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P. Hamby to enjoin building of jail in Ne-, ty sought to enjoin the construction of a vada county. A demurrer to the complaint jail in that county, and the complaint filed in the first case was sustained, and complain-by him contains allegations raising the same ant appeals; and in the second case a de question as is presented in the Lonoke counmurrer was overruled, and defendants ap- ty case. A demurrer to this complaint was peal. Decree in the first case affirmed, and filed and overruled, and the commissioners in the second case reversed.
stood on their demurrer and have appealed. In Kirk v. High:
The same question is, therefore, presented in Trimble & Trimble, of Lonoke, for appel- both appeals, and a single opinion will suffice lant.
to dispose of both cases. W. J. Waggoner and Chas. A. Walls, both
The controlling question in the case is the of Lonoke, for appellee.
effect of the adoption of the Eleventh Amend
ment to the Constitution of the state. This In Mitchell v. Hamby:
amendment was adopted by the people at the Dexter Bush, of Prescott, for appellants. general election of 1924, as declared by the Randolph P. Hamby, of Prescott, pro se.
court in the case of Brickhouse v. Hill (Ark.)
268 S. W. 865. SMITH, J. Case No. 9154 is the suit of This amendment was adopted as an amend. a citizen and taxpayer of Lonoke county, ment to section 4 of article 12 of the Consti. who, for the benefit of himself and all other tution, and the portion thereof relevant to taxpayers of that county, filed a complaint the facts involved in the pending appeals in which he alleged that the county judge reads as follows: and three other citizens of the county are the
"The fiscal affairs of counties, cities and induly qualified commissioners for the con- corporated towns shall be conducted on a sound struction of a courthouse for that county. It financial basis, and no county court or levying was alleged that, at the regular term of the board or agent of any county shall make or quorum court of Lonoke county, it had been authorize any contract or make any allowance unanimously voted to erect a courthouse at for any purpose whatsoever in excess of the a cost not to exceed $150,000, the same to be revenue from all sources for the fiscal year in paid for in not to exceed 20 annual install- which said contract or allowance is made; nor
shall any county judge, county clerk, or any ments not exceeding $10,000.00 in any one other county officer, sign or issue any scrip, year, and the sum of $10,000.00 was appro- warrant or make any allowance in excess of priated to be paid out of the revenues of 1924 the revenue from all sources for the current as the first payment. It was alleged that the fiscal year; nor shall any city council, board of quorum court of the county had pledged the aldermen, board of public affairs, or commisfaith and credit of the county to set aside sioners, of any city of the first or second class, not to exceed one mill, or so much thereof
or any incorporated town, enter into any con
tract or make any allowance for any purpose as was necessary, of the annual 5-mill tax whatsoever, or authorize the issuance of any for county purposes to meet the annual ap- contract or warrants, scrip or other evidence propriation to be made under the terms of of indebtedness in excess of the revenue for the resolution of the quorum court, which such city or town for the current fiscal year; directed the county judge, in conjunction nor shall any mayor, city clerk, or recorder, or with the commissioners, to execute a contract any other officer or officers, however designated, for the construction of the courthouse,
of any city of the first or second class or inIt was further alleged that the total assess corporated town, sign or issue any scrip, war
rant or other certificate of indebtedness in exed value of the real and personal property cess of the revenue from all sources for the is approximately $10,000,000, and that the 5- current fiscal year." mill tax for county general purposes would yield only about $50,000 per year, and the Other portions of the amendment provide 1 mill pledged to be used for the payment of that the counties, cities, and incorporated the annual appropriation to build the court towns of the state may pay their outstanding house will yield only about $10,000, and that indebtedness by issuing negotiable bonds, and, the county's total revenues from all other ad- after authorizing that action, it is further ditional sources is only $10,000 per annum. provided that: It was further alleged that, notwithstand
"Where the annual report of any city or ing these facts, the commissioners proposed county in the state of Arkansas shows that to let a contract for the construction of a scrip, warrants, or other certificates of indebtbuilding the cost of which may amount to edness had been issued in excess of the total $150,000, and that the contract will be let revenue for that year, the officer or officers of unless they are enjoined from so doing the county or city or incorporated town, who There was a prayer that the commissioners authorized, signed or issued such scrip, warbe enjoined from entering into the proposed be deemed guilty of a misdemeanor, and, upon
rants or other certificates of indebtedness, shall contract.
conviction thereof, shall be fined in any sum not A demurrer to this complaint was filed and less than five hundred dollars por more than sustained, and the taxpayer has appealed. ten thousand dollars, and shall be removed
In case No. 9152 a citizen of Nevada coun- | from office."
