Cumnock v. City of Little Rock

• Decision Date: 04 May 1925
• Docket Number: (No. 348.)
• Citation: 271 S.W. 466
• Parties: CUMNOCK v. CITY OF LITTLE ROCK.
• Court: Arkansas Supreme Court

271 S.W. 466

CUMNOCK v. CITY OF LITTLE ROCK.

(No. 348.)

Supreme Court of Arkansas.

May 4, 1925.

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

Action by Frank Cumnock against the City of Little Rock to restrain issuance of bonds. Decree for defendant, and plaintiff appeals, Affirmed.

Isgrig & Dillon, of Little Rock, for appellant.

Rose, Hemingway, Cantrell & Loughborough and A. Boyd Cypert, all of Little Rock, for appellee.

McCULLOCH, C. J.

Proposed Amendment No. 11, prohibiting counties, cities, and towns from making contracts or allowances in excess of the revenues for the current fiscal year, was declared adopted under the decision of this court in Brickhouse v. Hill, 268 S. W. 865, and it contains a proviso authorizing counties, cities, and towns to issue bonds for funds to pay debts outstanding at the time of the adoption of the amendment. The proviso reads as follows:

"Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid."

Pursuant to this amendment, the city council of Little Rock passed an ordinance authorizing the mayor, city clerk, and board of public affairs to contract for the sale of bonds to secure funds with which to pay existing indebtedness. After the passage of the ordinance, notice was given for receiving competitive bids on March 31, 1925, for the issuance of bonds. Bids were received on the day mentioned, but there was an adjournment over to the next day, and additional bids were received and a contract was entered into for the sale of bonds. Appellant, as a citizen and taxpayer, instituted this action in the chancery court to restrain the performance of the contract by the issuance of bonds.

The General Assembly enacted an enabling statute putting the amendment in force in "any city of the first class which has taken proceedings and published notice of sale to issue bonds." Act No. 292, 1925. This statute contains what purports to be an emergency clause and was approved by the Governor on March 30, 1925, which, it will be observed, was after the passage of the ordinance by the city council authorizing the issuance of bonds and one day before the advertised day for receiving bids. The contention of appellant is that amendment No. 11 is not self-executing, that the emergency clause was not properly attached to the bill, and that an emergency was not sufficiently expressed in the clause, and that even if the statute went into full force and effect on the day it was approved by the Governor, the proceedings of the city council prior thereto were void.

The first question presented, and the one which we think is determinative of the present case, is whether or not the proviso in the amendment relating to the issuance of bonds by counties and municipalities is self-executing. We therefore confine the decision, so far as concerns the effect of the amendment, to that question alone.

In the case of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, we quoted from Judge Cooley the following test:

"A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." Cooley's Const. Lim. (7th Ed.) p. 121.

We decided in that case, in an analysis of a certain provision of the Constitution in regard to limitation upon salaries of public officers, that it was not self-executing. In the case of Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199, we held that the Initiative and Referendum Amendment adopted in 1910 was self-executing, and in reaching that conclusion the opinion quoted with approval Judge Cooley's test, the same as in Griffin v. Rhoton, supra. In addition to that, we quoted with approval the following language from the Supreme Court of Minnesota in Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626:

"The question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature—does it indicate that it was intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined from a consideration both of the language used and of the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed is fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing. * * *"

Applying those tests to the present case, we are of the opinion that the proviso in Amendment No. 11 is self-executing. Its language satisfies each of the above tests prescribed for a self-executing provision. It "supplies a sufficient rule by means of which...