Cannon v. May , 183 Ark. 107 ( 1931 )

It is conceded by counsel for the parties that the single question raised by this appeal is the validity of act 150 of the Acts of 1929, placing the county treasurer and county and probate clerk of Hempstead County, Arkansas, on a salary basis. Acts of 1929, vol. 1, p. 764.

That part of 1 relating to the issue raised by the appeal provides that the county and probate clerk of Hempstead County, Arkansas, shall receive as full compensation for his services as county and probate clerk the sum of $3,600, and the sum of $1,500 for a deputy, said sums to be paid in equal monthly installments. The county court upheld the act, and allowed Frank May and his deputy the salaries provided in the act. Curtis Cannon, a taxpayer, was allowed to intervene and appeal to the circuit court. There again the validity of the act was upheld, and the claims of the county and probate clerk and his deputy were allowed as provided by statute. The case is here on appeal.

Amendment No. 12 to our Constitution reads as follows: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts."

In the construction of this amendment, this court has held that act No. 367 of the Acts of 1929, fixing the compensation of the sheriff of Crawford County and the duty of the county clerk of such county on a basis entirely different from that of other sheriffs and county clerks in the State is within the constitutional provision against special legislation. Smalley v. Bushmaier,181 Ark. 874, 31 S.W.2d 292. This holding was reaffirmed in the later unreported case of Smalley v. Bushmaier, 181 Ark. 1147, 31 S.W.2d 293.

It is conceded that, if the ruling in these cases is adhered to, the act is unconstitutional, and the judgment must be reversed; but it is insisted that the holding in these cases is wrong and should be overruled. We cannot agree with counsel in this contention. The act in question is purely local, and its application is confined to Hempstead County. It fixes the salary of the county and probate clerk of that county and has no reference to the salary of the county and probate clerk of any other county.

Prior to the adoption of the amendment in question, this court held that the act of February 20, 1893, fixing the salaries of the officers of Sebastian County was not in violation of the Constitution of 1874, article 5, 25, providing that in all cases where a general law can be made applicable, no special law shall be enacted, since the Legislature is the judge of the necessity and propriety of the special law as applicable to any particular subject. Powell v. Durden, 61 Ark. 21, 31 S.W. 740. The court expressly stated that the act was a special one, and based its opinion on the doctrine that the Legislature was the judge of the necessity and propriety of a special law, as applicable to any subject, rather than a general law. Although there was no extended argument of the question, the court in that case recognized that a salary act for the officers of a single county was a special act. If it had deemed that a salary act was a general one, the court would doubtless have said so, as it did in the later case of Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844, where it was said that statutes establishing or abolishing separate courts relate to the administration of justice and are not local or special in their operation. A Missouri case was cited in support of the ruling. The Supreme Court of Missouri based its holding on the principle that the judicial system of the State was a whole, and that acts dealing with the courts have been usually held general, although not applicable to every court of like nature in the State. The ruling proceeds up on the doctrine that the judicial department of the State is a "composite unit." Greene County v. Lydy, 263 Mo. 77, 172 S.W. 376, Ann Cas. 1917C, p. 274. In this connection, it may be stated that the Supreme Court of the State of Missouri in a well-considered case has held that a statute fixing the fees or compensation of officers of a single county is a question in its nature local and a law regulating such compensation cannot be properly regarded as a law of a general nature but is a local or special act. Henderson v. Koenig,168 Mo. 356, 68 S.W. 72, 57 L.R.A. 659.

The Supreme Court of New York has held that an act relating to the fees of the sheriff of a single county is a local act. Gasken v. Meeks, 42 N.Y. 186. To the same effect see Cricket v. State, 18 Ohio St. 9; Gibbs v. Morgan, 39 N.J. Eq. 126; and Commonwealth v. McMichael, 8 Pa. Dist. 157.

