Stillwell v. Jackson

• Decision Date: 16 December 1905
• Citation: 93 S.W. 71,77 Ark. 250
• Parties: STILLWELL v. JACKSON
• Court: Arkansas Supreme Court

93 S.W. 71

77 Ark. 250

STILLWELL v. JACKSON

Supreme Court of Arkansas

December 16, 1905

Appeal from Ashley Circuit Court; Z. T. WOOD, Judge; affirmed.

Petition by T. A. Jackson to the circuit court of Ashley County for mandamus to compel Henry Stillwell, the collector of taxes to accept from the petitioner county warrants in payment of his taxes levied for county purposes.

The circuit court sustained the prayer of the petition, ordered the issuance of a peremptory writ of mandamus, and the collector appealed to this court.

Judgment affirmed.

Robert E. Craig, John B. Jones and T. M. Hooker, for appellant.

The act (Kirby's Digest, § 1499) fixes the expenses for which appropriations are to be made, and against which ordinary county warrants are to be drawn. The construction of courthouses is provided for by separate statute, the act authorizing their construction was a specal act, and no previous appropriation by the quorum court is necessary to sustain a levy of tax for the construction of a courthouse. 63 Ark. 397. For contracts for ordinary county purposes an appropriation is necessary, or such contracts are void. 54 Ark. 645. A tax levied for the purpose of building a courthouse is a special tax, and could not be paid with warrants drawn on the treasurer payable out of any money appropriated for ordinary county purposes. Sec. 11, art. 16 Const.; 27 Ark. 607. Each levy is a separate and distinct tax, and must be discharged in money, or by warrants drawn on that particular fund. 23 Barb. 338; 63 Ark. 397; 68 Ark. 347. Neither § 10, art. 16, Const., nor § 1174 Kirby's Digest, has any reference to a special courthouse tax. The county court had a right to levy the tax in currency for building the courthouse, and to contract for its erection, to be paid in currency. 36 Ark. 577; § 28, art. 7, Const.; § 1011, Digest. The obligation of the county to pay in currency cannot be impaired by absorption of the fund created by the special levy with ordinary county warrants. 28 Ark. 333; 36 Ark. 577.

J. M. More, W. B. Smith and T. E. Mears, for appellee.

The levy for the building the courthouse was a county tax, and the warrant tendered was properly receivable in payment of such tax. 28 Ark. 323; 29 Ark. 354; 34 Ark. 356; 30 Ark. 558; 36 Ark. 487; 39 Ark. 139; 72 Ark. 27; 57 Ark. 554; 50 Ark. 393. All county warrants are receivable for any taxes for county purposes, except interest on the public debt and sinking fund, and for all debts due the county by whose authority the same were issued. Kirby's Digest, § 1174; Ib. § 1466. The decision in 27 Ark. 607, on the point that a tax for a specific purpose must be paid in currency or in warrants drawn on that specific fund, was overruled in 28 Ark. 323. Whatever sums the county authorities are authorized to levy for public purposes constitute a county tax. 28 Ark. 323; 32 Ark. 414; Ib. 619; 29 Ark. 353. Warrants drawn by the clerk, specifying the funds or appropriations against which they are drawn, are then receivable for all taxes lawfully levied by the county court. 34 Ark. 356-370; 36 Ark. 487; 37 Ark. 110.

MCCULLOCH J. BATTLE, J., dissenting.

OPINION

MCCULLOCH, J.

The county court of Ashley County made an order for the construction of a new courthouse, a contract was made for the construction of the building, and the same has been completed. This order was made at the October term, 1903, of the levying court, and that court, after making the appropriations for the various items of ordinary expenses of the county for the current year, and levying a tax of three mills to cover the same, made the following order with reference to the new courthouse:

"It is ordered by the court that the sum of $ 40,000 be and the same is hereby appropriated and set apart to build a new courthouse. It is further considered and order by the court that a special levy of two mills tax on the dollar be and the same is hereby levied on all the taxable property of Ashley County to build a new courthouse, and that said tax be receivable only in currency or proper warrants drawn by proper order on the courthouse fund."

