, and sell the same in such manner and upon such condition as the court may by order deem proper for the purpose of raising funds, etc. It also provides that the bonds shall not be sold for less than par or face value, and they are to be secured by the special tax levied for the purpose. After this is done, the amendment, in § 7, provides that the county court or the judge thereof shall proceed with the construction of such improvement.

It will be observed that the amendment was adopted on November 6, 1928, and the proceedings had by the county court and commissioners for the purpose of building a courthouse and jail were all had at a later date. That is, after the amendment was in effect.

There is no dispute about the amendment being in effect at the time the proceedings began, but the appellee contends that, when the building of a courthouse or jail is under consideration, the county court may adopt either one of two methods. It is insisted that, if the revenues of the county will permit, the court can order the improvement made by making appropriations and spreading same over a period of years; but that, if the revenues of the county will not justify this procedure, then an election may be called for the purpose of voting on the improvement and tax. In other words, it is insisted that, since the adoption of Amendment No. 17, a county has two distinct and unrelated methods of building a courthouse; one plan with additional taxes, the other without additional taxes. And it is insisted that there is nothing in Amendment No. 17 that repeals any powers conferred upon a county court or the quorum court by the Constitution before the adoption of this amendment.

The rule by which amendments to the Constitution are to be construed was stated by this court in Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656. The court said in that case, in construing the constitutional amendment known as the initiative and referendum:

"The amendment being the last expression of the popular will in shaping the organic laws of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a 'fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.' In the construction of its terms, and in the determination of its scope and effect, the court should follow the settled rules of interpretation."

The court in the above case also said: "The rules of construction applicable to statutes ordinarily apply with equal force to constitutions or amendments thereof, though some courts hold to even more restricted rules in the construction of provisions of the organic law."

A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to, be uniform. A...