Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 v. State Use Miller County. , 189 Ark. 617 ( 1934 )

Appellant, Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 was organized under and by authority of act 183 of 1927, which act was amendatory of act 126 of 1923 as amended by act 645 of 1923. Subsequent to the organization of appellant district, the General Assembly passed act 63 of 1931, the effect of which was to levy a one-cent tax upon all gasoline sold in this State for the benefit of county public roads as distinguished from State roads: the act of 1931 further provided, in effect, that the State Treasurer, prior to disbursing the funds to the respective counties, as provided therein, shall deduct the amount required to pay 75 per cent. of the maturing bonds and interest of all bonds issued by road improvement districts issued since February 4, 1927. The act of 1931 expressly provides in 6 thereof that all districts organized under act 126 of 1923 and amendments thereto shall come within its preview and application.

On October 1, 1931, pursuant to the provisions of act 63 of 1931, the State Treasurer deducted from Miller County's allotment under said act a sum sufficient to pay 75 per cent. of the maturing bonds and interest of appellant district, and subsequent thereto made similar deductions and allotments in favor of appellant district and asserted his intention of continuing said deductions and allotments. Thereupon the State, for the use and benefit of Miller County and J. J. Sewell, as county judge of Miller County and in his own right as a citizen and taxpayer thereof, instituted this suit in the Pulaski Chancery Court against Roy V. Leonard, State Treasurer, and appellant district praying a permanent injunction against the State Treasurer restraining and enjoining him from making any deductions from Miller County's allotment under act 63 of 1931 in aid or for the benefit of appellant district. This suit progressed to trial and decree on March 23, 1934, and the court determined therein that the prayer of appellee's complaint should be granted, and this appeal is therefrom.

Act 183 of 1927, under authority of which appellant district was organized, is unconstitutional and void for the following reasons: Act 126 of 1923 as amended by act 645 of 1923 by its mandatory provisions applied to and had effect only in and to Pulaski County. Section 24 provides: "This act shall be operative only in counties with a population exceeding seventy-five thousand inhabitants, as shown by the last Federal census."

In virtue of the section of the act just quoted, it and the amendment thereto of 1923 applied only to Pulaski County because Pulaski County was the only county in Arkansas in 1923 which contained the requisite seventy five thousand population. So it was from the date of the passage of act 126 of 1923 until the passage of act 183 of 1927. Section 1 of act 183 of 1927 provides:

"Section 24 of act No. 126 of the Acts of the General Assembly of the State of Arkansas of the year 1923 is hereby repealed."

The effect of 1 of the act 183 of 1927 was to repeal 24, act 126 of 1923, thereby making act 126 of 1923 and the amendments thereto apply to all counties of the State.

Act 183 of 1927 contains eight sections only. Section 1 is heretofore quoted. Section 2 amends 25 of act 126 of 1923. which has to do only with the application of the act to districts created adjacent to certain cities and towns. Section 3 amends 4 of act 126 of 1923, which has reference to the purpose only for which the district may be organized. Section 4 provides for the formation of districts authorized under act 126 of 1923 embracing lands in two or more counties. Section 5 provides for the annexation of territory to districts theretofore organized by authority of act 126 of 1923. Section 6 authorizes the commissioners of districts, organized under authority of act 126 of 1923, to sell and convey the improvements effected by the district under certain restrictions. Section 7 expedites litigation affecting districts organized under said acts. Section 8 is the emergency clause.

It definitely and certainly appears from a mere reading of act 183 of 1927 that no valid improvement district could be organized under its authority and mandate. Without the aid of acts 126 and 645 of 1923 the provisions of act 183 of 1927 are absolutely meaningless and void of purpose. Section 23 of article 5 of the Constitution of 1874 provides

"No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

In Watkins v. Eureka Springs, 49 Ark. 131,4 S.W. 384, this court decided that an act of the General Assembly which had the purpose and effect of extending to cities and towns rights and remedies which existed by law in favor of counties could not be so extended by reference to title only. We have uniformly held, following the case just cited, that when a new right is conferred or cause of action given 23 of article 5 of the Constitution of 1874 requires the whole law governing the right and remedy to be re-enacted in order to enable the court to effect its enforcement. Farris v. Wright, 158 Ark. 519,250 S.W. 889; Beard v. Wilson, 52 Ark. 290,12 S.W. 567; Common School Dist. v. Oak Grove Special School Dist., 102 Ark. 411, 144 S.W. 224; State v. McKinley, 120 Ark. 165, 179 S.W. 181; Harrington v. White, 131 Ark. 291, 199 S.W. 92; Palmer v. Palmer,132 Ark. 609, 202 S.W. 19; Hermitage Special School Dist. v. Ingalls Special School Dist., 133 Ark. 157, 202 S.W. 26; Fenolio v. Sebastian Bridge Dist., 133 Ark. 380,200 S.W. 501; St. L. S. F. Ry. Co. v. Southwestern Telegraph Telephone Co., 121 F. 276.

