Dickinson v. Edmondson

• Decision Date: 12 July 1915
• Docket Number: 111,110
• Citation: 178 S.W. 930,120 Ark. 80
• Parties: DICKINSON, STATE AUDITOR v. EDMONDSON. SPRADLIN v. DICKINSON, STATE AUDITOR
• Court: Arkansas Supreme Court

178 S.W. 930

120 Ark. 80

DICKINSON, STATE AUDITOR v. EDMONDSON.

SPRADLIN v. DICKINSON, STATE AUDITOR

No. 111, 110

Supreme Court of Arkansas

July 12, 1915

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellants; J. Bernhardt, D. A. Bradham, Coleman & Lewis and Wallace Townsend, of counsel.

1. The act is not unconstitutional on the ground that it seeks to divert common school funds to a purpose other than that for which they were raised. High schools are common schools within the contemplation of the act, a part of the common school system of the State. 25 Am. & Eng. Enc. of L. (2 ed.) 8; 35 Cyc. 812; 123 Mass. 304; 30 Neb. 815, 47 N.W. 284; 61 Kan. 792, 33 P. 654.

2. The act does not conflict with section 29, article 5 Constitution. The facts in the case of Moore v. Alexander, 85 Ark. 171, and in this case, are so different that the ruling in that case does not control in this. See article 14 of the Constitution. Section 3 of that article makes a constitutional levy and appropriation of taxes for school purposes. Nothing is left to the discretion of the Legislature, either as to the levy or the appropriation of the tax, and by both sections 2 and 3 of the article it is expressly provided that the money raised for the common school fund shall never be appropriated to any other purpose than that for which raised. Section 4 of article 14 gives supervision of the schools, and the execution of the laws to such officers as may be provided by the General Assembly--thereby leaving the details of the disbursement of the school fund to such officers as might be provided by the Legislature. See Kirby's Digest, § 7521: Act No. 328, Acts 1911.

This case is controlled by section 12 of article 16 of the Constitution, and not by section 29 of article 5, because this is a levy and appropriation made, not by the Legislature, but by the Constitution. While the act in question uses the word appropriation, it is not in fact an appropriation. It is nothing more than an apportionment of a fund that has already been appropriated. 93 Ark. 503, 512.

The fact that the school fund is levied and appropriated by the Constitution makes it an appropriation "by law" within the terms of section 12, article 16, supra. 8 L. R. A. 403; 4 Md. 89; 24 Idaho 26, 132 P. 109.

W. O. Edmondson, pro se.

1. The act should be declared unconstitutional because it seeks to divert funds to other uses than that for which they were levied and collected. It contains many provisions incompatible with the well established understanding and definition of "common schools" and contrary to the express provisions of our Constitution. 13 Barb. 400-410; 94 Mass. 500-508; 20 L. R. A. (N. S.) 1033; Act No. 238, Acts 1911, §§ 4, 7, 8, 10; article 14, section 3, Constitution.

2. The act is void because it seeks to make a continuing appropriation. This tax is in no sense a constitutional levy nor a constitutional appropriation. This case is controlled by the law announced in the case of Moore v. Alexander, 85 Ark. 171. The Constitution of the State is restraining, not enabling. 27 Ark. 629. Its provisions are not self-executing. 24 Ark. 500. See also Cooley's Const. Lim. (4 ed.), 101.

Allyn Smith, for appellant Spradlin.

The State Treasurer has no authority to pay out money that may be in the treasury under our common school law, without an appropriation by the Legislature. 85 Ark. 171, 178; 93 Ark. 503; 13 Kan. 220-227; 47 Kan. 119.

MCCULLOCH, C. J. KIRBY, J., concurs in No. 3719. KIRBY, J., dissents in No. 3756.

OPINION

MCCULLOCH, C. J.

We have considered both of these cases together, as they involve kindred questions which may be covered by one general discussion. At any rate, they pertain to the same subject--the common school fund of the State--and the consideration of each case involves, to some extent, the other.

In the first case, W. O. Edmondson and J. G. Albright, two citizens and taxpayers of the State, seek to enjoin the Auditor and Treasurer from issuing warrants and paying out common school funds of the State pursuant to an act ^[*] of the General Assembly of 1911, appropriating the sum of $ 50,000 to be used in aid of high schools and in providing normal training departments to said schools. The chancellor granted the relief prayed for by the plaintiffs, and the Auditor and Treasurer have appealed.

In the other case, B. A. Spradlin, a citizen and taxpayer of the State, seeks to restrain the Auditor and Treasurer from disbursing the common school fund of the State on the ground that there has been no appropriation made by the Legislature authorizing such disbursements. The chancellor denied the relief sought in that case, and rendered a decree dismissing the complaint for want of equity, from which decree the plaintiff has prosecuted an appeal.

The principal contention in both of the cases is that the following provision of the Constitution applies to the common school fund: "No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriation shall be for a longer period than two years." Section 29, article 5, Constitution of 1874.

The General Assembly of 1913 did not pass any bill making appropriation of the school funds of the State. In fact, it may be said, as a part of the history of the legislation of the State, that it has never been deemed necessary by the law-makers to make an appropriation of school funds, and that has never been done. It is insisted now, for the first time, that the provision of the Constitution referred to applies to the school funds, and that none of the funds can be paid out in the absence of a specific appropriation thereof by the General Assembly. Counsel, asserting that view, rely upon the case of Moore v. Alexander, 85 Ark. 171, 107 S.W. 395, where we held that the Capitol fund collected pursuant to a special tax levied for the purpose of building a State Capitol could not be paid out unless there had been a biennial appropriation specifying the amount to be used. It was insisted in that case that the clause of the Constitution referred to above applied only to the ordinary expenses of the State Government to be paid out of the general revenue, and that it had no application to the levy of a special tax for a specified purpose such as building the State Capitol. We refused to recognize that distinction, and held that the provision was more general in its nature than that construction would warrant, and applied at least to all revenues raised for State purposes. We are unwilling to recede from the position taken in that case, for it is plain that the framers of the Constitution intended to place an unmistakable limitation upon the authority of public officials in paying out public funds, and to declare that all the State funds which are within the purview of that provision must be held in the treasury, until a specific appropriation thereof has been made by the Legislature. The power of the General Assembly with respect to the public funds raised by general taxation, is supreme, and no State official, from the highest to the lowest, has any power to create an obligation of the State, either legal or moral, unless there has first been a specific appropriation of funds to meet the obligation. The Constitution provides, too, that no appropriation shall be for a longer period than two years, and thus a period is fixed over which the law-makers hold complete control over the purse-strings of the State.

But the question of the application of this provision of the Constitution to the common school fund is another thing. The provision referred to above is contained in article 5, which deals with the powers and duties of the General Assembly. The Constitution, in another article (14), deals entirely with the school tax, and that subject was by the framers of the Constitution lifted entirely outside of the scope of any other specific regulation. It is worth while to copy that article in full, and it is as follows:

"Section 1. Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good Government, the State shall ever maintain a general, suitable and efficient system of free schools, whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.

"Sec. 2. No money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.

"Sec. 3. The General Assembly shall provide by general laws for the support of common schools by taxes, which shall never exceed in any one year two mills on the dollar on the taxable property of the State, and by an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years. Provided, the General Assembly may by general law authorize school districts to levy by a vote of the qualified electors of such district a tax not to exceed five mills on the dollar in any one year for school purposes. Provided, further, that no such tax shall be appropriated to any other purpose nor to any other district than that for which it was levied.

"Sec. 4. The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly."

Section 3 has been amended so as to increase the State school tax from two...