Farrell v. Oliver

• Decision Date: 10 January 1921
• Docket Number: 87
• Citation: 226 S.W. 529,146 Ark. 599
• Parties: FARRELL v. OLIVER
• Court: Arkansas Supreme Court

226 S.W. 529

146 Ark. 599

FARRELL v. OLIVER

No. 87

Supreme Court of Arkansas

January 10, 1921

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

Decree reversed and cause remanded.

Reid Burrow & McDonnell and Gus Ottenheimer, for appellants.

1. Act 400, Acts 1919, is unconstitutional and void, and the court erred in sustaining the demurer. Art. 5, § 30 Constitution. The attempted appropriation is a part of and included in the general appropriation bill supposed to cover any ordinary expenses of the executive, legislative and judicial departments of the State, and the attempted appropriation is unconstitutional. The act No. 400, Acts 1919, for the maintenance of an industrial school is not an appropriation for the ordinary expense of the executive legislative and judicial departments of the State." The provision of the Constitution is mandatory. 6 R. C. L. 55. See, also, 27 Ark. 266, 281; 33 Id. 17; 103 U.S. 580; 12 C. J. 740; 93 Ark. 336. The appropriation here does not fall strictly within the ordinary expense of the three departments and it is violative of the Constitution and void. 1 Ark. 311; 12 Id. 101. The executive department is expressly defined in the Constitution. Art. 6, § 1. See, also, art. 4, § 16, Constitution; 110 N.E. 130; 32 P. 417; 14 Fla. 283; 40 N.E. 454; 67 Id. 28; 83 N.W. 72; 110 N.E. 130; 120 N.W. 116; 119 Ark. 314; 106 Ark. 506.

2. A taxpayer has the right to maintain a suit to enjoin the illegal expenditure of money of the public funds. 66 Ark. 82; 110 N.E. 130; 123 Ark. 253; Constitution, art. 16, § 13; 108 Ark. 306.

John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellee.

1. We do not as a general rule question a taxpayer's right to maintain a suit to enjoin the illegal expenditure of public funds, but we do question the necessity of invoking such right in this case.

The remedy by injunction is a summary, peculiar, extraordinary remedy, and ought not to be exercised except to prevent great and irreparable injury or mischief. In this case the great and irreparable mischief will be done when appellants are granted the relief sought. Failing to start proceedings two years ago when the appropriations were made, they should not be heard now to save a few thousand dollars. An injunction now would be against good conscience and work injustice. 14 R. C. L. 310, 435. The mere allegation of irreparable injury is not sufficient unless the facts are stated. 5 A. L. R. 916; 7 Id. 7685-6, 756.

2. The appropriation for a boys' industrial school in the general appropriation bill is sufficient, as the school is part of the executive branch of the government, and the items for improvement, salaries and contingent expenses are classed as the ordinary and necessary expenses of administration.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1917 made provision for two institutions designated respectively as the Boys' Industrial School of the State of Arkansas and the Girls' Industrial School of the State of Arkansas, and created a board of management for each of said institutions, the members thereof to be appointed by the Governor. The appropriations for the maintenance of these institutions at the legislative session of the year 1919 were embraced in the general appropriation bill, and appellants, who are residents of Pulaski County and tax payers, instituted this action in the chancery court of Pulaski County to restrain the State Auditor from drawing warrants on said appropriation and to restrain the State Treasurer from paying said warrants. Said appropriation of funds is attacked on the ground that the same was made in violation of the express provision of the Constitution, which reads as follows:

"The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State. All other appropriations shall be made by separate bills, each embracing but one subject." Art. 5, § 30.

The right of appellants to maintain this suit is challenged, but we are of the opinion that as citizens and tax payers of one of the counties of the State they can maintain an action to restrain the Auditor and Treasurer from paying out funds without legal appropriation thereof by the Legislature.

The Constitution (art. 16, § 13) provides that "any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever."

This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the tax payers and empowers any citizen to maintain a suit to prevent such misapplication of funds. Lee County v. Robertson, 66 Ark. 82, 48 S.W. 901; Grooms v. Bartlett, 123 Ark. 255, 185 S.W. 282. The provision quoted above refers, in express terms, to citizens "of any county, city or town," but the exactions from which a remedy is afforded are not those limited to counties or towns, and this provision of the Constitution is broad enough to afford a remedy against Statewide exactions which are illegal. Such is the effect of our decision in Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380.

There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as that referred to above, that a remedy is afforded in equity to tax payers to prevent misapplication of public funds on the theory that the tax payers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication. Fergus v. Russell, 277 Ill. 20, 110 N.E. 130.

Again, it is argued that appellants have waited until the end of the fiscal period is approaching and until the greater portion of the appropriated funds have been paid out by the State Treasurer, and that the attack on the validity of the appropriation is not made in good faith. These are considerations which do not appeal to the courts for the reason that the remedy of injunctive relief is not discretionary, but where available at all it is awarded as a matter of right. If, therefore, it be found that the appropriation is invalid, there is no alternative other than to grant the relief restraining the State officers from paying out the funds. We need not search for the reason upon which the constitutional requirement was based, for the mandate must be obeyed as written.

This brings us to the main question in the case, whether or not the appropriation for the institution referred to can lawfully be embraced in a general appropriation bill. If it can not be so...