Foster v. Jefferson County Quorum Court

• Decision Date: 19 June 1995
• Docket Number: No. 94-776,94-776
• Citation: 321 Ark. 105,901 S.W.2d 809
• Parties: , 321 Ark. 116-A Jack FOSTER, Appellant, v. JEFFERSON COUNTY QUORUM COURT, Appellee.
• Court: Arkansas Supreme Court

Page 809

901 S.W.2d 809

321 Ark. 105, 321 Ark. 116-A

Jack FOSTER, Appellant, v. JEFFERSON COUNTY QUORUM COURT, Appellee.

No. 94-776.

Supreme Court of Arkansas.

June 19, 1995.

Opinion Granting Rehearing July 17, 1995.

David O. Bowden, Little Rock, for appellant.

Bart Mullis, Pine Bluff, for appellee.

DUDLEY, Justice.

The Jefferson County Quorum Court adopted an ordinance providing for the levy and collection of a one percent sales tax to be used for all purposes. The levy and collection, however, were conditioned upon approval of a majority of the electors voting in the November 1993 election. The voters approved the tax. On December 28, 1993, appellant filed this declaratory judgment suit asking the circuit court to rule that the tax constituted an illegal exaction because: (1) the one percent tax violated article 16, section 9, of the Constitution of Arkansas; (2) the ordinance calling the election was introduced improperly; (3) the ordinance levying the tax did not include a provision for a rebate as required by statute; and (4) the Jefferson County Quorum Court failed to follow the requirements of Ark.Code Ann. § 14-14-905(b) (1987). The Jefferson County Quorum Court answered and moved for summary judgment. Appellant filed a cross-motion for summary judgment. The circuit court granted Jefferson County's motion for summary judgment. We reverse and remand.

I.

Article 16, section 9 of the Constitution of Arkansas, in the material part, provides: "No county shall levy a tax to exceed one-half of one percent for all purposes." Id. (emphasis added).

The meaning of the provision is clear and certain. One-half of one percent for all purposes is the limit. When the meaning of a constitutional provision is certain, courts will apply that meaning. See Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968). Jefferson County, in its answer, admitted that the tax was for all purposes. The certain meaning of article 16, section 9 is that a one percent sales tax for all purposes is unconstitutional.

Jefferson County asks us to construe the provision to allow the tax to remain in effect. We decline. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Similarly, courts will not resort to extrinsic facts to alter the plain meaning of the language used. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); see also Kervin v. Hillman 226 Ark. 708, 292 S.W.2d 559 (1956); Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921).

The amicus curiae brief filed by the Association of Arkansas Counties states that a fiscal emergency will result in many of the counties if we hold this tax to be an illegal exaction. We fully appreciate the argument, but it is not persuasive. The issue is one not of expediency, but one of constitutional law. See Gipson v. Maner, 225 Ark. 976, 287 S.W.2d 467 (1956).

II.

Circuit court has subject-matter jurisdiction of illegal exaction suits. Jones v. Clark, 278 Ark. 119, 644 S.W.2d 257 (1983). Chancery court also has subject-matter jurisdiction of illegal exaction suits. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46 (1967). We have held that subject-matter jurisdiction is concurrent; therefore, the issue is one of propriety, not one of subject-matter jurisdiction, and unless the propriety of filing an illegal exaction suit is raised by the parties, we will not consider it. Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987). The issue of propriety was not raised by the parties; thus, we do not consider it.

The reason we have often held that circuit court has subject-matter jurisdiction of an illegal exaction suit is that Article 7, section 11, provides: "The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution." The section means that unless a cause of action is confided by the constitution exclusively to another court, it belongs exclusively, or concurrently, in the circuit court. State v. Devers, 34 Ark. 188 (1879). We have said that it means "[a]ll unassigned jurisdiction under the Constitution is vested in the circuit court...." Patterson v. Adcock, 157 Ark. 186, 248 S.W. 904 (1923). In discussing unassigned jurisdiction of the circuit court in illegal exaction cases, we have written:

After hearing the matter, the chancellor expressed grave concern about the jurisdiction of the chancery court to act in the matter, as well he might. In view of the disposition we make of the case, however, we need not concern ourselves too much with the serious doubt about the jurisdiction of the chancery court over this action, which basically would appear to fall within the jurisdiction of the circuit court under Art. 7, Sec. 14.

