Waterman v. Hawkins

• Decision Date: 15 April 1905
• Citation: 86 S.W. 844
• Parties: WATERMAN et al. v. HAWKINS, Chancellor.
• Court: Arkansas Supreme Court

86 S.W. 844

WATERMAN et al. v. HAWKINS, Chancellor.

Supreme Court of Arkansas.

April 15, 1905.

Petition by Gus Waterman and others for peremptory mandamus against M. L. Hawkins, chancellor, to compel the holding of a term of court in the Watson district of Desha county. Writ denied.

Taylor & Jones and J. Bernhardt, for petitioners. T. M. Hooker, X. O. Pindall, F. M. Rogers, and Campbell & Stevenson, for respondent.

McCULLOCH, J.

The General Assembly, by an act approved February 12, 1881 (Laws 1881, p. 5), established a certain portion of the territory of Desha county as a separate judicial district, to be known as the "Watson District of Desha County," and provided that regular terms of the circuit and probate courts should be held therein, with jurisdiction coextensive with the boundaries described. Jurisdiction over the remaining territory of the county was left in the courts to be held at the county seat—Arkansas City. Upon the establishment of the Second Chancery District, it was provided that terms of the chancery court should be held in the Watson district of Desha county. The General Assembly at the session of 1905 passed an act, approved February 25, 1905, abolishing the said Watson district of Desha county, and providing for the transfer of causes pending in the several courts of that district, and for other purposes. The sections of the latter act which are material to the consideration here are as follows:

"Section 1. That the separate circuit, chancery and probate courts now provided for by law in the Watson district of Desha county, be and the same are hereby abolished, and that what was formerly known as the Watson district of Desha county, be dispensed with and abolished.

"Sec. 2. That all causes, actions or proceedings now pending in or before either the chancery court or the probate court of said Watson district, be transferred to the chancery court or probate court at the county seat of Desha county, and stand for hearing or proper action by the court at the next regular term of the said chancery or probate court at the county seat.

"Sec. 3. That all causes, actions or proceedings, civil or criminal, now pending before the circuit court of Desha county for the Watson district, be and the same are by this act transferred to the Desha circuit court for the Arkansas City district, and shall stand for hearing to the regular January, 1906, term of said court, the same as regards venue as though said causes had originally begun at said circuit court for said Arkansas City district."

The petitioners, Waterman and others, present their petition to this court, attacking the validity of said act, and alleging that some of them are taxpayers and citizens of the Watson district of Desha county, and that the others have litigation pending in the chancery court of said district; that the respondent, Hon. M. L. Hawkins, who is chancellor of the Second Chancery District, has refused to hold a regular term of the chancery court in the Watson district on the third Monday in April, 1905, the day fixed by statute for the holding of said term; and they pray for a writ of peremptory mandamus from this court, requiring him to hold the court.

The validity of the act abolishing the Watson district is challenged on the ground (1) that it is a "local or special bill," within the meaning of the language of the Constitution, and that no notice thereof was given as required by the Constitution; (2) that the act is so unintelligible in the provision as to transfer of causes pending in the chancery and probate courts that the meaning cannot be ascertained; (3) that the act postpones the trial of civil and criminal causes pending in the circuit court of the Watson district until the regular January term, 1906, of the circuit court of the county, to be held at the county seat, thereby denying the litigants in said actions the right of a speedy trial.

1. Section 26 of article 5 of the Constitution of 1874 provides as follows: "No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall be at least thirty days prior to the introduction into the General Assembly of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the General Assembly before such act shall be passed." It is alleged in the petition, and shown by an affidavit of one of the petitioners, that no notice was published, in conformity with the above provision, of an intention to apply for the passage of the act. This point was expressly passed upon by this court in Davis v. Gaines, 48 Ark. 370, 3 S. W. 184, and it was decided that "if the General Assembly chose to disregard this requirement, and to enact a local or special law without notice, no issue upon the subject of notice can be raised in the courts." The court was also in that case dealing with the kindred subject as to whether the statute under consideration violated the provision of the Constitution that "in all cases where a general law can be made applicable no special law shall be enacted," and it was held that the lawmaking body was the exclusive judge of the question whether a general law could be made applicable. Judge Smith, speaking for the court, said: "Nevertheless the Constitution leaves the Legislature a very large discretion in determining when a general law can be made applicable. And according to the adjudged cases, the Legislature is the sole judge whether provision by a general law is possible, except in the enumerated cases of changing the venue in criminal cases, changing the names of persons, adopting and legitimating children, granting divorces, and vacating roads, streets, or alleys. The provisions are merely cautionary to the Legislature." The same rule is announced in other decisions of this court. Boyd v. Bryant, 35 Ark. 73, 37 Am. Rep. 6; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; State v. Sloan, 66 Ark. 579, 53 S. W. 47, 74 Am. St. Rep. 106; St. L. S. W. Ry. Co. v. Grayson, 72 Ark. ___, 78 S. W. 777. The Constitution provides that the evidence of publication of the required notice shall be exhibited in the General Assembly before the passage of any such local or special bill. It was the manifest intention of the framers of the Constitution to make the Legislature the sole judge of the question of the publication of the required notice, and in testing the validity of such act the court must indulge the conclusive presumption that evidence of such pulication was properly exhibited before the passage of the act. The utmost confusion would necessarily result if the court should enter upon the inquiry to determine whether or not the notice had in fact been given. Says Judge Cooley: ...