Smith v. Cole

• Decision Date: 22 May 1933
• Docket Number: Nos. 4-3089 and 4-3093.,s. 4-3089 and 4-3093.
• Citation: 61 S.W.2d 55
• Parties: SMITH, County Treasurer, et al. v. COLE. BROWN v. PENNIX et al.
• Court: Arkansas Supreme Court

61 S.W.2d 55

SMITH, County Treasurer, et al. v. COLE.

BROWN v. PENNIX et al.

Nos. 4-3089 and 4-3093.

Supreme Court of Arkansas.

May 22, 1933.

Rehearing Denied July 3, 1933.

Appeal from Miller Chancery Court; Pratt P. Bacon, Chancellor.

Appeal from Circuit Court, Pulaski County, Third Division; Marvin Harris, Judge.

Action by W. O. Cole against W. J. S. Smith, Jr., County Treasurer, and others, and action by C. H. Brown against J. C. Pennix and others. From judgments adverse to them, defendants in the first case, and plaintiff in the second case, appeal.

Affirmed.

The first-styled case was instituted in the Miller county chancery court by W. O. Cole, a citizen and taxpayer of Texarkana special school district in Miller county, alleging that appellants, the county judge, the county clerk, and the treasurer, intended to enforce the provisions of Act No. 250 of 1933 and that said act violated the Constitution of the state, and prayed for an injunction restraining said officials from enforcing the provisions of said act. A demurrer was interposed to the complaint which was overruled, and appellants refusing to plead further, a restraining order was granted prohibiting said officials from attempting to enforce the provisions of said act.

The second-styled case was instituted by C. H. Brown, a taxpayer of Pulaski county, against the Arkansas Corporation, alleging that said corporation commission was about to pay the assessors of the state, out of state funds, in disregard of the provisions of Act No. 250 of 1933, and prayed that a writ of mandamus issue commanding said corporation commission, and each member thereof, to comply with Act No. 250 of 1933. To this petition for mandamus the Arkansas corporation commission filed their response, in which they asserted that according to advice received from the Attorney General they expected to act in disregard of the provisions of Act No. 250 of 1933. Upon the petition and response the matter was submitted to the circuit court, and the court determined that the petitioner was not entitled to the relief sought and dismissed the complaint.

The effect of the orders in said causes was to hold that Act No. 250 of 1933 was unconstitutional and void, and the two cases have been consolidated in this court for determination.

Act No. 250 of 1933 became effective on March 30 without the Governor's approval. This court on Monday, May 15, in the case of W. F. Matthews v. Clyde E. Byrd, County Clerk (Ark.) 60 S.W.(2d) 909, decided and determined that sections 5 and 6 of Act No. 250 of 1933 were constitutional and valid enactments of the Legislature and are now in full force and effect.

Section 2 of Act No. 250 of 1933 is the real point of controversy in this litigation. It provides, in effect, for the salaries of all the county officials in the state of Arkansas upon certain classifications, except the county officials of Union county are exempted from its provisions.

Other facts will be referred to in the opinion.

James D. Head, of Texarkana, and R. H. Berry, of Marion, for appellants.

Hal L. Norwood, Atty. Gen., Pat Mehaffy, Asst. Atty. Gen., for appellees.

Ben E. Carter, of Texarkana, and William C. Gibson and Joseph Morrison, both of Stuttgart, amici curiæ.

JOHNSON, Chief Justice (after stating the facts).

There are two questions presented on these appeals for adjudication, namely:

First, is section 2 of Act No. 250 of 1933 general in its application or special and local? Secondly, if local and special in its application, then is it administrative in effect?

A provision of section 2 of Act No. 250 reads as follows: "The County Judge and the Sheriff, County Clerk, Circuit Clerk, Treasurer and Assessor and their respective deputies shall receive the respective compensations as now fixed by the Initiative Act for Union County, as adopted at the General Election for the year 1932."

Section 2 has no application to Union county other than the above quotation; therefore, it must be admitted that this is a clear exemption of Union county from the provisions and application of section 2 of said act.

