Webb v. Adams

• Decision Date: 23 December 1929
• Docket Number: 63
• Parties: WEBB v. ADAMS
• Court: Arkansas Supreme Court

23 S.W.2d 617

180 Ark. 713

WEBB v. ADAMS

No. 63

Supreme Court of Arkansas

December 23, 1929

Appeal from Pike Chancery Court; C. E. Johnson, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellee a citizen and taxpayer of Pike County, brought this suit challenging the validity, as unconstitutional, of act 149 of the General Assembly of Arkansas, approved March 15, 1929 entitled "An act to provide for an optional county unit or a consolidated school system for the several counties of the State of Arkansas, by popular vote of the people."

It was alleged that its provisions were in conflict with the Constitution in several respects, and especially that it was by its terms, (§ 14 of act 149, "the provisions of this act shall in no way apply to or affect Gosnell Special School District, in Mississippi County, Arkansas; provided also, that the provisions of this bill shall not apply to Faulkner and Sharp counties"), a local or special act, violative of the Constitutional Amendment No. 17 prohibiting the General Assembly from passing any local or special act.

Appellant demurred to the complaint, and, the demurrer being overruled, declined to plead further, and the court declared the act unconstitutional and void, and enjoined the board of education from undertaking to carry out its provisions, and from this decree the appeal is prosecuted.

Decree affirmed. Motion denied.

John Owens, Claude A. Rankin and Pinnix & Pinnix, for appellant.

Tom Kidd, for appellee.

KIRBY, J., MEHAFFY, MCHANEY and BUTLER, JJ., dissenting. HART, C. J., on rehearing.

OPINION

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

KIRBY, J., (after stating the facts).

The act appears, from its title indicating the purpose and its terms, to be general, providing for an optional county unit or a consolidated school system for the State, operating equally and uniformly throughout the State, but for the proviso or exception in § 14 reading: "The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi County, Arkansas. Provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties."

Amendment No. 17 reads: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts." The language of the amendment is plain and unambiguous, and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the Constitution on the legislative power relative to the passage of local or special legislation, leaving its exercise to the discretion of the Legislature, had been so disregarded and abused as to create an intolerable condition. Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the State were excepted, and this amendment was adopted to remedy the evil, and the power of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special act. The effect of excepting from the provisions and operation of the act the Gosnell Special School District and the counties of Faulkner and Sharp was to leave the law applicable only to the remainder of the State not so excepted and the law as to the excepted territory unchanged, as though act 149 of 1929 had not been enacted. Casey v. Douglas, 173 Ark. 641, 296 S.W. 705.

If two counties and a special school district can be excepted from the provisions of a law otherwise general and operative equally and uniformly throughout the whole State, there would be no reason to say that twenty-five or fifty counties or seventy-four of the seventy-five counties of the State could not be so excepted, leaving its application as a general law to but one county, abrogating by legislative determination and judicial construction the Constitutional Amendment prohibiting the Legislature from passing "any local or special act." The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute. Davis v. Clark, 106 Pa. 377; State v. Mullica Twp., 51 N.J.L. 412, 17 A. 941; Miller v. Kister, 68 Cal. 142, 8 P. 813; Township of Lodi v. State, 51 N.J.L. 402, 18 A. 749, 6 L. R. A. 56. The courts look to the substance and practical operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. 25 R. C. L. p. 815; 1 Lewis' Sutherland, Statutory Construction, p. 359. A local law is one that applies to any subdivision or subdivisions of the State less than the whole. 3 Words & Phrases, Second Series, p. 172. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate. Van Cleve v. Passaic Valley Sewerage Cm'rs, 71 N.J.L. 183, 58 A. 571, 572; Ry. v. Hanniford, 49 Ark. 291, 5 S.W. 294; Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785.

This act, by reason of the express provision excepting certain counties of the State arbitrarily from its operation and limiting it to the territory not excepted, becomes local or special within the meaning of the Constitutional Amendment, and was beyond the power of the Legislature to enact, and is consequently void and of no effect, and the court did not err in so holding.

The decree is affirmed.

MEHAFFY, MCHANEY and BUTLER, JJ., dissenting.

DISSENT BY: BUTLER

BUTLER J., (dissenting). The majority of the court has concluded that the provision in § 14 exempting a special school district in Mississippi County and the counties of Faulkner and Sharp from the provisions of bill renders the entire act void as a local bill and within the prohibition of Amendment No. 17, and has therefore decided that the act is unenforceable.

From this decision I must respectfully dissent.

The duty was cast upon the General Assembly by § 1, article 14, Constitution of 1874, to "maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction." This the State has been endeavoring to perform since the adoption of the Constitution with but indifferent success, so that today Arkansas lags behind the majority of its sister States in the point of the average education of its citizens. In some communities there were, because of greater local wealth and number of population, ample funds for educational purposes, while in others the funds for that purpose were wholly inadequate. A part of the youth of the State was being educated, a part growing up in ignorance.

An enlightened public conscience became aware that it was the duty of the richer and more favored localities to aid in the education of the children of the poorer communities, and, heeding its voice, the General Assembly of 1929 passed the law under consideration, in aid of other legislation recently passed by which it was expected that educational facilities throughout the State might become equal and uniform, and the blight of illiteracy banished from within our borders.

As gathered from the title and subject-matter of act No. 149, it was the intention of the Legislature to provide for an optional county unit or consolidated school system for the several counties of the State by popular vote. The inclusion of the proviso must have been deemed an immaterial matter, because before the law could become applicable to the counties named in the provision, a majority of the people must have given their assent. But the proviso was in direct conflict with the purpose of the act, which was to provide for an optional uniform county unit system for the conduct of the schools for the entire State. In order for the act to fail because of the proviso, this court must determine that, without the proviso, the Legislature would not have passed act No. 149.

Could it be rationally supposed that the Legislature by the enactment of the "County Unit System" was indulging in a mere vain and useless gesture, and in order that this might be the result inserted the proviso. Was it their intention to deceive and beguile the people, which, when it asked for a fish, would be given a serpent?

In any view of the case, can it be assumed that it did not intend and would not have passed the act with the proviso omitted? I say no. The history of the State, the traditions of the legislative body, the necessity for the law, the unmistakable language of the statute itself, the practically unanimous vote by which the statute was enacted, all cry out against any such assumption; but rather from all of this the conclusion is inescapable that if the Legislature, doubtless esteeming the inclusion of the proviso unimportant, had anticipated that the proviso would have made the bill a local measure it would have declined to include it and would have passed the act without it.

It is elementary that every reasonable rule of construction must be resorted to in order to save a statute from unconstitutionality, and presumptions should be indulged in to uphold the validity of laws and not to strike them down and where one construction would render it void and another would render it valid, the latter should be adopted. Standard...