Henderson v. Russell

• Citation: 589 S.W.2d 565,267 Ark. 140
• Decision Date: 13 November 1979
• Docket Number: No. 79-232,79-232
• Parties: Edwin HENDERSON et al., Appellants, v. Herbert B. RUSSELL et al., Appellees.
• Court: Supreme Court of Arkansas

Page 565

589 S.W.2d 565

267 Ark. 140

Edwin HENDERSON et al., Appellants, v. Herbert B. RUSSELL et al., Appellees.

No. 79-232.

Supreme Court of Arkansas, In Banc.

Nov. 13, 1979.

R. H. "Buddy" Hixson, Paris, for appellants.

Witt & Donovan, Dardanelle, for appellees.

PURTLE, Justice.

This case arises from the Logan County (Northern District) Circuit Court's holding that an ordinance by the quorum court prohibiting nepotism by elected county officials was a valid and properly adopted ordinance. The trial court reviewed the case on a petition for writ of certiorari.

Appellant challenges the trial court's decision on grounds that the quorum court had no authority to pass the ordinance; that it was not passed or published according to law; and that the emergency clause was ineffective. We hold the trial court was correct on all alleged errors, except the emergency clause.

Five or six days prior to its meeting on December 11, 1978, the county clerk mailed the members of the quorum court an agenda which stated nepotism was a matter to be considered. The quorum court had previously passed Ordinance No. 15 on the same subject. At the meeting on December 11, 1978, the quorum court adopted Ordinance No. 20 which was the same as Ordinance No. 15 except for a change in the title and repealing clause. The journal of the proceedings of the Logan County Quorum Court reflects Ordinance No. 20 was called for discussion and one member moved to suspend the rules and place Ordinance No. 20 on the calendar for action on The case was submitted to the court on stipulation of the facts and briefs. The trial court determined the quorum court had subject matter jurisdiction, and the ordinance was passed and published according to law.

that date. The motion was seconded and the vote to suspend the rules was unanimous. The ordinance was then read for the first time upon motion and second. The rules were suspended for a second and third reading of the ordinance, and it was then passed unanimously. The emergency clause was read only one time before the vote, and it passed unanimously. This session of the quorum court was on a Monday night and the first publication was made in the local weekly newspaper on December 18, 1978. Both the ordinance and proof of publication were included in the record. The ordinance did not have the word "title" written on it, but it did contain a title. The questioned ordinance had these words following the title: "BE IT ORDAINED BY THE LOGAN COUNTY QUORUM COURT." The county judge approved the ordinance on December 14, 1978.

Amendment No. 55 to the Constitution of the State of Arkansas states:

§ 1. Power of quorum court. (a) A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.

Ark.Stat.Ann. § 17-3801 (Supp.1979) states:

As provided by Amendment No. 55, Section 1, (a) of the Arkansas Constitution, a county government acting through its Quorum Court may exercise local legislative authority not expressly prohibited by the Constitution or by law for the affairs of the county. . . .

We do not find any provision in the constitution nor any law enacted by the General Assembly to prohibit a quorum court from enacting nepotism statutes or ordinances. Therefore, we hold the quorum court had the authority to approve this legislation.

Appellants contend the ordinance was not properly passed nor published according to law. Ark.Stat.Ann. § 17-4003 (Supp.1977) states:

(2) Style Requirements of Ordinances and Amendments to Existing Ordinances. (a) General Provisions. No ordinance or amendment to an existing ordinance passed by a Quorum Court shall contain more than one (1) comprehensive topic; and shall be styled (:) 'Be it Enacted by the Quorum Court of the County of KKKKKK, State of Arkansas; an Ordinance to be Entitled:'. Each ordinance shall contain such comprehensive title and the body of such ordinance shall be divided into articles, sequentially numbered, each expressing a single general topic related to the single comprehensive topic.

Ark.Stat.Ann. § 17-4005 (Supp.1977) states:

(1) Defined. An emergency ordinance or emergency amendments to existing ordinances may be introduced in the manner provided by law for the introduction of ordinances. An emergency ordinance may be enacted only to meet public emergencies affecting life, health, safety, or the property of people.