(273 S.W.) Does this amendment operate to prohibit in the state has ever, or will ever, pay the the counties of the state from building court- total cost of a courthouse out of the revenues houses and jails where the cost of such of the county for a single year. As was buildings would exceed the sum that can be said by Chief Justice Bunn in the case of appropriated and paid in any one year out Hilliard v. Bunker, 68 Ark. 340, 58 S. W. 362: of county funds for such purposes? We think the purposes of this amendment of a courthouse and jail, it is not of course
"In such an expensive matter as the building were, first, to enable the cities, counties, and expected, under ordinary circumstances, to covincorporated towns of the state to pay their
er the whole amount by the levy for one year outstanding indebtedness by an issue of and in fact this cannot be done, since, together bonds, in other words, to get on a cash basis, with the ordinary expenses of the county, the and the second purpose was to prevent the levy for erecting these buildings must not ex
The counties, cities, and towns of the state from ceed in one year the rate of 5 mills. accumulating a floating debt which could not amount and number of the annual installments be paid out of the total revenues of the fiscal necessary to cover the whole cost of the struc
ture must be and is left to the discretion of the year; that is, the obligations payable in a levying court, to be exercised so as to accomgiven year must not exceed the revenues of plish the result intended in a reasonable time." that year. But does this mean that courthouses or
This language was quoted and approved in jails cannot be erected unless the total cost the recent case of Shofner v. Dowell (Ark.) of the construction can be paid out of the rev. 269 S. W. 588, 987, but as that case originatenues of a single year? We think not. The ed before the adoption of Amendment No. 11, rule by which amendments to the Constitu- all that was there said is not applicable here. tion are to be construed was stated in the
 Any payment a county makes for any case of Hodges v. Dawdy, 104 Ark. 583, 149 purpose during any year is a part of the S. W. 656, where it was said:
expense of that year, and where the total "The amendment being the last expression of revenues have been appropriated and disthe popular will in shaping the organic law of bursed, expenditures must cease. The fiscal the state, all provisions of the Constitution officer of the county, city or town whose duwhich are necessarily repugnant thereto must, ty it is to draw a warrant upon which the of course, yield, and all others remain in force. revenues would be paid out must cease drawIt is simply fitted into the existing Constitution, the same as any other amendment, dis- ing warrants under penalty of a fine and for. placing only such provisions as are found to feiture of his office when warrants have been be inconsistent with it. Like any other new drawn in a sum sufficient to exceed the reve enactment, it is a 'fresh drop added to the nues of a particular year. He overdraws at yielding mass of the prior law, to be mingled his peril. by interpretation with it.' State v. Sewell, 45 But this inhibition is not to be read too Ark. 387. In the construction of its terms, literally. A literal reading would prevent the and in the determination of its scope and effect, expenditure of surplus revenue which might the courts should follow settled rules of inter- be accumulated by a county, city or town, pretation."
to construct a building the cost of which In the application of this rule of construc-would exceed the revenue of a single year, tion the court refused to give a literal read for the penalty of the statute falls "where ing to certain phrases appearing in the the annual report
shows that scrip, amendment which was there construed, and warrants or other certificates of indebtedness assigned as the reason for so doing that, had been issued in excess of the total revenue "Such a construction leads to an absurdity, for that year.” and must be rejected for that reason. State If the amendment is read literally, it V. Smith, 40 Ark. 431."
would be fruitless for a county, city, or town  It is a matter of common knowledge, to accumulate a surplus to erect a building known to every citizen, that there is possibly which would exceed, with other necessary no county in the state which could build a expenditures, the revenues of a single year, courthouse, sufficient for use as such, and pay for if the annual report which the amendfor it out of the revenues of any single year. ment requires shows that this has been done, This could certainly not be done if the coun- the officer upon whose warrant the money ty paid the other ordinary and inevitable ex was disbursed would forfeit his office and be penses of government. The same thing is no subject to a fine. doubt true as to many counties in the matter We think the amendment means just this: of building jails.
