Jumper v. McCollum

• Decision Date: 24 June 1929
• Docket Number: 44,57
• Citation: 18 S.W.2d 359,179 Ark. 837
• Parties: JUMPER v. MCCOLLUM
• Court: Arkansas Supreme Court

18 S.W.2d 359

179 Ark. 837

JUMPER v. MCCOLLUM

No. 44, 57

Supreme Court of Arkansas

June 24, 1929

Appeal from Faulkner Chancery Court; W. E. Atkinson, Chancellor affirmed.

Decree affirmed.

J Wendell Henry, for appellant.

R W. Robins, J. C. & Wm. J. Clark, for appellee.

SMITH J. HUMPHREYS, J., dissenting.

OPINION

SMITH, J.

An act, No. 64, was passed at the 1929 session of the General Assembly which effected substantial changes in the law governing the organization and administration of local improvement districts in cities and towns.

A street improvement district was organized in the city of Conway, under the terms of this act, within less than ninety days after adjournment of the General Assembly which passed it, and the validity of the district depends upon the question whether act 64 was in force at the time the district was organized, as the proceedings for that purpose did not conform to the statute which act 64 amends. No other question is involved on this appeal.

The act contains the following emergency clause:

"Section 23. It is ascertained and hereby declared that, by reason of the inability, under present laws, to extend water mains and repair water plants, there is great danger of conflagration, that, by reason of the inability to extend electric light plants, there is great danger to the public peace and safety, owing to the darkness of the streets, and that, by reason of the inability to extend and repair sewers, there is great danger to the public health, and that, for these reasons, it is immediately necessary that this act should go into operation, and it is therefore declared that an emergency exists, and this act shall be in force and effect from and after its passage."

Appellant, as a property owner in the district, insists (a) that the language used in the emergency clause of act 64 is not sufficient to state an emergency within the meaning of the Constitution, and (b) that there is, in fact, no such emergency as that stated.

The original Initiative and Referendum Amendment provided that: "The second power (reserved to the people) is a referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety) either by the petition, signed by five per cent. of the legal voters, or by the legislative assembly as other bills are enacted."

In construing this constitutional amendment in the case of Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392, it was held that all acts of the General Assembly are subject to the referendum except such laws as are necessary for the immediate preservation of the public peace, health and safety, but that it was a question exclusively for legislative determination whether a statute was necessary for the immediate preservation of the public peace, health or safety. It was also held in the case cited that, while the existence of an emergency must be declared by the Legislature so as to exclude the referendum, it was not essential that this declaration be made in the exact words of the amendment, as other words of similar import unmistakably showing the intention to declare that an emergency existed, were sufficient.

At the 1918 general election a new Initiative and Referendum Amendment was adopted. Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865. Section 4 of this amendment contains the following provisions in regard to emergency legislation:

"If it shall be necessary for the preservation of the public peace, health or safety, that a measure shall become effective without delay, such necessity shall be stated in one section, and if, upon a yea and nay vote, two-thirds of all the members elected to each house, or two-thirds of all the members elected to the city or town councils, shall vote upon separate roll-call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure, such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this subsection shall apply to city or town councils."

It is not sufficient, under this last amendment, for the legislation merely to declare that an emergency exists, but it is necessary to state the fact which constitutes such emergency. If therefore an act is passed which does not contain an emergency clause in which the fact is stated constituting the...