Mackey v. McDonald, 255 Ark. 978, 504 S.W.2d 726, 730 (1974).

Article 16, section 13, the illegal exaction section, does not specify the court in which the taxpayer's cause of action may be asserted. Thus, subject-matter jurisdiction is unassigned; accordingly, we have held that "an [illegal exaction] action in the circuit court for declaratory judgement is well chosen." Jones v. Clark, 278 Ark. 119, 644 S.W.2d 257 (1983).

In addition, the public policy expressed by the General Assembly contemplates concurrent jurisdiction. Section 26-35-902 of the Arkansas Code Annotated provides in pertinent part:

It is the public policy of this State that circuit and chancery courts may, in meritorious litigation brought under the Arkansas Constitution, Article 16, § 13, in which the court orders any county, city, or town to refund or return to taxpayers moneys illegally exacted by the county, city, or town, apportion a reasonable part of the recovery of the class members to attorneys of record and order the return or refund of the balance to the members of the class represented.

Ark.Code Ann. § 26-35-902(a) (Supp.1993) (emphasis added); see also Harrison v. Norton, 104 Ark. 16, 148 S.W. 497 (1912).

Circuit court may have exclusive subject-matter jurisdiction of two kinds of illegal exaction, but that is an issue we need not decide. We only note the issue. In Jackson v. Munson, 288 Ark. 57, 701 S.W.2d 378 (1986), we said:

While it is true we have been liberal in permitting illegal exaction suits, see e.g., Nelson v. Berry, 242 Ark. 273, 413 S.W.2d 46 (1967), we have held that an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1967) [ (1964) ].

Id. at 58, 701 S.W.2d at 379.

In this case the taxpayer asked the circuit court to go behind the election and issue a declaratory judgment that the election was unconstitutional and void. The underlying matter may be the validity of the election adopting the tax, and although this is not an election contest case, the subject-matter jurisdiction of the underlying matter, the election, is exclusively in circuit court. Parsons v. Mason, 223 Ark. 281, 265 S.W.2d 526 (1954). However, because this suit was filed in circuit court, there is no need for us to decide if subject-matter jurisdiction was exclusively in circuit court. In addition, a party might be entitled to demand a jury trial in some illegal exaction suits.

The dissent to this part of the majority opinion would hold that "the circuit court was wholly lacking in jurisdiction" to decide this case; yet, it cites no case holding that circuit court is without subject-matter jurisdiction of illegal exaction suits. Instead, it states that subject-matter jurisdiction of this case is exclusively in county court because of Article 7, section 28. The opinion overlooks the often discussed distinction between a suit to prevent an illegal exaction on the ground that the tax itself is illegal or unauthorized and a suit to prevent the collection of a tax that is lawful and authorized but is being collected in some erroneous manner. A suit to prevent the collection of an illegal or unauthorized tax is an illegal exaction suit, and subject-matter jurisdiction is concurrently in circuit and chancery court. A suit to prevent the collection of a lawful or authorized county tax that is erroneously assessed or erroneously collected is the kind of suit that belongs exclusively in county court. Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990).

The case primarily relied on by the dissenting opinion clearly recognizes this distinction. That case, Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991), involved the county property tax. It was not questioned that the county property tax was a valid and lawful tax. Rather, the taxpayer questioned the amount of his lawful property tax because only 40% to 45% of the property in the county had been reassessed. In holding that county court had exclusive subject-matter jurisdiction of the case because there was no contention that the tax itself was illegal or unauthorized, we wrote: "Mr. Frost is not contending that his assessment is 'illegal or unauthorized' but that there is a procedural flaw. We discussed the distinction in the McIntosh case. See also Burgess v. Four States Mem. Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971)." Id., 305 Ark. at 359, 807 S.W.2d at 470.

III.

Article 16, section 13 of the Constitution of Arkansas confers upon any citizen the right to institute a suit to protect against an illegal exaction. The original complaint was for a judgment declaring that the election was "null and void" and that the tax constitutes an illegal exaction. The circuit court erred in failing to declare that the tax constitutes an illegal exaction. We reverse and remand for proceedings consistent with this opinion.

HOLT, C.J., and GLAZE and BROWN, JJ., dissent to ...