Gaster v. Dermott-Collins Road Improvement District

• Decision Date: 22 January 1923
• Docket Number: 100
• Citation: 248 S.W. 2,156 Ark. 507
• Parties: GASTER v. DERMOTT-COLLINS ROAD IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

248 S.W. 2

156 Ark. 507

GASTER v. DERMOTT-COLLINS ROAD IMPROVEMENT DISTRICT

No. 100

Supreme Court of Arkansas

January 22, 1923

Appeal from Chicot Chancery Court; E. P. Toney, special chancellor reversed.

Decree reversed and cause remanded.

Golden & Golden, for appellant.

The act in question has never become operative because the election called for the approval thereof was unauthorized and void. 104 Ark. 583; 110 Ark. 528; 117 Ark. 266; 151 Ark. 369. The commissioners had no right to change the plans and specifications after the petitions were filed. 150 Ark. 379 230 S.W. 11; 135 Ark. 102; 120 Ark. 277; 142 Ark. 509; 133 Ark. 491.

John Baxter, for appellee.

Henry & Harris, amici curiae.

WOOD J. MCCULLOCH, C. J., dissenting. SMITH, J., concurs.

OPINION

WOOD, J.

This is an action by the appellant, a resident taxpayer in Dermott-Collins Road Improvement District, against the district and its commissioners to restrain them from collecting assessments, selling bonds, and from proceeding with the construction of the improvement for which the district was created. The district and its commissioners will hereafter be called appellee.

The appellant, after alleging that he is a landowner and taxpayer within the boundaries of the district, set up that the appellee was attempting to collect the first installment of assessment of benefits that had been levied by the appellee against his land. Appellant challenged the authority of the appellee to collect the assessment on the following grounds, to wit: "(1). The act creating the district has never become operative. (2). The district has no right to spend more than $ 200,000 in the construction of the road. (3). If the plans and specifications are changed, the assessments already made will be void."

After a consideration of the record the conclusion we have reached makes it unnecessary to consider any but the first ground.

Appellee district was created by act No. 240 of the extraordinary session of the General Assembly of the State of Arkansas, approved February 20, 1920. The last two sections of the act are as follows:

"Sec. 36. This act shall not become effective until the same has been approved by a majority of the qualified electors residing within the district and voting at a special election to be called by the chancery judge of the Second Chancery District of the State of Arkansas. Said chancery judge shall have full power to call said election on a day to be fixed by him, and he shall designate the polling precincts, appoint judges and clerks, and make such other orders as are necessary for the proper conduct of the election. Returns from said election shall be presented to said chancery judge within three days after said election, and any contest of the election shall be heard before him, provided same is filed within ten days after the election, and his certificate of the return of the election filed with the chancery clerk of Drew and Chicot Counties shall be conclusive proof upon all parties as to the result of the election."

"Sec. 37. All laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after its adoption at the special election hereinbefore referred to."

It will be observed that the emergency clause is not attached to the act.

Under article 5, § 1 of the Constitution of the State of Arkansas as amended by Constitutional Amendment No. 7 (Crawford & Moses' Digest, p. 131) and put into effect by act No. 2 of the General Assembly of the State of Arkansas, approved June 30, 1911, no act becomes operative, unless the emergency clause is attached thereto, until ninety days after the adjournment of the General Assembly. "All legislative enactments except those necessary for the immediate preservation of the public peace, health and safety, are subject to the operation of the initiative and referendum and do not go into effect until the expiration of ninety days after final adjournment of the Legislature." Ark. Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199; Amend. No. 10, digested as Amend. No. 7, Crawford & Moses' Digest, supra; Fenolio v. Sebastian Road Dist., 133 Ark. 380, 200 S.W. 501. Until the expiration of such time, the voters, under the referendum clause of the Constitution, had the power to refer the act to the people as a whole for approval or rejection thereof at the next general election. Crawford & Moses' Digest, p. 131; Const. article 5, § 1, and amend. No. 7; Thompson v. State, 151 Ark. 369, 236 S.W. 608. See also Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656; Tomlinson Bros. v. Hodges, 110 Ark. 528, 162 S.W. 64; Hodges v. Board of Imp., 117 Ark. 266, 174 S.W. 542.

It is conceded by counsel for the appellee that the election under which the act creating the district was to become operative was held on March 27, 1920. This election was without authority of law and therefore void, because at the time it was held the act authorizing such an election itself had not become a law. Since the act itself which authorized the people to approve the same by an election did not go into effect until after such election, it is manifest that the chancery judge had no authority under the act to call the election for March 27, 1920, and that the election held under such call was premature and void. Van Hook v. Wallace, 143 Ark. 203, 220 S.W. 37. In Thompson v. Trice, 145 Ark. 143, 223 S.W. 367, we held that "the Legislature cannot delegate to another its power to enact laws, but may make the enforcement of the law dependent upon a condition or contingency. The law was made by the Legislature to become operative upon condition of its adoption by a majority of the qualified voters in the district." In that case the constitutionality of the act now under review was challenged; also the constitutionality of the act and the validity of the assessments thereunder were attacked in the recent case of Bulloch v. Dermott-Collins Road Imp. Dist., 155 Ark. 176, 244 S.W. 327. But the issue here raised was not drawn to the attention of the court in those cases.

In Fenolio v. District, supra, we had under review an act creating an improvement district and containing provisions for an election to be held within two years from the passage of the act for the approval of the act by the people of the district. In that case the court said: "The act was approved February 26, 1913, but it did not declare the existence of an emergency, and therefore went into effect ninety days after the adjournment of the Legislature, according to the referendum clause of the Constitution."

This court cannot take judicial knowledge of the time when elections are held under special acts of the Legislature. Therefore, since our attention was not called to the time when the election was held for the approval of the act now under review by the people of the district, the former cases in which we upheld the validity of the act are...