Phillips v. Rothrock

• Decision Date: 08 November 1937
• Docket Number: 4-4776
• Citation: 110 S.W.2d 26,194 Ark. 945
• Parties: PHILLIPS v. ROTHROCK
• Court: Arkansas Supreme Court

110 S.W.2d 26

194 Ark. 945

PHILLIPS v. ROTHROCK

4-4776

Supreme Court of Arkansas

November 8, 1937

Appeal from Washington Chancery Court; Lee Seamster, Chancellor reversed.

Decree reversed and cause remanded.

C. D Atkinson and G. T. Sullins, for appellant.

J. W Trimble, Maupin Cummings, O. E. Williams and Earl N Williams, for appellees.

SMITH, J. GRIFFIN SMITH C. J. HUMPHREYS and MEHAFFY, J. J., dissent.

OPINION

SMITH, J.

Appellant brought suit as a citizen and taxpayer of Washington county against the public officials of that county to enjoin the disbursement of the public revenues of the county pursuant to the provisions of "Initiative Act No. 1 of Washington county, Arkansas." The suit questioned the existence of the act as valid legislation upon various grounds, and from a decree dismissing the suit is this appeal.

This decree was based upon the finding contained therein that "The suit was not filed within the time prescribed by law, and this court has no jurisdiction to hear and determine the questions."

Much testimony was heard upon the various allegations of the complaint, all of which has been incorporated in the transcript before us, but we shall review only so much thereof as is required to elucidate the questions upon which we base our decision. We will first consider the two grounds above stated upon which the action of the court was based.

The declaration that "The suit was not filed within the time prescribed by law" is based upon § 13 of act No. 4 of the Acts of 1935, p. 8. This act is entitled "An act to facilitate the exercise of the right of the initiative as to county acts and measures, and for other purposes." This act was passed pursuant to the direction of the initiative and referendum amendment to the Constitution that "General laws shall be enacted providing for the exercise of the initiative and referendum as to counties." Section 13 of this act provides that "The right to contest the returns and certification of the vote cast upon any proposed county act or measure is hereby expressly conferred upon any ten qualified electors and taxpayers of the county. Said contest shall be brought in the chancery court, and shall be conducted under statutes and procedure for contesting the election of county officers, except the complaint shall be filed within sixty days after the certification of said vote, and no bond shall be required of the contestants." The instant suit was not filed by ten electors and taxpayers of the county, and was not filed within sixty days after the certification of the vote upon the measure.

The provisions above quoted do not apply to this suit. It was not brought to contest the returns of the election, or the certification of the vote upon the proposed measure. It is conceded that a large majority was cast in favor of the measure and that the returns of this vote were properly certified. The objection made, among others, is that the submission of the question at the election was unauthorized under amendment No. 7 (the initiative and referendum amendment) and the enabling act No. 4, supra, passed pursuant thereto, and that act No. 1, therefore, did not become a law notwithstanding the favorable vote thereon.

That such suits are not election contests has been recognized in all the similar cases which have come before this court, and that any citizen and taxpayer may institute a proper suit to prevent unauthorized and illegal diversion of public funds is a proposition of law which this court has frequently announced, and the right of the individual citizen to be thus heard has always been enforced. Upon the right of the individual citizen to maintain such a suit the late case of Beene v. Hutto, 192 Ark. 848, 96 S.W.2d 485, is authoritative. That case states the existence of such a right to be beyond question. Innumerable other cases decided by this court are to the same effect. If the present suit is not such a suit as § 13 of act No. 4, supra, authorizes and limits as to time, then this time limitation does not apply. That it is not so regarded is concluded by the following cases which will be briefly discussed.

Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617, was a suit brought in the Pike chancery court attacking the validity of a local law alleged to have been enacted by a majority vote of the citizens of that county. The election held in that county was not questioned. The contention was that the local act had not been enacted notwithstanding the majority vote favoring its adoption for the reason that the act of the General Assembly pursuant to which the election was held was void as being a local law. There were three opinions in that case, one the original majority opinion, another a majority opinion overruling a petition for rehearing. The third was a vigorous dissenting opinion, in which three justices concurred. But in none of these opinions was it suggested that the proceeding was one to contest an election.

