Nixon v. Allen

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Nixon v. Allen, 234 S.W. 45, 150 Ark. 244 (Ark. 1921)
• Decision Date: 24 October 1921
• Docket Number: 179
• Parties: NIXON v. ALLEN. HOPPER v. BRIGHT

234 S.W. 45

150 Ark. 244

NIXON v. ALLEN.

HOPPER v. BRIGHT

No. 179

Supreme Court of Arkansas

October 24, 1921

Appeal from Pulaski Chancery Court; Robert L. Rogers, Special Chancellor; affirmed.

Decree affirmed.

Emerson Donham & Shepherd and Carmichael & Brooks, for appellant Nixon and appellee Bright.

1. The act is separable. There are ten distinct provisions of the act set out in the title thereto. It is always proper to look to the title of an act to determine its meaning. 138 Ark 387; 124 Ark. 473. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. 111 Ark. 108; 46 Ark. 329; 37 Ark. 356; 53 Ark. 490; 64 Ark. 555; 63 Ark. 576; 126 Ark. 263; 138 Ark. 386.

2. The Legislature had the power to declare the act separable. 129 Ark. 548; 138 Ark. 556; 139 Ark. 160; 139 Ark. 577.

3. None of the provisions of the act is void, unless it be the section providing for the two county judges is unconstitutional, and, if so, the act being severable, the remainder would stand in full force. However, this provision does not contravene § 28, art. 7 of the Constitution nor does this section limit the number of county judges to one. 60 Ark. 343. It means that only one judge can hold the county court, which is to say that the judges do not sit en banc. Sec. 8 of the act, which creates a board for allowing additional deputies, etc., is not a delegation by the Legislature of the power to legislate. The same authority has been approved numerous times in levee districts, etc wherein the board is authorized to employ clerks and fix their salaries. As to powers delegated to a board, see 96 Ark. 419.

4. The act is not subject to referendum. 104 Ark. 583; 104 Ark. 510; 103 Ark. 48; 105 Ark. 380; 110 Ark. 528; 106 Ark. 63; 117 Ark. 474; 106 Ark. 504; 139 Ark. 178; 117 Ark. 266; 133 Ark. 380.

J. S. Utley, Attorney General; Poe, Gannaway & Poe and J. C. Marshall, for appellee Allen and appellant Hopper.

The act is unconstitutional in that it creates an additional county and probate court and a common pleas court, and provides for an additional judge to hold these courts. Const. art 7, §§ 28, 29; 60 Ark. 343.

It is unconstitutional also in that it provides for a board which shall have power to fix the number of deputies and their compensation, contingent expenses and allowances of the county officers. The Legislature alone has this power, and cannot delegate it to another. Const. Art. 16, Sec. 4; 89 Ark. 456; 40 Ark. 100; Throop on Public Offices, § 500. There is no analogy between county offices, controlled by the Constitution, and levee boards, etc., not controlled by the Constitution.

The act is void in a number of particulars, and these void sections are so inter-related that they invalidate the whole act. 138 Ark. 381; 13 Ark. 763; 49 Ark. 110; 75 Ark. 542; 55 L. R. A. 740; 2 L. R. A. (N. S.) 653. This is true, even though the act contains a provision to the contrary, as the dominant feature of the act is unconstitutional. 129 Ark. 549; 6 R. C. L. 123; 65 Wash. 156; 144 Ark. 38.

The act is referable. 133 Ark. 380; Acts 1911, p. 582.

OPINION

WOOD, J.

These appeals are from decrees rendered by R. L. Rogers, special chancellor, declaring void act No. 264 of the Acts of 1921. The title of the act is: "An Act to provide For More Efficient County Government for Pulaski County: For Two County Judges: For Separating the Offices of Sheriff and Collector; For a County Comptroller; For a County Purchasing Agent; For Chief Deputies; For County Officers; For a Board for Approving Additional Deputies; For Fixing the Salaries of County Officers and of their Deputies; For a Court of Common Pleas; For Fixing the Court Costs in the Circuit and Chancery Courts; and for Other Purposes."

Section 1 provides that there shall be two county judges for Pulaski County; one designated as county judge and the other probate judge.

Section 2 provides that the Governor shall appoint the probate judge, who shall hold office until his successor is elected and qualified.

