Lybrand v. Wafford

• Decision Date: 06 June 1927
• Docket Number: 46
• Citation: 296 S.W. 729,174 Ark. 298
• Parties: LYBRAND v. WAFFORD (1). PIONEER CONSTRUCTION COMPANY v. MADISON COUNTY (2)
• Court: Arkansas Supreme Court

296 S.W. 729

174 Ark. 298

LYBRAND v. WAFFORD (1).

PIONEER CONSTRUCTION COMPANY v. MADISON COUNTY (2)

No. 46

Supreme Court of Arkansas

June 6, 1927

Appeal from Grant Circuit Court; Thomas E. Toler, Judge; reversed.

Appeal from Madison Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

John L McClellan and T. Nathan Nall, for appellant.

W. L Baugh, Jr., for appellee.

Duty & Duty, for appellant.

Carl V Stewart, for appellee.

Mehaffy & Miller, amici curiae.

Reed, Daugherty, Hoyt & Washburn and Robinson, House & Moses, amici curiae.

OPINION

WOOD, J.

1. By these appeals we are asked to answer the following question: Did the constitutional amendment adopted October 5, 1926, as Amendment No. 15, repeal the bond-issuing clause of the constitutional amendment adopted October 7, 1924, as Amendment No. 11? (These constitutional amendments will hereafter for convenience be referred to as Amendments No. 11 and No. 15, respectively, regardless of the numbers that may be given them when they are digested in the Constitution).

Amendment No. 11 is, in part, as follows:

"Section 1. That § 4 of article 12 of the Constitution of the State of Arkansas be amended by adding thereto the following: 'The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis'."

The language of the first section then prescribes the method by which counties, cities and incorporated towns shall be conducted on a sound financial basis, and the section further contains the following:

"Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid."

Section 2 repeals all provisions in conflict.

Amendment No. 15 is as follows:

"That § 1 of article 16 of the Constitution of the State of Arkansas be amended to read as follows: 'Article 16, § 1: Neither the State nor any city, county, town or other municipality in this State shall ever lend its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874, and the State shall never issue any interest-bearing treasury warrants or scrip.' Provided, that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows:

"For the payment of any indebtedness existing at the time of the adoption of this amendment; for the purchase of rights-of-way for construction of public streets alleys and boulevards within the corporate limits of such municipality; for the construction of, widening or straightening of streets, alleys and boulevards within the corporate limits of such municipality; for the purchase, development and improvement of public parks and flying-fields located either within or without the corporate limits of such municipality; for the construction of sewers and comfort stations; for the purchase of fire-fighting apparatus and fire-alarm systems; for the purchase of street-cleaning apparatus; for the purchase of sites for, construction of, and equipment of city halls, auditoriums, prisons, libraries, hospitals, public abattoirs, incinerators or garbage disposal plants; for buildings for the housing of fire-fighting apparatus; for the construction of viaducts and bridges; and for the purpose of purchasing, extending, improving, enlarging, building, or construction of waterworks or light plants, and distributing systems therefor. * * *".

There is no express repeal of any other provision of the Constitution, in Amendment 15.

It will be observed that, under the language of Amendment No. 11, above quoted, counties, cities and incorporated towns, in order to secure funds to pay indebtedness existing at the time of the adoption of the amendment, are authorized to issue interest-bearing certificates of indebtedness or bonds, while the language of Amendment No. 15 is: "Nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874." There being no express provision in the language of Amendment No. 15 repealing the bond-issuing provision of Amendment No. 11, the question therefore is whether or not the language of the bond-issuing provision of Amendment No. 15 repeals the bond-issuing provision of Amendment No. 11 by necessary implication.

In State v. Martin, 60 Ark. 343, 348, 30 S.W. 421, 422 (28 L. R. A. 153), we said:

"We must keep to the front certain familiar but unvarying rules when we come to interpret the provisions of any section of a constitution. (1). Unambiguous words need no interpretation. (2) Where construction is necessary, words must be given their obvious and natural meaning. (3) The words or provisions under consideration must be construed with reference to every other provision, so as to preserve harmony in the whole instrument. (4) The intent of the framers, gathered from both the letter and spirit of the instrument, is the law."

Judge Cooley says: "The object of construction, as applied to a written constitution, is to give effect to the intent of the people adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it."

He further says: "Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.

"Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part. * * * If any section of a law be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.

"This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another if, by any reasonable construction, the two can be made to stand together. Every provision should be construed, where possible, to give effect to every other provision. Upon the adoption of an amendment to a constitution the amendment becomes a part thereof, as much so as if it had been originally incorporated in the constitution, and it is to be construed accordingly. If possible, it must be harmonized with all the other provisions of the constitution. If this cannot be done, the amendment will prevail. " 1 Cooley, page 124, Constitutional Limitations. Numerous cases are cited in note to text.

There is another familiar rule which should be stated here. "It is settled by very high...