That, if a county, city or town avails itself These are unusual and extraordinary ex- of the provision authorizing the taking up penses. They are not incurred annually. of its outstanding indebtedness, it shall not Ordinarily, courthouses and jails answer the thereafter draw warrants upon the treasurer purposes for which they were constructed for for an amount in excess of its annual revemany years. They are essential to the dis- nues. It must stay out of debt. It means, charge of the functions for which counties further, that, if a city, county or town has are created. It is not likely that any county any outstanding unpaid warrants which it
does not take up by issuing bonds as au-, lowed which would conflict with any other thorized by the amendment, it must not add provision of the Constitution unless it is abto its existing indebtedness by issuing more solutely necessary in order to give effect to warrants than can be paid out of the reve- the amendment. On the other hand, such nues of the current year.
construction should be given as will, if pos But it does not mean that the county sible, leave all the other provisions of the without a courthouse or a jail must dispense | Constitution unimpaired and in full force. with these essentials because they cannot be State ex rel. v. Donaghey, 106 Ark, 56, 152 fully paid for in one year. Counties may S. W. 746. contract for these buildings, and may ap In People v. Potter, 47 N. Y. 375, the idea portion the cost over a number of years, but | is clearly expressed by Judge Folger as folin doing so the other necessary expenses of lows: government must be taken into account, and
"The intent of the lawmaker is to be sought no authority be conferred upon the officers for. When it is discovered, it is to prevail over charged with the duty of issuing vouchers or the literal meaning of the words of any part of warrants to issue them for a sum which will the law. And this intent is to be discovered, .exceed the total revenues for any single year. not alone by considering the words of any part,
For instance, if Lonoke county has revenues but by ascertaining the general purpose of the not exceeding $60,000, and proposes to expend ed calling for the new enactment, and the rem
whole, and by considering the evil which exist$10,000 a year on a courthouse, then all other edy which was sought to be applied. And when expenditures must not exceed $50,000 per the intent of the whole is discovered, no part is year.
The sum to be paid in a particular to be so construed as that the general purpose year is “the contract or allowance” for that shall be thwarted, but all is to be made to conyear, and must be shown in the annual re- form to reason and good discretion.* port which the amendment requires the coun. And the same rules apply to the construction ties, cities, and towns to make, and this con- of a Constitution as to that of a statute law." tract or allowance must not, with all other
The same general rule was also clearly contracts or allowances payable that year, and concisely stated by Mr. Justice Walker be "in excess of the revenues from all sources
in State v. Scott, 9 Ark. 270, as follows: for the fiscal year in wbich said contract or allowance is made.” But, subject to this lim- of the amendment, we must keep in view the
“In determining the intentions of the framers itation as to payment, we do not think the Constitution as it stood at the time the amendamendment requires counties having no ment was made, the evil to be remedied by the courthouses or jails to attempt to function amendment, and the amendment proposed, by without them, and the counties may, there which the evil is to be remedied. No interfore, contract for their construction, provided pretation should be allowed which would conno obligation is incurred to pay a sum of flict with any other provision of the Constitumoney exceeding-in addition to other ex- tion, or which is not absolutely necessary in penditures—the total revenues of the year on the contrary, such construction should be
order to give effect to the proposed amendment. in which a, particular payment is to be made. given as will, if possible, leave all the other
It follows, from what we have said, that provisions in the Constitution unimpaired and the decree in the Lonoke county case will be in full force." affirmed, and the one in the Nevada county case will be reversed.
The above was quoted and approved in Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269.
In the application of these established rules HART, J. It has been aptly said that of construction it will be remembered that state Constitutions are framed for the very article 13 of our Constitution is devoted to purpose of adaptation to the progress of the counties, county seats, and county lines. times, and to be a general, not special, rule Counties are civil divisions of the state for of action and restraint.
political and judicial purposes and are its While it is true that in interpreting a auxiliaries and instrumentalities in the adConstitution it is to be read as it is written, ministration of its government. Cole v. still the Constitution and the amendments White County, 32 Ark. 45, and cases cited. thereto must be so interpreted as to give ef- Throughout the Constitution, counties are fect to every part thereof, and leave each recognized in various ways as civil divisions part some office to perform. It is a primary of the state for political and judicial purrule of construction that the Constitution poses. Counties are made the units of gov. must be considered as a whole, and, to get ernment for legislative, administrative, and at the meaning of any part of it, we must judicial purposes. read it in the light of other provisions re
Courthouses and jails are absolutely neclating to the same subject. Little Rock v. essary in the administration of the state govNorth Little Rock, 72 Ark. 195, 72 S. W. 785, ernment, and I do not think that the amendand State v. Clay County, 93 Ark. 228, 124 ment under consideration was designed to S. W. 757.
take away the powers, in the respect to re. No interpretation of the amendment un- pairing and erecting courthouses and jails, der consideration in this case should be al- which were possessed before its adoption.