Since Union county has been exempted from the provisions of section 2 of Act No. 250 of 1933 under the doctrine as laid down by this court in Webb v. Adams, 180 Ark. 713, 23 S.W.(2d) 617, 621, this section is local and special in its application.

In Webb v. Adams, just cited, this court said in reference to an exemption of one county from the application of the enactment, "Now, if a general law must apply throughout the territorial limits of the state, the exclusion of one or more counties from its provisions makes it a local statute."

The exemption of Union county from application of the provisions of section 2 of said act brings it squarely within the teeth of the case just cited, and we have no hesitancy in holding that section 2 of Act No. 250 of 1933 is local and special in its application.

Since determining that section 2 of said act is local and special in its application, it then behooves us to determine whether or not it is administrative in its purposes and therefore justified, notwithstanding it is local and special under previous decisions of this Court.

Amendment No. 14 to our Constitution reads as follows: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts."

In the case of Cannon v. May, 183 Ark. 107, 35 S.W.(2d) 70, reading from the first headnote, this court held: "Acts 1929, No. 150, placing the treasurer and clerk of the county and probate courts on salary, is unconstitutional, being a `local or special act' within the prohibition of amendment 12 [14] to the Constitution, since it applies to only one county in the State."

In the earlier case of Smalley v. Bushmiaer, 181 Ark. 874, 31 S.W.(2d) 292, this court held that an act fixing the compensation of the sheriff of Crawford county and the deputy clerk of said county to be local and special legislation and therefore prohibited by Amendment No. 14 to our Constitution.

In the case of Powell v. Durden, 61 Ark. 21, 31 S. W. 740, this court expressly held that an act of the Legislature fixing the salaries of officials of Sebastian county was a local act under the Constitution of this state.

In all the cases which have appeared in this court wherein county officials' salaries were involved by acts of local application we have uniformly held that such acts were local in their application and special in their nature.

It is true that this court, in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, held that statutes establishing or abolishing separate courts relating to the administration of justice were not local or special in their operation, but it would certainly be a long step for this court to now hold that a county official salary act, as set up in section 2 of Act No. 250, was in aid of the administration of justice, and, therefore, one in which the state would be interested in its sovereign rights. By implication this doctrine was denied by this court in Cannon v. May and Smalley v. Bushmiaer, cited supra, and other cases recently decided by this court.

It is next most earnestly contended on behalf of appellants that since section 4 of article 16 to the Constitution of 1874, providing, "The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law," it is and was the imperative duty of the Legislature to fix the salaries of the county officials by either general, special, or local legislation and that special or local legislation is not prohibited because of this constitutional mandate.

This contention was so strenuously argued in the case of Webb v. Adams, cited supra, and received such serious consideration as to evoke a dissenting opinion by three Justices of this court, but the court in the end specifically held against this insistence in the following language: "It is true that article 14 of our Constitution deals with the subject of education and requires the Legislature to make provision for the support of our common schools. It does not require, however, the Legislature to accomplish that purpose by local or special legislation."

In our opinion it is immaterial whether or not local legislation is induced by constitutional mandate or is passed because not prohibited by the Constitution. If such legislation is invalid, it is not strengthened by the fact that it was superinduced by constitutional mandate. It is the duty of this court to harmonize all provisions of the Constitution and amendments thereto and to construe them with the view of a harmonious whole.

The objective of the constitutional mandate found in section 4 of article 16 can be fully accomplished by general legislation throughout the state, and we know of no other method to be pursued so long as the Fourteenth Amendment is permitted to stand.

It is next insisted on behalf of appellants that since this court has held in Matthews v. Byrd, cited supra, that sections 5 and 6 of Act No. 250 of 1933 were constitutional and valid enactments, therefore, under the doctrine of State v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am. St. Rep. 79, all the provisions of this act thereby became constitutional and valid. This contention is based upon the theory that where a substantial portion of an enactment is general in its application, other and minor provisions of the act would stand, notwithstanding they do not have application to all sections of the state.

It is true this court cited State v. Pitts with approval in the case of Webb v. Adams on the question of an exemption of one county, but it does not follow from this that we must adhere to all that is said in the...