Sections 3, 4 and 5 confer power upon the county judge, by and with the advice and consent of the grand jury, to appoint a county comptroller and a county purchasing agent. These several sections prescribe the duties and qualifications respectively of the comptroller and the purchasing agent. The comptroller's "term of office" is made concurrent with that of the county judge appointing him. He takes an oath of office and is required to furnish a bond in the sum of $ 25,000 for the faithful performance of his duties. He prepares a county budget, makes monthly reports of the county finances, expenses and obligations. He keeps a record of county property and checks the emoluments of county and township officers, making an annual audit of the taxes of the county, and, among other things, is "to perform any service that may be required of him by the county judge or by the grand jury," and the county court is prohibited from considering any claim until it has first been presented to the comptroller for his approval or disapproval.

Sec. 6 makes offices of sheriff and collector separate and distinct, and provides that at the next general election a sheriff and collector shall be elected. It provides for bonds for these respective officers, and provides that, until January 1, 1923, the sheriff shall continue to perform the duties and receive the same compensation as he is now performing and receiving as sheriff and collector.

Sec. 7 provides for deputies for the county officers and a head clerk in the collector's office. The chief deputy in the sheriff's and collector's office and the head clerk in the collector's office to receive the same salary as is now provided by law.

By § 8 the three circuit judges, the chancellor and the county judge "shall constitute a board for allowing additional deputies to the county officers and fixing their compensation," but this board "shall not have authority to decrease the present deputies and clerical force, either in number or compensation, and the contingent expenses and allowances of the officers as now provided by law, without the concurrence of the quorum court, but they shall have authority to increase the compensation of the present force, contingent expenses and allowances of the officers as now provided by law; they may also create additional contingent expenses and allowances for the various officers. The county judge shall be chairman of the board. On written petition of any county officer for an additional deputy or deputies, additional contingent expenses and allowances, the board shall have a public hearing and shall grant or refuse the petition as the public interest may require. Any petition granted by said board shall be allowed and ordered paid by the county court."

Sec. 9 prescribed certain duties of the county treasurer.

Sec. 10 provides that §§ 1043 and 1017 of Crawford & Moses' Digest shall not apply to Pulaski County, and that section 1042 shall not apply in so far as it requires the collector to visit the voting places of the county to collect taxes.

Sec. 11 prescribes certain duties of the county officers, except the collector, with reference to the filing of reports of the funds and emoluments collected by them and making settlements.

Sec. 12 provides that § 10 of act 145 of the Acts of 1917, approved February 28, 1917, shall not apply to the offices of county judge, probate judge, comptroller, purchasing agent, or sheriff.

Sec. 13 provides penalties for failure to comply with the provisions of the act.

Sec. 14 designates the salaries which the county officers and their deputies shall receive, and, after specifying the amounts, it is provided that "the collector shall, in addition to his salary, be allowed to retain as part of the emoluments of his office all fees and costs for the collection of delinquent taxes, as now provided by law."

Sec. 15 provides "that the court costs for each action, suit or proceeding in the circuit and chancery courts which shall be paid in advance by the party instituting such action or proceeding, shall be as follows: In the circuit court, for each appeal from an inferior court, $ 7.50; all other actions or proceedings $ 10.00. In the chancery court, for each divorce suit, and each ex parte proceeding, $ 10.00; for all other suits or proceedings, $ 15.00." Out of the clerk's costs in the circuit and chancery courts the sum of fifty cents shall be paid into a library fund to be kept by the clerk of the chancery court, and expended by him, under the direction of the chancellor, in providing and maintaining a law library for the use of the judges, county officers and practicing attorneys. The various courts are given the power to tax and adjust the cost between litigants in all cases.

Sec. 16 creates a court of common pleas to be held quarterly by the county judge.

Secs. 17 to 26, inclusive, define the jurisdiction of the court and the duties of the clerk and sheriff in connection therewith, and prescribe rules of practice governing same.

Sec. 21 is as follows: "The judge of the probate court shall be judge of the court of common pleas."

Sec. 27 provides for an additional contingent expense to be allowed the sheriff in case of riots, uprisings and emergencies, the application to be made to and approved by either of the judges of the board mentioned in section 8, which, upon such allowance and approval, "shall be allowed and ordered paid by the county court out of any available funds of the county."

Sec. 28 is as follows: "If any section, sub-section, sentence or phrase in this act shall be held unconstitutional, such decisions shall not affect the validity of the...