The reason for the rule and the rule itself is clearly stated in Ferguson v. Ross, 126 N.Y. 459, 27 N.E. 954. Judge Andrews said:

"It seems impossible to fix any definite rule by which to solve the question whether a law is local or general, and it has been found expedient to leave the matter, to a considerable extent, open, to be determined upon the special circumstances of each case. There are, however, certain general principles to be deduced from the decisions. One of these is that a statute may be public and still local, and therefore within the purview of this provision of the constitution. In accordance with this view, it has been held that acts constituting or defining the jurisdiction of local courts, amending charters of municipal corporations, regulating the appointment and election of local officers in a particular city, providing for the laying out of streets or highways or the construction of bridges in a specified locality, and for local taxation to pay the expense of the work, regulating the fees of officers in a particular county or the expenses of judicial sales therein, although public acts, are nevertheless local and to be valid the subject of the enactment must be expressed in the title. [Citing authorities.]"

"Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the State, or all things of a certain class, is a general and not a local act, although by reason of some limitation, based on population or other condition, only a particular city or the inhabitants of a single locality can in the actual situation receive its benefits. In re N.Y. Elevated R.R., 70 N.Y. 328; In re Church, 95 N.Y. 2."

The act under consideration applies to only one county in the State, excluding all other counties from its consideration, and is clearly a local or special act, under the principles of law above announced.

It is claimed that this holding will render invalid a number of salary acts of a similar character passed by the Legislature of 1929. Considerations of that sort cannot affect a judicial determination of a question of law. Our duty is to construe the Constitution as it is written. As we have already seen, the Supreme Court of this State has defined a salary act for the officers of a single county to be a local or special act before the adoption of the amendment under consideration. The legal presumption is that the framers of the amendment had in mind that the court had already held that a salary act for the officers of a single county was a local or special act. A prior construction of a State Constitution will be regarded, in the absence of any evidence of different intent, as adopted by re-enactment of the same language in a revision of the Constitution. Sliders v. St. Louis New Orleans Anchor Line, 97 Mo. 26, 10 S.W. 595, 3 L.R.A. 390. This is in application of that established doctrine of constitutional construction that when a later Constitution or an amendment adopts a provision of an earlier one that has received judicial construction, it is deemed to be adopted as thus construed. State v. DeLorenzo,81 N.J.L. 613, 79 A. 539, Ann. Cas. 1912d 329; Morgan v. Dudley, 18 B. Mon. (Ky.) 693, 68 Am. Dec. 735; Cooley, Const. Lim. 8 Ed., vol. 1, p. 136, 12 C.J., p. 717; and 6 R.C.L., p. 54.

We again call attention to the fact that this decision does not impair the decision in State v. Crawford,35 Ark. 236, where it was held that a statute settling the accounts between the State and certain parties is a general and not a special act, but the reason was that the State is sovereign and in the settlement of the account acted for all the people in the State.

Again, we do not wish to be understood as impairing the force of cases like Ark-Ash Lumber Co. v. Pride Fairley, 162 Ark. 235, 258 S.W. 335; McLaughlin v. Ford,168 Ark. 1108, 273 S.W. 707; and Farelly Lake Levee District v. Hudson, 169 Ark. 33, 273 S.W. 711. On the other hand, we think the rule there announced fully sustains the view herein expressed that the act under consideration is a local or special one because, according to its terms, it only applies to a single county in the State and could not apply to any other county or counties.

We again call attention to the case of Harwood v. Wentworth, 162 U.S. 547, 16 S. Ct. 890, cited in Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617, where it was held that counties may be properly classified for the purpose of fixing the salaries of county officers according to population, wealth and other things, which are calculated to furnish a reasonable basis for the classification, so that as nearly as possible, the officers would be compensated according to the amount of work done.

The result of our views is that the act under consideration is unconstitutional; and it follows that the judgment of the circuit court must be reversed, and the cause will be remanded with directions to the circuit court to certify its judgment in accordance with the opinion herein expressed down to the county court for its guidance in the premises.