The contract for the construction of the building stipulated that the contract price should be paid in "warrants drawn on the courthouse fund, as provided for in the order of the Ashley County Levying Court, at its October term, 1903." A similar levy of taxes for the year 1904 was made by the court at the October term, 1904. Appellee, Jackson, being a taxpayer of the county and the holder of a warrant issued by the county court in his favor on the treasurer of the county to be paid out of the funds appropriated for ordinary county purposes, tendered the warrant to the tax collector in payment of that part of his taxes levied for all county purposes, including the so-called special levy for erection of courthouse. Upon the refusal of that officer to accept the warrant, he brought this suit to compel its acceptance.

The sole question presented is, whether or not a tax levied for this purpose can be paid in county warrants drawn upon funds appropriated for ordinary county purposes.

The various statutes of this State which, it is claimed, authorize the payment of county taxes in county warrants, as found in Kirby's Digest, are as follows:

"Sec. 1466. All warrants drawn on the treasury shall be paid out of any money in the treasury not otherwise appropriated, or out of the particular fund expressed therein, and shall be received, irrespective of their date and number, in payment of all taxes and debts accruing to the county."

"Sec. 1174. All county warrants and county scrip shall be receivable for any taxes for county purposes except for interest on the public debt and for sinking fund, and for all debts due the county by whose authority the same were issued. * * * Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution." Act December 14, 1875.

"Sec. 7056. The collector shall receive county warrants in payment of county taxes. * * * Provided, this section shall not be so constructed as to compel the acceptance of any order or warrant that by the laws of this State was required to be funded." Act of March 31, 1883, § 112.

It is plain, from the language of these several statutes, that the Legislature meant to provide that all county warrants shall be received in payment of any county taxes, except for taxes levied to pay indebtedness of the county which existed prior to the adoption of the Constitution of 1874. The reason for the exception is obvious, and is found in the language of the Constitution marking a distinction between the limit of taxation for the two purposes. This intention is clearly recognized by a line of decisions of this court beginning with a decision rendered at an early day in the history of the State, construing a statute in force to this day. State v. Rives, 12 Ark. 721; Wallis v. Smith, 29 Ark. 354; Worthen v. Roots, 34 Ark. 356; Parham v. Izard, 30 Ark. 557.

From these statutes may be gathered an intention on the part of the lawmakers to give first care, so far as not in conflict with the organic law of the State, to the interest of the taxpayer, who is also a creditor of a county or municipality, by allowing him to pay his taxes due to those governmental entities with their respective warrants. That view seems to have appealed to the legislative sense of natural justice. As said by Mr. Justice EAKIN in Worthen v. Roots, supra: "It is a very remarkable thing that the right to use county warrants in payment of taxes should be crystallized into a constitutional provision, and indicates a strong sense in the convention of the evil and danger to the very framework of our government (which is built upon counties) of allowing the county debt to become utterly valueless to the citizen, as well as the hardship to the citizen of compelling services which would be, to all practical intents, gratuitous."

The only discordant view expressed in any of the decisions of this court is a dictum in the case of Wells v. Cole, 27 Ark. 603, which has been overruled by subsequent decisions. English v. Oliver, 28 Ark. 317; Parham v. Izard, supra. There is language in the opinion in that case expressing a contrary view, but the point raised and decided was altogether different from the question now being discussed.

It is urged by learned counsel for appellant that the tax levied for erecting a courthouse is a special tax, in the meaning of the Constitution; that the statutes were not meant to allow a county tax levied for a special purpose to be paid in warrants issued on a different county fund; and that, if they were so meant, they are in conflict with the Constitution, and to that extent are void.

The several sections of the Constitution of 1874 bearing on the subject are found in article 16, and are as follows:

"Sec 9. No county shall levy a tax to exceed one-half of one per cent. for all purposes, but may levy an additional one-half of one per cent. to pay indebtedness existing at the time of the ratification of this Constitution.

"Sec. 10. The taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities, respectively.

"Sec 11. No...