Kirk v. High

Case No. 9154 is the suit of a citizen and taxpayer of Lonoke County, who, for the benefit of himself and all other taxpayers of that county, filed a complaint, in which he alleged that the county judge and three other citizens of the county are the duly qualified commissioners for the construction of a courthouse for that county. It was alleged that at the regular term of the quorum court of Lonoke County it had been unanimously voted to erect a courthouse at a cost not to exceed $150,000, the same to be paid for in not to exceed twenty annual installments not exceeding $10,000 in any one year, and the sum of $10,000 was appropriated to be paid out of the revenues of 1924 as the first payment. It was alleged that the quorum court of the county had pledged the faith and credit of the county to set aside not to exceed one mill, or so much thereof as was necessary, of the annual five-mill tax for county purposes to meet the annual appropriation to be made under the terms of the resolution of the quorum court which directed the county judge, in conjunction with the commissioners, to execute a contract for the construction of the courthouse. It was further alleged that the total assessed value of the real and personal property is approximately ten million dollars, and that the five-mill tax for county general purposes would yield only about $50,000 per year, and the one-mill pledged to be used for the payment of the annual appropriation to build the court house will yield only about $10,000, and that the county's total revenues from all other additional sources is only $10,000 per annum. It was further alleged that, notwithstanding these facts, the commissioners proposed to let a contract for the construction of a building the cost of which may amount to $150,000, and that the contract will be let unless they are enjoined from so doing. There was a prayer that the commissioners be enjoined from entering into the proposed contract.

A demurrer to this complaint was filed and sustained, and the taxpayer has appealed.

In case No. 9152 a citizen of Nevada County sought to enjoin the construction of a jail in that county, and the complaint filed by him contains allegations raising the same question as is presented in the Lonoke County case. A demurrer to this complaint was filed and overruled, and the commissioners stood on their demurrer and have appealed.

The same question is therefore presented in both appeals, and a single opinion will suffice to dispose of both cases.

The controlling question in the case is the effect of the adoption of the eleventh Amendment to the Constitution of the State. This amendment was adopted by the people at the general election of 1924, as declared by the court in the case of Brickhouse v. Hill,167 Ark. 513.

This amendment was adopted as an amendment to section 4 of article 12 of the Constitution, and the portion thereof relevant to the facts involved in the pending appeals reads as follows: "The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners, of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrants, scrip or other evidence of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year."

Other portions of the amendment provide that the counties, cities and incorporated towns of the State may pay their outstanding indebtedness by issuing negotiable bonds and, after authorizing that action, it is further provided that "Where the annual report of any city or county in the State of Arkansas shows that scrip, warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year, the officer or officers of the county or city or incorporated town who authorized, signed or issued such scrip, warrants or other certificates of indebtedness shall be deemed guilty of a misdemeanor and, noon conviction thereof, shall be fined in any sum not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office."

Does this amendment operate to prohibit the counties of the State from building courthouses and jails where the cost of such buildings would exceed the sum that can be appropriated and paid in any one year out of county funds for such purposes?

We think the purposes of this amendment were, first, to enable the cities, counties and incorporated towns of the State to pay their outstanding indebtedness by an issue of bonds; in other words, to get on a cash basis; and the second purpose was to prevent the counties, cities and towns of the State from accumulating a floating debt which could not be paid out of the total revenues of the fiscal year, that is, the obligations payable in a given year must not exceed the revenues of that year.

But does this mean that courthouses or jails cannot be erected unless the total cost of the construction can be paid out of the revenues of a single year? We think not.

The rule by which amendments to the Constitution are to be construed was stated in the case of Hodges v. Dawdy, 104 Ark. 583, where it was said: "The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, if course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a ``fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it,' State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation."

In the application of this rule of construction the court refused to give a literal reading to certain phrases appearing in the amendment which was there construed, and assigned as the reason for so doing that "such a construction leads to an absurdity, and must be rejected for that reason. State v. Smith, 40 Ark. 431."

