State ex rel. Burrow v. Jolly

• Decision Date: 26 June 1944
• Docket Number: 4-7381
• Citation: 181 S.W.2d 479,207 Ark. 515
• Parties: State ex rel. Burrow v. Jolly, County Judge
• Court: Arkansas Supreme Court

181 S.W.2d 479

207 Ark. 515

State ex rel. Burrow v. Jolly, County Judge

No. 4-7381

Supreme Court of Arkansas

June 26, 1944

Appeal from Randolph Circuit Court; John L. Bledsoe, Judge.

Affirmed.

George M. Booth, for appellant.

Harrell Simpson, George H. Steimel and W. J Schoonover, for appellee.

OPINION

Griffin Smith, Chief Justice.

Appeal is from a Randolph Circuit Court judgment that Act 73, approved February 19, 1943, ^[1] invades Amendment No. Fourteen to the Constitution. We agree that it does.

The Act, initially, directs appointment (and later election) of road overseers ". . . in any of the counties having a population between 18,300 and 18,350, or which may hereafter contain a population of not less than 18,300 nor more than 18,350."

According to the 1940 Federal Census, Randolph County had a population of 18,319 -- nineteen more than the minimum, and thirty-one less than the maximum, mentioned in the Act. No other county falls within the so-called "classification."

By mandamus it was sought to compel the County Judge to make appointments pending the election.

Appellant thinks the decision in Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330, is authority for the proposition that population as a basis -- that is, not more nor less than stipulated figures (and this regardless of a narrow range) -- sufficiently lifts an enactment from a local or special classification, with the result that ills sought to be prevented by Amendment Fourteen are not present.

Substance of the Murphy-Cook case is that a law applicable to counties within which there are cities having a population of 5,000 or more ^[2] is not predicated upon a static condition, nor is it so arbitrarily circumscribed as to infringe rules of construction previously announced as controlling. See Lemaire v. Henderson, 174 Ark. 936, 298 S.W. 327; McLaughlin v. Ford, 168 Ark. 1108, 273 S.W. 707; Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811.

The general principle was stated by Chief Justice Hart in Simpson v. Matthews, 184 Ark. 213, 40 S.W.2d 991. The Amendment, said the Chief Justice, was intended to prevent arbitrary classification "based on no reasonable relation between the subject-matter of the limitation and classification made." It was then said: "The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is . . . is made for the purpose of evading the Constitution. If the judgment of the Legislature must control in all cases, the Amendment could serve no purpose, and the people might just as well not have initiated and adopted it."

A quotation from Ruling Case Law, cited in State ex rel. Atty. Gen. v. Lee, 193 Ark. 270, 99 S.W.2d 835, asserts that in determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form, and phraseology, "because otherwise prohibitions of the fundamental law against special legislation would be nugatory."

When we apply this rule to the instant case there can be but one answer: the Act was designed to favor Randolph County. Restrictions have the inevitable and intended result of excluding other counties.

Of course it may be argued that elasticity is found...