(2) * * *

(3) Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated 'Emergency Ordinance.'

(4) Readings and Publication. An emergency measure does not require separate readings or publication prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the County Judge.

From the above statutes it can be seen the conflict arises by the fact that the ordinance in question stated "Be it Ordained by the Logan County Quorum Court." Thus it contained the word "ordained" rather than the statutorily prescribed word "enacted." The word "ordain," as defined by Webster's New World Dictionary, means to "appoint; decree; establish; enact." The same dictionary We have held that substantial compliance with publication requirements is sufficient as it relates to Initiative and Referendum amendments. Johnson v. Munger, 260 Ark. 613, 542 S.W.2d 753 (1976). A liberal construction is accorded an act in order to effectuate its purpose. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). In Leigh, we further held substantial compliance with the law was sufficient to validate an election. We also adhered to the rule of substantial compliance in Vinsant v. Knox, 27 Ark. 266 (1871); Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587 (1941); and Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319 (1930), where we stated: "The whole proceeding is statutory, and the statute must be substantially followed in all proceedings." Further, there is a presumption that the law was followed, and it is incumbent upon those attacking the validity of a statute to show its invalidity. Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696 (1941).

defines the word "enact" to mean "to make into law; pass (a law); decree; ordain." Thus we have the word "enact" to mean ordain and the word "ordain" to mean enact. No one could be misled by the use of the word "ordain" in place of "enact." We must then consider whether such technicality voids the ordinance. We have long held that statutory construction requires a common sense approach. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W.2d 779 (1932). When the General Assembly uses words which have a fixed and well-known signification, they are presumed to have been used in that sense. State v. Jones, 91 Ark. 5, 120 S.W. 154 (1919). The rule of strict construction will not be used to defeat the obvious intent of the General Assembly. Ark. State Highway Commission v. Butler, 105 F.2d 732 (8 Cir. 1939). The primary[267 Ark. 144] rule in construing a statute is to ascertain and give effect to the intent of the General Assembly and this intent is obtained by considering the entire act. Perry Co. v. House, 196 Ark. 317, 117 S.W.2d 342 (1938). If the language is ambiguous, we consider the subject matter of the act, object to be accomplished, purpose to be served, as well as the remedy and consequence. Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384 (1943).

In State ex rel Attorney General v. Chicago Mill & Lbr., 184 Ark. 1011, 45 S.W.2d 26 (1931), and Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W.2d 452 (1937), we stated:

It is a well-settled principle of statutory construction that statutes (will) receive a common-sense construction, and, where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied. This is but making the strict letter of the statute yield to the obvious intent of the Legislature.

Statutes will not be defeated on account of mistakes, errors or omissions, provided the intent of the General Assembly can be collected from the whole statute. Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S.W.2d 998 (1931). We have often held that the title of an act is not controlling in its construction even though it is a matter to be considered in determining the meaning of a statute which is otherwise ambiguous. Matthews v. Byrd, 187 Ark. 458, 60 S.W.2d 909 (1933). Likewise, the language used in the title of an act is not controlling but may play a part in explaining ambiguities in the body of the statute. City of Conway v. Summers, 176 Ark. 796, 4 S.W.2d 19 (1928). We examine the title of an act only for the purpose of shedding light on the intent of the General Assembly. Lyerley v. Manila School District No. 15, 214 Ark. 245, 215 S.W.2d 733 (1948).

Ark.Stat.Ann. § 17-4005(4) (Supp.1977) provides:

Readings and Publications (Publication). An emergency measure does not require separate readings or publication prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the county judge.

The above statute requires such ordinances to be published and states the publication shall be initiated within two (2) days (now seven (7) days) after approval by the county judge. The approval by the county judge was on Thursday, December 14, 1978, and it was published in the next issue of the local weekly newspaper. This publication was on Monday, December 18, 1978. With Saturday and Sunday deleted the publication was at least initiated within two (2) days as contemplated by the General Assembly.

Ark.Stat.Ann. § 17-4005(3) (Supp.1979) states:

Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and...