(273 S.W.) I think such an interpretation of the amend-, termine whether a general statute repealed ment would be too narrow and literal, and a prior special one, and the decision has no would tend to defeat the very purposes which bearing, I think, on the interpretation of it was designed to effectuate. Therefore, I Amendment No. 11. think that the power to construct courthouses The Constitution of 1874 restricted tasaand jails is unchanged by the amendment. tion in counties to one-half of 1 per cent.
"for all purposes." Article 16, § 9. If the MCCULLOCH, C. J. I am not sure wheth-cost of construction of courthouses and jails er the opinion of the majority should be con
is exempt from the operation of Amendment strued to mean that the construction of court- No. 11, then it can be urged with equal force houses and jails is exempt from the restric- that those extraordinary expenses of governtions found in Amendment No. 11, or wheth- ment are exempt from the operation of the er the words, “make or authorize any con- constitutional restriction as to the amount of tract or make any allowance,” are held to be taxes; and yet never once during the 50 synonymous with the words, “sign or issue years since the adoption of the Constitution any scrip, warrant or make any allowance," of 1874 and amidst all the difficulties enso as merely to prohibit the issuance or the countered since then in the construction of making of allowances. There is reference public buildings by counties, no one has apthroughout the opinion to the construction peared with spirit so bold as to make any of courthouses and jails, as if those expenses such contention. The counties have all built were to be treated as exempt from the op-courthouses and jails without violating the eration of Amendment No. 11. But near Constitution with respect to the limit of taxthe conclusion of the opinion the court seems ation. to treat the different words of restriction as Turning to the other thought expressed in synonymous, and to hold that the restriction the opinion of the majority, namely, that applies only to the making of allowances or
the language of the amendment permits the issuance of warrants during a given fiscal making of contracts for the construction of year, and not to the making of contracts courthouses and jails, if the cost is spread for payments extending over a series of
over a term of years so as to limit the total years. I do not agree to either of those expense each year to the revenues thereof, theories, for I can find in the constitutional it seems to me that the position of the majoramendment no exemption whatever of any ity is equally untenable. If contracts may kind of expense, and it seems to me that the thus be made for the construction of courtlanguage is too broad and emphatic to re- houses and jails, why may not any other strict the prohibition to the mere allowance contract for legitimate expenses be made, reof claims and the issuance of warrants there-gardless of cost, if it is spread over a term on. The language not only fails to mention of years? If, in other words, the prohibiany exemptions from its operation, but on tion extends only to the allowance of claims the contrary it contains words of great em for the issuance of warrants, why cannot phasis in applying the restriction to con such a contract be made for any other legititracts or allowances "for any purpose what- mate expense? There is no distinction, as ever,” showing that the framers of the I have already said, to be found in the lanamendment intended exemption. If
guage of the amendment. If that interpretaforsooth, there are any exemptions, I scarce- tion of the contract is true, then the county ly see how they can be limited to the cost court or town council can make as many of constructing courthouses and jails, for contracts as they see fit for future payments, there are other public buildings in counties thus incurring unlimited obligations, if they and municipalities which are just as essen- do not make allowances or issue warrants tial to orderly government and to the pro- in excess of the revenues for the fiscal year. tection of the health and welfare of the With all respect for the opinion of my brethpeople. Other emergencies may arise which ern, I cannot bring myself to believe that are just as important as the construction of the framers of the Constitution intended any courthouses and jails. Then why should such result. It is contrary, I think, to the there be declared an implied exemption as plainest sort of language used. That interto courthouses and jails? There is not a pretation eliminates the word "contract” enword anywhere in the Constitution with ref- tirely from the amendment, and gives no erence to the construction either of court- force or meaning to it whatever. I see no houses or jails. However essential those escape from the conclusion that the lanbuildings are to government, the construc-guage of the amendment plainly means just tion and maintenance of them is treated, by what it says—that no contract nor any alsilence on the subject, merely the same as lowance nor any issuance of warrants shall other expenses.