In the case of Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476, suit was brought in the chancery court against the officers of Arkansas county for the purpose of having the salary act, affirmatively voted upon in that county, declared void and ineffective. Suit was brought by an individual citizen as a taxpayer, as was done in the instant case. The suit was not commenced until October 7, 1935, although the salary act had been voted upon at the election previously held November 6, 1934. Other citizens later intervened in that case and the questions there raised touching the validity of the act were considered and decided by the presiding chancellor, and upon the appeal therefrom the decree of the chancery court holding the act invalid was reversed; but there was no suggestion in the exhaustive briefs filed in that case, or in the opinion of this court, which discussed the questions at length, that there was any lack of jurisdiction on the part of the chancery court, or that the suit was one to contest an election. See also Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248.

We conclude, therefore, that the instant case is not an election contest, but is one which any citizen and taxpayer may institute to prevent the alleged wrongful diversion of public funds, and that, therefore, the sixty-day limitation upon the right to contest the returns and certification of the vote does not apply, and further that the chancery court was not without jurisdiction to hear and determine the case.

The opinion in the case of Hutto v. Rogers, 191 Ark. 787, 88 S.W.2d 68, is not in contravention of this view. That was an election contest. The relief prayed was that the board of election commissioners be required to "count and certify all such votes (cast at the election), same as if the ballot title had in fact been printed on said ballots, that said proposed initiative act be declared duly adopted and enforceable." The relief prayed was denied for the reason stated in a headnote of that case that "Equity has no jurisdiction to try election contests." Here, as has been stated, there is no contest of the election itself. It was, also, decided in that case that the sufficiency of a petition for initiating local laws was a moot question after the election was held. The statement that after the question is submitted to and affirmatively voted upon by the people the sufficiency of the petition calling the election is of no importance was reaffirmed in the second appeal of the Faulkner county salary act case (Beene v. Hutto, 192 Ark. 848, 854, 96 S.W.2d 485), which is cited above upon another proposition. Upon the application of this statement to the instant case more will be presently said.

Appellant contends there is no authority in fact for the initiating of county salary acts. To put this question definitely at rest it may be said that the right of the qualified electors of any particular county to enact a salary act, applicable to that county, was expressly affirmed and the source of that authority was pointed out in the case of Dozier v. Ragsdale, 186 Ark. 654, 55 S.W.2d 779, and need not be repeated. It will suffice to say that we reaffirmed that holding in the cases of Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476, and Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72. Other cases recognizing the validity of local legislation relating to salary acts are: County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2; Benton v. Thompson, 187 Ark. 208, 58 S.W.2d 924; Smith v. Cole (and Brown v. Pennix,) 187 Ark. 471, 61 S.W.2d 55; Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248; Blocker v. Sewell, 189 Ark. 924, 75 S.W.2d 658; Hutto v. Rogers, 191 Ark. 787, 88 S.W.2d 68; Clay County v. Ruff, 192 Ark. 150, 90 S.W.2d 474; Beene v. Hutto, 192 Ark. 848, 96 S.W.2d 485; Priest v. Mack, ante p. 788, 109 S.W.2d 665.

The chief insistence of appellant is that there was no legal authorization for the submission of the salary act to the electors, for the reason that the petitions praying that the election be held were not filed with the county court clerk within the time required by amendment No. 7. There appear to have been thirty-four petitions filed. One of these was filed September 22, 1936. Two were filed September 30, 1936. The others were filed October 1, 1936. The election was held November 3, 1936. It is, therefore, obvious that none of them was filed for as much as sixty days before the election. Amendment No. 7 provides that "General laws shall be enacted providing for the exercise of the initiative and referendum as to counties," but that "In municipalities and counties the time for filing the initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon." Enabling act No. 4 supra, does...