Hensley v. Holder

• Decision Date: 16 December 1957
• Docket Number: No. 5-1411,5-1411
• Citation: 228 Ark. 401,307 S.W.2d 794
• Parties: Jewell HENSLEY et al., Appellants, v. Billy Joe HOLDER et al., Appellees.
• Court: Arkansas Supreme Court

Page 794

307 S.W.2d 794

228 Ark. 401

Jewell HENSLEY et al., Appellants, v. Billy Joe HOLDER et al., Appellees.

No. 5-1411.

Supreme Court of Arkansas.

Dec. 16, 1957.

John B. Driver, Marshall, for appellants.

Garvin Fitton and Arnold M. Adams, Harrison, for appellees.

HOLT, Justice.

Appellee, Billy Joe Holder, was elected Sheriff and Collector for Searcy County, Arkansas, and took office January 1, 1951. He served three terms, a period of six years, his last term having expired December 31, 1956. On January 7, 1951, he appointed his wife, June Holder, to be his Deputy Sheriff and Collector, in which capacity she served until December 31, 1956. During the period from January 1, 1951 to November 1, 1953, she worked without pay. Sheriff Holder's compensation was paid from the fees of his office, not to exceed a maximum amount of $5,000 annually, as the law provided. The 1953 Legislature passed Act 411 which was approved and became effective on March 28, 1953. This act in part provides: 'Section 1. The Sheriff in all counties having a population of not more than 11,000 and not less than 10,200 according to the 1950 Census may employ one deputy sheriff. Such deputy sheriff shall receive from the General County Fund an annual salary not to exceed Twelve Hundred ($1,200.00) Dollars.' Section 2 repealed all laws in conflict therewith, and Section 3 made the Act an emergency measure. Thereafter, in November 1953, proceeding under the terms of this act, Sheriff Holder appointed June Holder his deputy sheriff, and between the dates of December 30, 1953 and April 7, 1956, June claimed and was paid $100 per month for 28 consecutive months [a total of $2,800] from the County General Fund on county warrants issued by the County Clerk and approved by the County Judge.

Appellants, as taxpayers for themselves and all other similarly situated, brought the present suit against the sheriff and his bondsmen alleging that Act 411 is unconstitutional and void and that the $2,800 paid to June Holder as deputy sheriff was illegally paid, that the sheriff's accounts should be surcharged for this money so paid, and prayed that the county officials be enjoined from making further payments to the deputy sheriff under said act; also, for judgment against Sheriff Holder, Central Surety and Insurance Corporation--his bonding company, and June Holder, his deputy.

To this complaint appellees, Sheriff Holder, June Holder, his deputy, and Central Surety and Insurance Corporation, each filed a separate demurrer in which each alleged that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer of Sheriff Holder, overruled the separate demurrers of the bonding company and June Holder, and later, on a final hearing, dismissed the cause as to the bonding company and returned judgment against June Holder as deputy sheriff for $2,800, drawn by her under Act 411 above, and restrained the county officials from disbursing any other funds under said act. The cause is before us on direct appeal of appellants and on a cross-appeal.

Appellants rely for reversal on the following points: '1. The Chancellor erred in sustaining the demurrer of the Sheriff and holding said sheriff not responsible for sums paid to his deputy. 2. The Chancellor erred in dismissing the appellants' complaint as to the appellee, Central Surety and Insurance Corporation, the official bonding company of the Sheriff during all times and dates in issue in this cause.'

We hold that the chancellor was correct in sustaining the demurrer of Sheriff Holder and in dismissing the cause against the bonding company. Clearly, we think Act 411 here in question is void and unconstitutional since it is a special act and right in the teeth of the provisions of Amendment 14 of the Constitution of Arkansas which says in plain, unmistakable language: 'The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.' It is conceded that Act 411 here applies only to Searcy County since this is the only county in Arkansas having a population [by the 1950 census] of not less than 10,200 nor more than 11,000. "A law is special in a constitutional sense when, by force of an inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate.' [Citing cases] * * * In 25 R.C.L. p. 834, par. 81, it is said: 'And where a statute fixes the compensation of an officer in a particular locality upon a basis entirely different from that of all other persons filling like offices in the state, it has been held not to be a general law, but within the constitutional prohibition against...