be made during a fiscal year in excess of The case of Hilliard v. Bunker, 68 Ark. / the revenues for that year. It means that 340, 58 S. W. 362 (cited by the majority, and counties and municipalities that are to be which merely followed the decision in Dur- / lifted out of debt by the provisions of this rett v. Buxton, 63 Ark. 397, 39 S. W. 56), in- amendment must stay out of debt-must volved the construction of statutes to de- | not incur indebtedness for any purpose what
Detek ed and
ever in excess of the revenues for the fiscal, of a single year.” I scarcely think that any year. Now, a valid contract creates an ob one would put such a narrow construction as ligation, a debt, no matter when it is pay- that on the language so as to prohibit the able. The debt is not paid by postponement. spending of accumulated surplus. It reIt still remains an obligation.
quires no strained interpretation to say that Let us consider for a moment the illustra- the term "revenue from all sources for the tion made by the majority in the conclusion fiscal year" is broad enough to include accumof the opinion. When Lonoke county turns ulated surplus. By such accumulations, pubinto the second fiscal year after making lic buildings may be constructed and paid for the contract for the construction of the court- without making a contract in excess of revehouse, the contractor immediately presents nues for the fiscal year, and this method to the county court his claim for the second would, in the language of the amendment, payment of $10,000. He has a legal right to keep the counties on a "sound financial bado that under the opinion of the majority, sis”—that is to say, out of debt. and the county court is bound to issue him a Reflection upon the events of the past, the warrant, regardless of other anticipated ex- financial history of the counties and municipenses. If the contract thus made is valid, palities of the state, makes plain what was the county court can be compelled to allow in the minds of the framers of Amendment the claim and issue a warrant therefor. The No. 11 and the people who voted upon it. result will be that the restriction is placed, When the Constitution of 1874 was framed, not upon the allowance for the cost of the most of the counties of the state and many of courthouse, but it restricts the amount of the municipalities were heavily in debt, and general expenses of the county, regardless scrip was at a discount. This prompted the of the necessities which may subsequently framers of the Constitution to put in a pro arise. In other words, under the restriction vision permitting counties and municipalities made by the majority in the opinion, the to issue interest-bearing bonds, and to levy county cannot expend more than $50,000, an additional rate of taxation to cover inregardless of necessities. It is thus seen that debtedness which existed at the time of the this contract for future payment supplants adoption of the Constitution. But it was the payment of ordinary expenses, and, after thought necessary, in order to keep the counall, leaves the county in debt. But the il- ties out of debt, to put in a provision ablustration made by the majority is not apt solutely prohibiting counties and municipalifor the reason that if there is no constitu- ties from issuing interest-bearing evidences tional restriction upon the making of a con- of debt in the future. It was doubtless in tract for future payments, then it is within the minds of the framers of the Constitution the power of the county court to make any that the counties and cities would keep out contract for future payment regardless of of debt. This proved to be a vain hope. amount, and the only restriction upon the They did not keep out of debt, and it was allowance of the claim in future years is found that there was no provision in the the total amount of revenues for that fiscal Constitution to prevent them from going in year. It is therefore within the power of debt. Notwithstanding the inhibition against the county court to burden the county for issuing interest-bearing evidences of debt, debts payable in the future which would counties and municipalities found a way to exclude all other necessary expenses of the float future evidences of indebtedness withcounty. It cannot be determined or even out there appearing upon the face of the estimated until the assessments are made obligations a provision for the payment of and taxes levied what the revenues for a interest. Many of the counties again got fiscal year will be; that is only determined heavily in debt, as well as the larger cities by an ascertainment of the total amount of the state, and there has been an urgent of the assessments when the quorum court demand for the enactment of a constitutional meets, and there is a levy of taxes to meet amendment permitting counties and cities to the appropriation. How can it be known in issue bonds. The people in subsequent elecfuture years what the amount of the reve- tions demonstrated their unwillingness to nues is going to be? It is thus seen that confer upon counties and municipalities a this interpretation of the language of the continuing power to issue bonds, but at last, Constitution involves us in a mass of un- by Amendment No. 11, they conferred aucertainty, which clearly demonstrates to my thority to issue bonds and levy additional mind that the framers of the amendment taxes for the purpose of paying indebtedness never intended any such result, but, on the existing at the time of the adoption of the contrary, thy used plain language which amendment. It was intended to carefully means just what it says.
guard the situation by not only prohibiting The majority seek justification for a de- counties and cities and towns from issuing parture from a literal application of the lan- more scrip than could be absorbed by the guage of the amendment by saying that "it revenues for a given fiscal year, but they would prevent the expenditure of surplus rev- put in this provision prohibiting contracts enue by a county, city or town to construct which would incur indebtedness in the fua building which would exceed the revenue ture.