In Rider v. State, 132 Ark. 27, 200 S.W. 275, we had before us, in effect, the exact question here presented. There the Legislature of 1909 passed act 310 creating a stock district in the Charleston District of Franklin County. The General Assembly of 1915; by act 145, amended the former statute by adding two other townships in Franklin County to the stock district as formed by the act of 1909. This addition was effected by amending the act of 1909 as follows: "That wherever act No. 310 of the General Assembly of 1909 now reads ``Charleston District of Franklin County,' the same shall be amended and the same is hereby amended to read: ``Charleston District of Franklin County and Barham and Wittich townships of Franklin County'." We there said: "The act of 1915, under which appellant was convicted, was clearly an attempt on the part of the lawmakers to extend the provisions of another statute merely by reference to title without re-enacting and publishing the new statute at length. * * * The statute now under consideration falls clearly within the first rule stated above, for the power granted under the new statute is not declared on its face, but is given merely by reference to the title of another statute."

The similarity of the case just cited to the one under consideration is: In the Rider case the stock district, which applied to the Charleston district only, was extended to cover two other townships in the county by amendment; in the instant case the authority to organize suburban road improvement districts, which existed only in favor of Pulaski County, was extended to the other 74 counties of the State by the simple repeal of 24 of act 126 of 1923. There is and can be no distinguishable difference.

Act 183 of 1927 falls squarely within the condemnation and inhibition of 23, article 5, of the Constitution of 1874 and likewise within the doctrine of the cases cited supra, therefore is unconstitutional and void.

It is insisted, however, that the allotments to appellant district from Miller County's allotment of the funds under act 63 of 1931 is lawful and valid and should be continued because the donation by the State is a gratuity and may be bestowed regardless of the constitutionality of the act under which it was created. This is probably true if the General Assembly has manifested such intention, but such is not the case. The primary purpose of act 63 of 1931 is to make donations to counties and aid them in their efforts to improve county roads which he without the State highway system. This is made evident by the fact that the 75 counties of the State were made the units to which the donation was granted. Subdivision F of 1 of said act provides, in effect, that this created fund shall be divided among the several counties of the State upon the following basis: 1. One-third on population of county. 2. One-third on car license revenue received from the county. 3. One-third on area of county.

Subdivision G of 1 provides: "From the allotments made to each county as provided in paragraph F the State Treasurer shall deduct the amount required to pay * * * maturing bonds and interest, etc." Thus it appears from the plain language of the act that its primary purpose is to aid counties and not road improvement districts. Since it was and is the primary purpose of this act to aid counties, we are unwilling to hold that the General Assembly had the purpose and intent to take funds primarily allotted to a county and donate them to road districts which were organized under an unconstitutional act.

Moreover, the General Assembly evidently had in mind, upon the passage of act 63 of 1931, that the road improvement districts therein sought to be aided were organized and existing under valid acts and not those organized and existing under invalid laws. We are unwilling to hold that the act of 1931 would have been passed by the General Assembly regardless of the constitutionality of the act under which it was organized. In addition to what has just been said, the evidence presented upon trial of this cause warranted the chancellor in finding that appellant district was not, when organized, a public enterprise but, on the contrary, a private and personal venture of those effecting the organization thereof. The power to pay gratuities to individuals is denied to the Legislature generally by constitutional mandate, and usually a gift of money to an individual would be an appropriation of public funds to private uses, which cannot be justified in law. Mead v. Action,139 Mass. 341; Citizen Sav. Loan Ass'n v. Topeka, 20 Wall. (U.S.) 655; Parkersburg v. Brown, 106 U.S. 487, 1 S.C. 442; Cole v. La Grange, 113 U.S. 1, 5 S. Ct. 416; Cooley, Constitutional Limitations (6th ed.) 601, 602.

For the reason last stated, we cannot and should not presume that the Legislature would have passed act 63 of 1931 donating public funds to private uses, or to road districts organized under unconstitutional law.

Neither can we agree that the citizens of Miller County are estopped to assert their claim to the funds here in controversy. The first answer to this contention is that these funds were not created until 1929 and 1931, long after the creation of appellant district. Secondly, the citizens of Miller County had no interest in the organization of the district and could assert no objections thereto until funds belonging to Miller County were diverted to the purpose of extinguishing a debt owed primarily by appellant district. It was then and only then that the citizens of Miller County had the right to bring in question the constitutionality of the act under which appellant district was organized.

It follows from what we have said that the chancellor did not err in granting the permanent injunction against the State Treasurer, and the decree is therefore affirmed.

SMITH, McHANEY and BUTLER, JJ., dissent.