Cone v. Hope-Fulton-Emmett Road Improvement Dist.

• Court: Arkansas Supreme Court
• Writing for the Court: Wood
• Citation: Cone v. Hope-Fulton-Emmett Road Improvement Dist., 169 Ark. 1032, 277 S.W. 544 (Ark. 1925)
• Decision Date: 07 December 1925
• Docket Number: (No. 38.)
• Parties: CONE, State Auditor, v. HOPE-FULTON-EMMETT ROAD IMPROVEMENT DIST.

277 S.W. 544

169 Ark. 1032

CONE, State Auditor, v. HOPE-FULTON-EMMETT ROAD IMPROVEMENT DIST.

(No. 38.)

Supreme Court of Arkansas.

December 7, 1925.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by the Hope-Fulton-Emmett Road Improvement District against J. Carroll Cone, State Auditor, for an injunction in which certain Road Improvement Districts of Fulton County intervened. From a decree for plaintiff and the interveners, defendant appeals. Affirmed.

H. W. Applegate, Atty. Gen., and J. S. Abercrombie, Asst. Atty. Gen., for appellant.

U. A. Gentry and O. A. Graves, both of Hope, and R. W. Robins, of Conway, for appellee.

WOOD, J.

The General Assembly of 1925 passed an act No. 147, approved March 7, 1925, amending section 21 of Act No. 5 of the Acts of the Extraordinary Session of 1923, approved October 10, 1923, commonly known as the Harrelson Law. By the amendment section 21 is made to read as follows:

"The state highway commission shall, as soon as possible, ascertain the amount and dates of maturities of the principal of the valid, unmatured bonds outstanding on January 1, 1924, that have been issued by each road improvement district in the state at the time of the passage of this act for the purpose of improving the said public roads in the state, and which mature January 1, 1924; and thereafter in each year, beginning with the year 1924, as soon as sufficient funds are available for the purpose shall allot the sum of $3,000,000.00 or so much thereof as is available in the treasury by July 1st, to the respective counties of the state on the same basis that the population of each county bears to the population of the state of Arkansas as shown by the last official United States census. Each county's portion thus set aside shall be paid by the treasurer of the state in the manner and for the purposes specified for each county."

Then follows the classification of certain counties, naming them, and designating the proportion in which the state highway fund allotted to them shall be used in the payment respectively of bonds and interest coupons, and the proportion of said amount to be paid into the county highway improvement fund. Following this classification and apportionment of the funds allotted to the respective counties, the act provides methods for the distribution and use of the funds apportioned.

Section 2 of the act is as follows:

"All unallotted funds now on hand shall be distributed and paid out in the proportions and for the purposes as above set forth, and the state highway commission, the county courts of the various counties and the commissioners of all said road improvement districts shall make all necessary and proper orders to carry into effect the objects and purposes of this act."

Section 3 of the act is as follows:

"All laws and parts of laws in conflict herewith be, and the same are hereby repealed and this act shall take effect and be in force from and after its passage."

This action was brought by the appellee against the appellants, the auditor, state treasurer, and state highway commission. In its complaint the appellee set up that it is a road improvement district organized under Act 153 of the Acts of 1919, approved March 1, 1919; that under the provisions of section 21 of the Harrelson Law, as amended by Act 147 of the Acts of 1925, supra, it is the duty of the state highway commission to allot on July 1, 1925, the sum of $3,000,000, or so much of that sum as is available in the state treasury by that date, to the respective counties of the state on the same basis that the population of each county bears to the population of the state as shown by the last official United States census, and that the amount set aside to Hempstead county should be paid by the treasurer of the state as follows: 50 per cent. to the county highway improvement fund; 50 per cent. for the payment on bonds and interest coupons as provided under Act 147, supra, making the amount to which Hempstead county is entitled when so allotted the sum of $54,105, and that of this amount, when properly apportioned under the law, the appellee is entitled to $9,857.12. The appellee alleged that, unless the appellants' officers, above designated, were restrained, they would pay to the appellee district only one-half the amount to which it was entitled, and there would be paid to the county highway fund an amount greatly in excess of the amount to which it was entitled under the law. The appellee prayed that the appellants be restrained from paying the funds due it into the county highway improvement fund of Hempstead county, and that they be required to certify the amount and issue warrants and pay to the appellee the amount due it as provided by law.

Certain road improvement districts of Faulkner county intervened, and also set up Act 147, supra, and asked that they be allotted the amounts apportioned to them on July 1, 1925, under section 21 of Act No. 5, as amended by Act 147, supra, as prayed in the complaint of the Hope-Fulton-Emmett road improvement district. The appellants demurred to the complaint on the ground that it did not state a cause of action. The court overruled the demurrer, and the appellants elected to stand thereon. Whereupon the court entered a decree granting the relief prayed for in the appellee's complaint and the interventions. From that decree is this appeal.

1. It will be observed that Act 147, supra, has no emergency clause. It therefore went into effect 90 days after the adjournment of the Legislature, which was June 10, 1925. Notwithstanding the act went into effect on that day, the Attorney General contends that when the provisions of the amendatory act are considered in connection with the provisions of Act No. 5, approved October 10, 1923, it was not the intention of the Legislature to affect the distribution of the funds which should be made in July, 1925, but that the first distribution to be made of the funds under Act 147 could only take place in July, 1926. The Attorney General argues that this is true, for the reason that section 23 of the Harrelson Law provides the...