It is a matter of common knowledge, known to every citizen, that there is possibly no county in the State which could build a courthouse sufficient for use as such and pay for it out of the revenues of any single year. This could certainly not be done if the county paid the other ordinary and inevitable expenses of government. The same thing is no doubt true as to many counties in the matter of building jails.

These are unusual and extraordinary expenses, They are not incurred annually. Ordinarily, courthouses and jails answer the purposes for which they were constructed for many years. They are essential to the discharge of the functions for which counties are created. It is not likely that any county in the State has ever, or will ever, pay the total cost of a courthouse out of the revenues of the county for a single year.

As was said by CHIEF JUSTICE BUNN in the case of Hilliard v. Bunker, 68 Ark. 340. "In such an expensive matter as the building of a courthouse and jail, it is not of course expected, under ordinary circumstances, to cover the whole amount by the levy for one year, and in fact this cannot be done, since, together with the ordinary expenses of the county, the levy for erecting these buildings must not exceed in one year the rate of 5 mills. The amount and number of the annual installments necessary to cover the whole cost of the structure must be and is left to the discretion of the levying court, to be exercised so as to accomplish the result intended in a reasonable time."

This languages wag quoted and approved in the recent case of Shoffner v. Dowell, 168 Ark. 229, but, as that case originated before the adoption of amendment No. 11, all that was there said is not applicable here.

Any payment a county makes for any purpose during any year is a part of the expense of that year, and where the total revenues have been appropriated and disbursed, expenditures must cease. The fiscal officer of the county, city or town whose duty it is to draw a warrant upon which the revenues would be paid out must cease drawing warrants under penalty of a fine and forfeiture of his office when warrants have been drawn in a sum sufficient to exceed the revenues of a particular year. He overdraws at his peril.

But this inhibition is not to be read too literally. A literal reading would prevent the expenditure of surplus revenue which might be accumulated by a county, city or town, to construct a building the cost of which would exceed the revenue of a single year, for the penalty of the statute falls "where the annual report * * * shows that scrip warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year."

If the amendment is read literally, it would be fruitless for a county, city or town to accumulate a surplus to erect a building which would exceed, with other necessary expenditures, the revenues of a single year, for, if the annual report which the amendment requires shows that this has been done, the officer upon whose warrant the money was disbursed would forfeit his office and be subject to a fine.

We think the amendment means just this: that, if a county, city or town avails itself of the provision authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its annual revenues. It must stay out of debt. It means further that, if a city, county or town has any outstanding unpaid warrants which it does not take up by issuing bonds as authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year.

But it does not mean that the county without a courthouse or a jail must dispense with these essentials because they cannot be fully paid for in one year. Counties may contract for these buildings and may apportion the cost over a number of years, but in doing so the other necessary expenses of government must be taken into account, and no authority be conferred upon the officers charged with the duty of issuing vouchers or warrants to issue them for a sum which will exceed the total revenues for any single year.

For instance, if Lonoke County has revenues not exceeding $60,000, and proposes to expend $10,000 a year on a courthouse, then all other expenditures must not exceed $50,000 per year. The sum to be paid in a particular year is "the contract or allowance" for that year, and must be shown in the annual report which the amendment requires the counties, cities and towns to make, and this contract or allowance must not, with all other contracts or allowances payable that year, be "in excess of the revenues from all sources for the fiscal year in which said contract or allowance is made." But, subject to this limitation as to payment, we do not think the amendment requires counties having no courthouses or jails to attempt to function without them, and the counties may therefore contract for their construction, provided no obligation is incurred to pay a sum of money exceeding — in addition to other expenditures — the total revenues of the year in which a particular payment is to be made.

It follows, from what we have said, that the decree in the Lonoke County case will be affirmed, and the one in the Nevada County case will be reversed.

The CHIEF JUSTICE dissents, and MR. JUSTICE HART concurs.