Hampton v. Hickey

• Decision Date: 07 December 1908
• Citation: 114 S.W. 707
• Parties: HAMPTON v. HICKEY et al.
• Court: Arkansas Supreme Court

Page 707

114 S.W. 707

HAMPTON v. HICKEY et al.

Supreme Court of Arkansas.

December 7, 1908.

Appeal from Dallas Chancery Court; E. O. Mahoney, Chancellor.

Suit for injunction by G. M. Hampton against C. B. Hickey, President of the Board of Directors of the School District of Fordyce, and another, to restrain the issuance of certain school district bonds. From a decree for defendants, plaintiff appeals. Affirmed, and temporary injunction, granted subsequent to the rendition of decree, ordered dissolved.

The complaint alleges that G. M. Hampton, the plaintiff, is a citizen and taxpayer of the city of Fordyce, which was organized into a special school district under the laws of the state of Arkansas providing for the organization of special school districts coextensive with the territory of any incorporated city or town, that the Legislature, by an act approved April 26, 1905 (Laws 1905, p. 507), authorized said special school district to borrow $15,000, but that it has undertaken to borrow $25,000, and unless restrained will issue bonds for that sum, secured by a mortgage upon the property of the district, and such bonds may get into the hands of an innocent holder. He therefore prays for an injunction. The defendants answered, admitting the allegations of the bill, and alleging that on April 2, 1908, all members of the board being present, it was found that it needed money to erect new school buildings, and that buildings adequate to the needs of the district would cost $25,000, and the board thereupon resolved to issue bonds for that amount, secured by a mortgage on the real property of the district and a pledge of its revenues, and adopted resolutions providing the form of the bonds, the rate of interest thereon, and the form of the mortgage, and directed the defendants to execute it. They deny that the school district is authorized to borrow only $15,000, but say that at the time the special act described in the complaint was passed the school board could borrow money and mortgage the property of the district only after the submission of the question to the electors of the district at an annual school election, and the object of the special act was to enable the school directors of this district to issue bonds and execute a mortgage without such election; but, after said special act was passed, the Legislature passed an act applicable to all special school districts, authorizing the board of directors of such special school districts to borrow money and mortgage the real property of the district without submitting the question to the electors and leaving the amount to be borrowed to the discretion of the board. Evidence was adduced to show that the board of school directors passed the resolution referred to in the answer, and that it will require $25,000 to construct the buildings needed in the district; that two buildings are needed, one for white and the other for colored children. The chancellor found that the special school district of Fordyce had the power to borrow the $25,000 under the general act of May 6, 1905 (Laws 1905, p. 651), and that the special act was repealed by it. Therefore a decree was entered denying the prayer for injunction and dismissing the complaint for want of equity. Plaintiff has duly prosecuted an appeal to this court.

T. B. Morton, for appellant. Rose, Hemingway, Cantrell & Loughborough, for appellees.

HART, J. (after stating the facts as above).

On the 26th day of April, 1905, the Legislature passed an act authorizing the special school district of Fordyce in Dallas county, Ark., to borrow money to build and equip a suitable school building for said district, to mortgage any part or all of the real property of said district, and to issue bonds, notes, or other evidences of indebtedness, not to exceed the sum of $15,000, under such conditions as to time and manner of payments as the school directors of said district may prescribe. Acts 1905, p. 508. On the 6th day of May, 1905, at the same session, the Legislature passed an act which provided "that all special school districts in Arkansas are hereby authorized and empowered, for the purpose of raising funds for the erection and equipment of necessary school buildings, to borrow money and to mortgage the real property of the district as security therefor, under such conditions and regulations as to time, amount, rate of interest and manner of payment as the board of school directors of said school district shall prescribe, and to renew and extend from time to time any evidences of indebtedness or mortgages, or both, issued or made by virtue hereof." Acts 1905, p. 651.

The sole issue raised by the appeal is whether the first is repealed by the passage of the second act. The general act does not expressly repeal the special act. The general rule on the subject of repeal by implication is that a general act was not intended to repeal a prior special act. St. L. S. W. Ry. Co. v. Grayson, 72 Ark. 119, 78 S. W. 777; Chamberlain v. State, 50 Ark. 132, 6 S. W. 524. But as stated by the author in Lewis' Sutherland, Statutory Construction, vol. 1, par. 276: "There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested...