Sanderson v. Texarkana

• Citation: 146 S.W. 105,103 Ark. 529
• Parties: SANDERSON v. TEXARKANA
• Decision Date: 01 April 1912
• Court: Supreme Court of Arkansas

146 S.W. 105

103 Ark. 529

SANDERSON v. TEXARKANA

Supreme Court of Arkansas

April 1, 1912

Appeal from Miller Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

Wm. H Arnold and Will Steel, for appellant.

1. The act is unconstitutional because: (1) It conflicts with art 7, § 28, Constitution, art. 23, amendment 5; 76 Ark. 22; 92 Id. 98. A road tax is a county tax, and county courts only have jurisdiction of such. (2) It conflicts with art 7, § 30. (3) It is in conflict with art. 12, § 2. 87 Ark. 591; 36 Id. 175. (4) It is in conflict with art. 5, § 24, prohibiting special laws. Kirby's Dig., § 7324 et seq.; 48 Ark. 384; Suth. on St. Const. § 110; 36 Ark. 517. (5) It conflicts with art. 16, § 5, on uniformity of taxation. 97 Ark. 330; 89 Id. 516; 57 Id. 558.

2. It is invalid in so far as it undertakes to interfere with the disposition of taxes for year 1910. Art. 16, § 11; 76 Ark. 22.

3. The chancery court had no jurisdiction to enjoin. 76 Ark. 22; art. 28, § 7; Kirby's Dig., §§ 7160, 7162; 47 Ark. 85; 44 Id. 230.

Paul J. Cella, City Attorney, and Simms & Cella, for appellee.

1. Amendment No. 5 leaves the question of the machinery for the distribution of the funds with the Legislature. Kirby's Dig., § 7351; 37 Ark. 367; 76 Id. 22; 29 L. R. A. 416; 18 So. 339; Wade on Retrospective Law, 22; 99 P. 286; 34 Mo. 546; 69 Mo. 571.

2. The act confers no special powers on the city. Kirby's Dig., § 5436.

3. The Legislature is the sole judge of whether a general act is applicable or not, and of the necessity of a special act. 92 Ark. 4.

4. The tax is uniform. 63 Ill. 156; 81 Id. 156.

5. No vested rights are affected. Wade on Retrospective Laws, 22; 25 Ill. 187; 50 Cal. 561.

6. Equity has power to enjoin an executive officer who is about to disobey ministerial duties placed on him by statute. 5 Pom. Eq. Jur. 328-9; 52 Ark. 541; Perry on Trusts, vol. 2. p. 470; Bispham, Eq. (7 ed.) 33.

7. If there is any other ground upon which a decision may rest, courts refuse to consider the constitutionality of an act, and resolve all doubts in its favor. 84 Ark. 412; 85 Id. 12.

OPINION

FRAUENTHAL, J.

This is an action to enjoin the sheriff and collector of Miller County from paying into the county treasury three-fifths of the road tax collected for the year of 1910 from the property situated within the corporate limits of the city of Texarkana, and to compel him to pay same into the treasury of that city. Under and by virtue of Amendment No. 5 to the Constitution of the State, a majority of the qualified electors of Miller County at the general election held in 1910 voted in favor of a road tax. Thereupon the county court of Miller County levied a three mills road tax upon all the taxable property of said county for the year 1910. In July, 1911, the collector filed his settlement with the county court, from which it appears that the amount of the road tax collected under said levy upon the property within the limits of the city of Texarkana was $ 9,122.95, all of which he was ordered by said county court to pay to the county treasurer, and was proceeding to do so when this suit was instituted. It was alleged in the complaint that this relief was sought under and by virtue of an act of the General Assembly, approved May 30, 1911, entitled: "An act to grant to the city of Texarkana, Miller County, for use on the streets of said city, three-fifths of the road tax collected on property within the corporate limits of said city, and for other purposes." To this complaint the defendant filed a demurrer upon the ground that the said act of the Legislature was unconstitutional and void, and that the chancery court was without jurisdiction to hear the cause. Without waiving the grounds of his demurrer, the defendant also filed an answer in which he alleged that in pursuance of proper authority a number of road districts had been established in Miller County, among which was road district No. 5, which embraced as a part of its territory the entire city of Texarkana; that, in anticipation of the revenues arising from the levy of said road tax, the county court had made improvements upon the public roads in said district, by which liability had been incurred and outstanding warrants issued on the county treasury, and that this work had been done, and the warrants issued, prior to the passage of the above act; that a diversion of the funds arising from said taxes from the county treasury would impair the rights of the holders of said warrants and the creditors of said road district.

