Matheny v. Independence County
| Decision Date | 23 November 1925 |
| Docket Number | 7 |
| Citation | 277 S.W. 22,169 Ark. 925 |
| Parties | MATHENY v. INDEPENDENCE COUNTY |
| Court | Arkansas Supreme Court |
Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.
STATEMENT BY THE COURT.
On the 16th day of October, 1925, the county court of Independence County entered into a contract with J. W. Williamson to sell him bonds of Independence County at par with interest at five and a half per cent. per annum to the amount of $ 47,765.46 which was the amount of indebtedness incurred by said county from the 7th day of October, 1924, to February 16, 1925. Of this amount, $ 20,530.24 was the amount of indebtedness incurred by the county between October 7, 1924, and December 7, 1924.
I. J Matheny, a citizen and taxpayer of Independence County protested against the action of the county court and was allowed to file an intervention in the case, and appeal from the action of the county court in making the contract as above stated.
The circuit, court found that the contract made by the county with J. W. Williamson was valid, and judgment was rendered accordingly. The case is here on appeal.
Judgment reversed, and cause remanded.
I. J. Matheny, for appellant.
S. M. Casey, for appellee.
HART, J., (after stating the facts).
The correctness of the decision of the circuit court depends upon the construction to be given to amendment No. 11, which has been declared adopted under the decision of this court in Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865. This court has held that Amendment No. 11 to the Constitution, authorizing county courts to issue bonds under certain conditions, is self executing, and that a county judge need not await the passage of an enabling act to order a sale of bonds. Cumnock v. Little Rock, 168 Ark. 777, 271 S.W. 466, and Lucas v. Reynolds, 168 Ark. 1084, 272 S.W. 653.
Amendment No. 11 was proposed by the Legislature of 1923, and its provisions may be found in the General Acts of 1923, p. 797, and Acts of 1925, p. 1086. Section 1 contains a proviso as follows:
"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."
The action of the county court in making the contract, and the judgment of the circuit court affirming it, evidently proceeded upon the theory that the amendment was not adopted until the 16th day of February, 1925, the date on which the speaker of the House of Representatives declared it to be adopted in accordance with the provisions of § 1482 of Crawford & Moses' Digest. The amendment in question was proposed by the General Assembly of 1923, and was voted on at the general election held on October 7, 1924. This was the date of the general election for senators and representatives and the time fixed by the Constitution for the submission of the amendment to the electors of the State for approval or rejection.
The Constitution provides that, if a majority of the electors voting at such election adopts such amendment, the same shall become a part of the Constitution. Constitution of 1874, art. 19, § 22.
Section 2 of the amendment provides that it shall take effect and be in operation sixty days after its approval and adoption by the people of the State of Arkansas.
It will be noted that the Constitution itself provides that, if a majority of the electors voting at the election at which the amendment is submitted adopt it, the amendment shall become a part of the Constitution. Hence its adoption does not depend upon the declaration of the Speaker of the House of Representatives or the publication by the Governor of his proclamation to that effect as provided in § 1482 of the Digest. If the Speaker and the Governor were to neglect or refuse to discharge their duties under the statute, the amendment would nevertheless be a part of the Constitution of the State, because it is the will of the people expressed in the mode prescribed in the Constitution. Our construction of the Constitution quoted above is that it is the ascertained majority of the vote of the people, and not the declaration of the Speaker and the proclamation of the Governor, which gives force and effect to the amendment. See Wilson v. State, 15 Tex. Ct. App. 150.
It follows that the amendment was adopted by the people on the 7th day of October, 1924, but did not take effect until sixty days thereafter, which was on the 7th day of December, 1924. Such, as we have already seen, is the provision of the proposed amendment. It expressly provides that it shall take effect and be in operation sixty days after its approval and adoption by the people of the State of Arkansas.
This view is in accord with our previous decisions bearing on the question. In State v. Johnson, 17 Ark. 407, the court held that a commission is simply the evidence of the right to hold an office, but invests the incumbent with no right to the office. In discussing the question the court said that the office of the proclamation of the Governor was to inform the parties concerned of the result of the election, and that the certificate and abstract required to be made by the officers holding the election, and to be sent to the Governor, were to furnish him with evidence whereon he might proceed to issue a commission to the person so appearing to him to have been elected. To the same effect, see State v. Askew, 48 Ark. 82, 2 S.W. 349, and Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; see also, Grant v. Hardage, 106 Ark. 506, where it was held that whether an amendment has been adopted according to the requirements of the existing Constitution is a judicial question.
We are of the opinion that § 1482 belongs to the same...
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