Matthews v. Byrd

• Decision Date: 15 May 1933
• Docket Number: No. 4-3094.,4-3094.
• Citation: 60 S.W.2d 909
• Parties: MATTHEWS v. BYRD, County Clerk.
• Court: Arkansas Supreme Court

60 S.W.2d 909

MATTHEWS v. BYRD, County Clerk.

No. 4-3094.

Supreme Court of Arkansas.

May 15, 1933.

Rehearing Denied June 19, 1933.

Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor.

Proceeding between W. F. Matthews and Clyde E. Byrd, County Clerk. From the judgment the former appeals.

Reversed, and remanded with directions.

C. E. Love, of El Dorado, for appellant.

C. B. Crumpler, of El Dorado, for appellee.

Hal L. Norwood, Atty. Gen., and Sam T. Poe, Tom Poe, and M. A. Matlock, all of Little Rock, amici curiæ.

SMITH, Justice.

This appeal involves the constitutionality of sections 5 and 6 of House Bill No. 559, which, after its final passage, became Act No. 250 of the Acts of 1933. The Secretary of State has certified that this bill, having remained with the Governor twenty days, the General Assembly not being in session, became a law March 30, 1933.

The title to this bill, when introduced in the House, was "A Bill for an Act to be entitled: `An act to fix the compensation of County Officers,'" and this title was not changed.

The legislative journals show that the bill having been passed in the House was amended in the Senate, and that the House concurred in the Senate amendments. The amendments consist in the addition of the two sections of the act which are numbered 5 and 6.

Section 2 of this act fixes the compensation of the county officers of all the counties of the state. It deals with each county separately, and contains various provisions in regard to compensating these officers, and it is insisted that this, in effect, is the consolidation of seventy-five local bills into a single act, all of which are void, because all are local, and that therefore the entire act must fall as being unconstitutional.

Section 3 of the act provides that the compensation allowed by section 2 shall be the maximum compensation, records of which shall be kept, with directions as to the disposition of fees collected in excess of the compensation allowed, etc.

Section 4 provides that nothing contained in the act shall be construed as limiting or restricting the right of the people to initiate such laws as they may, from time to time, deem advisable for the compensation of county officials.

The first amendment to the bill, which appears as section 5 of the act, reads as follows: "That section 10084 of Crawford & Moses' Digest of the statutes of Arkansas, be amended so as to read as follows: `The clerks of the several counties of this State shall cause the list of delinquent lands in their respective counties, as corrected by them, to be entered in a well-bound book, appropriately labeled, which book shall be a permanent public record, and open to the inspection of the public at all times.'"

A comparison of this section 5 of the act with the section of the Digest which it amends discloses that it eliminates the requirement appearing in section 10084, Crawford & Moses' Digest, that the county clerk shall cause the list of the delinquent lands to be published weekly for two weeks, and, in lieu thereof, requires the clerk to enter of record the list of delinquent lands in a well-bound book, to be kept as a public record, open to the inspection of the public at all times.

The other amendment to the bill, which appears as section 6 of the act, amends section 10085, Crawford & Moses' Digest. The amendment is to the effect that, instead of publishing the list of all the delinquent property, as section 10085, Crawford & Moses' Digest requires, there should be published a notice in substance as follows:

"Notice of Delinquent Tax Sale.

"The lands and lots and parts of lots returned delinquent in ____ County for the year 19__, together with the taxes and penalties charged thereon agreeable to law, are contained and described in a list or record on file in the office of the Clerk of the County Court; and notice is hereby given to all parties in interest that said several tracts, lots or parts of lots, or so much thereof as may be necessary to pay the taxes, penalties and costs due thereon, will be sold by the County Collector at the court house in said county on (here state the date of sale) unless the said taxes, penalties and costs as charged thereon agreeable to law, be paid before that time; and that the sale will be continued from day to day until the said tracts, lots and parts of lots be sold."

Section 6 of the act provides that this notice shall occupy a space of not more than six inches double column in the publication in which it appears, and that the county clerk shall make a certificate, at the foot of the record containing the delinquent list, stating in what newspaper the notice of the delinquent land sale was published, and the dates of publication.

Sections 7 and 8 of the act read as follows:

"Section 7. The provisions of this act are hereby declared to be severable, and if any provision of this act should be declared unconstitutional by any court of last resort, the same shall not affect the remainder of this act.

"Section 8. That by reason of the distressing financial condition of the State, which has resulted in the partial collapse of many factors of state and county governments and the inability of the people to meet the demands of government at this time, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after its passage."

The court below held that sections 5 and 6, supra, were unconstitutional, and the effect of that holding is to leave sections 10084 and 10085, Crawford & Moses' Digest in force and effect, and these statutes, unamended, require the publication of the delinquent lists in a newspaper for the time and manner there specified.

For the affirmance of this decree it is insisted that the provisions of section 2, relating to the compensation of county officers, are unconstitutional and void, and that the whole act must, therefore, fail, notwithstanding the provisions of section 7, above quoted, as to the separability of the act, for the reason that, if section 2 of the act is void, the whole legislative scheme and purpose is defeated.

We do not consider or decide whether section 2 is valid legislation or not, for the reason that the provisions of sections 5 and 6 may stand and be enforced, whether section 2 be constitutional or unconstitutional. The law of the subject has been many times declared, and in one of the latest of these cases, that of State v. Hurlock, 185 Ark. 807, 49 S.W.(2d) 611, 613, it was said: "This court has frequently held that when a statute is unconstitutional in part, the valid portion of an act will be sustained if complete in itself, and capable of being executed in accordance with the apparent legislative intent. [Citing cases.]"

The Legislature has manifested and declared its intention in regard to this legislation in a manner too plain to admit of doubt. Section 2 fixes the compensation of county officials. Section 3 makes the provisions of section 2 effective by providing the disposition to be made of fees collected in excess of the compensation allowed by section 2. Sections 5 and 6 dispense with the publication of the delinquent list. These are the provisions of the act, and the Legislature has declared these provisions to be severable, and has declared that if any provision should be declared unconstitutional, that declaration should not affect the remainder of the act.

We, therefore, proceed to consider the constitutionality of sections 5 and 6, without regard to the constitutionality of sections 2 and 3....