The case was heard by the lower court upon the pleadings and an agreed statement of facts. This agreed statement of facts was in substance and effect a statement of the above allegations made in the complaint and answer. The court overruled the demurrer to the complaint, and held the above act of the Legislature constitutional and binding. It found that three-fifths of the taxes collected by the defendant under the levy of said road tax for 1910 upon property situated in the city of Texarkana amounted to $ 5,473.77, and that he had collected of said road tax on other property situated in said road district No. 5 a sum ($ 7,143.23) far in excess of an amount sufficient to pay all warrants issued and indebtedness incurred for work done in said road district prior to the passage of said act. It thereupon entered a decree enjoining defendant from paying said $ 5,473.77 to the county treasurer and ordering it paid to the treasurer of the city.

By the act of the Legislature approved May 30, 1911, it was provided that two-fifths of the road tax collected upon property within the limits of said city of Texarkana should be appropriated for the purpose of working roads and building bridges outside of the limits of said city and applied to that purpose, according to the discretion of the county judge. The remaining three-fifths of said tax raised and collected in said city was appropriated for the exclusive purpose of building bridges and working the streets and highways within the limits of said city, and it was made the duty of the collector of Miller County to pay into the treasury of said city three-fifths of said road tax collected on the property within the limits of said city to be used by the council of said city for said purpose, and it was provided that the receipt of said city treasurer should entitle the collector to credit in his settlement with the county court for the amount so paid. By section 2 of the act it is provided that it should apply to and include the road tax collected in said city for the year 1910. (Special & Priv. Acts, 1911, p. 1003.)

It is urged that this act is in conflict with section 28 of article 7 of the State Constitution, which grants to county courts exclusive original jurisdiction in all matters relating to roads, the disbursement of moneys for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the county. But, long after the adoption of the Constitution of 1874 and the above section thereof, said Amendment No. 5 to the Constitution was voted by the people of the State and declared adopted on January 13, 1899. By that amendment it was provided that the county court shall have the power to levy a road tax of not exceeding three mills if a majority of the qualified electors of the county shall have voted therefor at the general election preceding such levy. In that constitutional amendment, no provision is made as to what governmental agency shall receive or disburse the funds collected from such tax. It is only provided therein that such taxes, "when collected, shall be used in the respective counties for the purpose of making and repairing the public roads and bridges of the respective counties, and for no other purpose." Unless inhibited by some constitutional provision, the State Legislature has full power over all matters of taxation and the collection and disbursement of taxes, and may exercise absolute control over all revenues collected by subordinate branches of the State Government. 1 Cooley on Taxation, p. 46. The road tax is dedicated by the above constitutional amendment to the purpose of making and repairing public roads and bridges in the county, and it is therein provided that it shall be expended for no other purpose. The streets of a municipality are public roads of the county, of which the municipality is a component part. While streets do not include roads, yet roads do include streets. Chamberlain v. Iowa Tel. Co., 119 Iowa 619, 93 N.W. 596; State v. Mayor, 30 Mont. 338, 76 P. 758; 28 Cyc. 832. Streets, like roads, form the great highways of the State, upon which the travel of the people is done and their property carried. The State, in its sovereignty over all public highways, has full power over the streets as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency as it may deem best the power of supervision and control over streets. By section 3 of article 12 of the Constitution, the Legislature is empowered to pass laws for the organization of towns and cities. The streets of such towns and cities are public highways dedicated to the use, not only of the people of such municipal corporations, but to the whole people of the county. One of the chief objects of its incorporation is to give to the municipality control and supervision over the streets within its limits and to charge it with the duty to keep and maintain them in a condition so that they are constantly fit for safe, free and convenient public use. It is hardly to be supposed that it was the intention of any enactment, either of the Constitution or of the Legislature, to authorize two agencies with...