Tindall v. Searan

• Decision Date: 10 February 1936
• Docket Number: 4-42299
• Citation: 90 S.W.2d 476,192 Ark. 173
• Parties: TINDALL v. SEARAN
• Court: Arkansas Supreme Court

90 S.W.2d 476

192 Ark. 173

TINDALL v. SEARAN

4-42299

Supreme Court of Arkansas

February 10, 1936

Appeal from Arkansas Chancery Court, Southern District; Harvey R Lucas, Chancellor; reversed.

Action by J. W. Searan against certain county officers of Arkansas County. A. A. Tindall and others, taxpayers, intervened. From the decree interveners have appealed.

Decree reversed and cause dismissed.

Geo F. Hartje, O. M. Young and W. A. Leach, for appellants.

A G. Meehan, J. W. Moncrief and M. F. Elms, for appellees.

OPINION

MEHAFFY, J.

At the general election held on November 6, 1934, the qualified electors of Arkansas County initiated and adopted a salary act fixing the salaries of all county officers except surveyor and coroner. The initiated act itself provided that it should become effective on January 1, 1935, and after January, 1935, the salaries fixed in said act have been received by the county officers.

On October 7, 1935, this action was brought by J. W. Searan, as a taxpayer, against the county officers, naming them. The purpose of the suit was to have the salary act declared void and ineffective.

On November 4, 1935, the county officers who were made defendants filed a general demurrer to each separate paragraph of the complaint, and on the same day A. A. Tindall and others, as taxpayers of Arkansas County, intervened and also filed a demurrer to the entire complaint and to each paragraph.

On November 11, 1935, the court overruled the demurrers, and the appellees declined to plead further, whereupon final judgment was entered holding said act to be void and of no effect, and a restraining order was issued, as prayed in the complaint. The case is here on appeal.

The complaint alleged that the salary act was void for many reasons, and attention will be called to the reasons given.

The appellees insist that the questions raised here were not presented either to the trial court or this court in the case of Dozier v. Ragsdale, 186 Ark. 654, 55 S.W.2d 779, nor in any other suit involving the validity of such an act. It is earnestly argued that the questions here raised are controlled by the opinion of this court in State ex rel. Little Rock v. Donaghey, 106 Ark. 56, 152 S.W. 746.

The only thing decided in the last-mentioned case was whether more than three amendments could be submitted at any one election. The Initiative and Referendum Amendment that had been adopted provided that constitutional amendments might be submitted by the people. Said amendment stated that the people of the State reserved to themselves power to propose laws and amendments to the Constitution, etc. The court held in the Donaghey case, supra, that the previous provisions of the Constitution are to be harmonized when not necessarily inconsistent or repugnant, and that, since the Constitution authorized only three amendments, to harmonize the amendment with the Constitution, only three amendments could be submitted, both by the Legislature and the people, and that the first three submitted, if adopted, if more than three were submitted, became a part of the Constitution.

Section 22 of article 19 of the original Constitution provided that either branch of the General Assembly might propose amendments to the Constitution, but that no more than three amendments shall be proposed or submitted at the same time. And, as already said, the court concluded that, when the amendment was considered together with the Constitution, only three amendments could be submitted. After this decision, another initiative and referendum amendment was submitted to the people at the general election, November 2, 1920. This last initiative and referendum amendment expressly provides that no limitation shall be placed upon the number of constitutional amendments.

It is contended by the appellees that a local act cannot be adopted by a county concerning a matter over which the General Assembly is given exclusive and mandatory control by the Constitution, and that in a recent case this court said: "The Constitution provides that the Legislature, not the quorum court, shall fix the number of deputies and their salaries. * * * We think, when the whole case is read, there can be no question but what it holds that the Legislature, and not the quorum court or any other body, has the authority to fix the number of deputies and their compensation."

In this connection appellees refer to the case of Pulaski County v. Caple, 191 Ark. 340, 86 S.W.2d 4. We were discussing there § 4 of article 16 to the Constitution of the State of Arkansas. That provision of the Constitution was adopted long before the initiative and referendum amendment was adopted, and when the legislative powers of the people was vested alone in the General Assembly. No one would contend now that the people of the State did not have the right under the Initiative and Referendum Amendment to adopt a law fixing the number of deputies and their compensation. Any law that the General Assembly could have enacted prior to the adoption of the Initiative and Referendum Amendment may now be adopted by the people independent of the action of the Legislature. In other words, the number of deputies and their compensation is to be fixed by law, and authority to fix salaries cannot be delegated to the quorum court or any other body.

Appellees say that it does not appear in the opinion in the case of Dozier v. Ragsdale, supra, that the question of the constitutionality of the act was raised. We did say, however, in that case: "In 1910 the people of Arkansas adopted a constitutional amendment reserving the right and power to themselves to propose legislative measures, laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the General Assembly. That amendment undertook to provide for local legislation, but it read: 'The people of each municipality, each county, and of the State, reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the General Assembly,' etc.

"No one doubted at that time, and no one doubts now, that the people, in adopting this amendment thought they were providing for local legislation in counties by initiating acts. But it will be observed that the reservation of power and authority to initiate and enact laws was in the same paragraph that the power was reserved to enact constitutional amendments, and this court held that that part of the amendment adopted in 1910 was meaningless." Dozier v. Ragsdale, supra.

The present Initiative and Referendum Amendment was adopted in 1920. The fact that the people adopted this provision a second time, and having written it in such plain language that it cannot be misunderstood by any one, shows clearly that the people intended to reserve to themselves the right to pass all local laws affecting the counties.

Moreover in 1926 the people of the State initiated and adopted an amendment to the Constitution which prohibited the General Assembly from passing any local or special act. Therefore there is no possible way to pass a local act except under the provisions of the Initiative and Referendum Amendment. They have not only reserved this right to themselves, but have prohibited the General Assembly from passing any local law. It was contended in the Union County case that the measure adopted by Union County was contrary to the general law of the State, and therefore violative of the constitutional amendment which prohibits counties from...