Page, Treasurer v. Alexander, Treasurer

The Arkansas Gross Receipts Act of 1941 was approved March 26 of the year enacted. The object, as expressed by 17, was to raise money for the purposes mentioned.¹ All funds are payable to the Commissioner of Revenues. Section 18 directs distribution.

Act 187, approved March 10, 1943, was passed without the emergency clause. Its title is shown in the margin.² Effect is to redistribute sales tax funds. The Treasurer is directed to open on his books the "Cities and Counties Fund."³ Section 21 of the 1941 enactment provided that it should become effective July 1, following approval. Changes in 18 of Act 386 made by Act 187 are shown in the footnote.⁴

The questions are, (a) When did Act 187 become effective? and (b) What amount of money should the Treasurer of State credit to Cities and Counties Fund? In consequence of a suit brought by G. L. Alexander, Treasurer of the City of Little Rock, and by the City of Little Rock, against Earl Page, Treasurer, and Oscar Humphrey, Auditor. A third question is, should the fund be distributed by State authorities, or by the Clerk of the Pulaski chancery court?

Essential parts of a stipulation are that on June 10, 1943, an amount in excess of eight million dollars had been collected and accounted for by the Commissioner under Act 386, and ". . . the sum of $700,600 was collected under said Act and turned over to the State Treasurer during the last twenty-one days of June, 1943."

It was then agreed that the Treasurer had refused to credit to Cities and Counties Fund any moneys collected from June 10 to July 1, although total sales tax collections available for distribution during the 1942-1943 fiscal year were $8,937,150.44.⁵

The decree was that all revenues collected from June 10 to July 1 be distributed as Act 187 directs. Because aggregate receipts as of June 10th amounted to eight million dollars or more, Cities and Counties Fund should not be credited with five percent of revenues collected prior to June 10, but ". . . inasmuch as on the effective date of Act 187 there had been collected under Act 386 an amount equal to or in excess of eight million dollars from July 1, 1942, . . . then under the terms of Act 187 the Cities and Counties Fund was entitled to be credited with thirty-six percent of the next $1,200,000, or as much thereof as was collected from June 10 until July 1."

Collections during the last twenty-one days of June were found to have been $700,600, thirty-six percent being $252,216.

There was a finding that the complaint was filed on behalf of cities and counties as a class; that Cooper Jacoway and Leffel Gentry were entitled to attorneys' fees "for representing all of said cities and counties," and that fees should be paid by such cities and counties from the recovery. Finally, it was directed that the Auditor, on voucher issued by the Treasurer, should send to the Clerk of the Pulaski Chancery Court a warrant for $252,216, proceeds to be disposed of in the manner set out in the margin.⁶

The Attorney General's insistence is that because, throughout Act 386 there is reference to "each fiscal year," and because, by express terms it became effective July 1, 1941, Act 187 must necessarily be construed as an integral fitted into the principle Act. Therefore, it is argued, the Act's mandate that Cities and Counties be credited with "the remaining five percent thereof"⁷ until $400,000 has been paid into such fund "for each fiscal year or part thereof" has reference to any part of an entire fiscal year during which five percent of eight million dollars amounts to $400,000.

While there is some logic in this contention additional support for which is found in language allotting to the fund twenty-three and a half percent of "all moneys in excess of the first $9,200,000 annually collected under this Act" — the fact remains that the Legislature, in providing that cities and counties should receive thirty-six percent of twelve hundred thousand dollars collected in excess of eight million, inserted this directive in a sentence following the term "for each fiscal year or part thereof."

It is our view, therefore, that the Act went into effect June 10th,⁸ and that cities and counties are entitled to share in distribution to the extent of thirty-six percent of all revenues in excess of eight million and not above nine million two hundred thousand dollars, provided "moneys arising from a tax levied for one purpose" are not "used for any other purpose." Art. 16, 11, Constitution.⁹ Under Act 386 cities and counties were not beneficiaries of funds arising from the sales tax. As amended in 1943 the new fund was made to share; but, since the apportionments (whether five percent if collections were less than eight million, or thirty-six percent of $1,200,000) could only be from moneys arising from a tax levied for the benefit of cities and counties, and since Act 187 was not in effect until June 10, it follows that the money must have been paid by the taxpayer during the last twenty-one days of June in order that cities and counties might participate prior to the beginning of a new fiscal year July 1, 1943.

The Law is, of course, that a levy made for the purpose of raising funds for an expressed purpose may not be used in raising money for a different purpose. Collins v. Humphrey, 181 Ark. 609, 27 S.W.2d 102. In that case Chief Justice HART said: "By the use of the phrase ``arising from a tax levied for one purpose' it was evidently intended that, when the tax was collected, it automatically belonged to the purpose for which it was levied, and could not thereafter be diverted by the Legislature to another purpose."

The money arises, within Constitutional contemplation, when it is paid by the purchaser to the merchant or other seller. Section 5 of Act 386 makes the tax "due and payable" on the first day of each month; but, after August 15, 1941, reports as to the seller must be made to the Commissioner "on or before the fifteenth day of each month for the preceding calendar month."

It will be seen that, for all practical purposes, taxes paid to a merchant or other seller from day to day during a particular month are moneys payable on the first day of the succeeding month, although a report is not required until the 15th. The stipulation is that $700,600 was "collected under said Act 386 and turned over to the State Treasurer during the last twenty-one days of June, 1943." There is no agreement that the collections represented moneys arising from the sales during the specific period of twenty-one days, but only that the excess was collected under the Act and turned over to the Treasurer. Obviously the collections referred to are those made by, the Commissioner instead of the seller. Reports to the Commissioner made June 15th would cover seller collections for May, while July 15th reports would include all of June.

We apprehend that in remanding the cause for determination of the facts mentioned, difficulties of accountancy will be encountered. Still, records maintained by the Commissioner are such that from them relatively accurate information may be had, and it is essential to the law's certainty that this be done.

This is not a class suit in the sense that a city or county not participating in a duly authorized manner may be charged with costs and fees. It is primarily an action by the City of Little Rock, brought by its elected City Attorney, to procure for the municipality the funds alleged to be due. Refusal of the Treasurer to set up the fund as directed by the Legislature, and declination of the Auditor to issue a warrant, justified Little Rock in proceeding, although the two State officials acted with proper circumspection in requiring judicial construction of the Act before disbursing money. But other than a general allegation in the complaint that all cities and counties are entitled to share in the recovery, there is nothing to show that a particular city or county has become committed to such an extent that it would be liable for costs, etc., for the benefits it would have received if a single unit — that is, either a city or county — had brought the suit. Nor is there authority for transferring to the Clerk of the Pulaski Chancery Court the amount ultimately found to be due. Specifically, 3 of Act 187 requires the Treasurer ". . . to apportion among the treasurers of counties and municipalities . . . all the moneys credited to the Cities and Counties Fund . . . immediately, after July 1, October 1, January 1, and April 1 of each year."

The decree is reversed and the cause is remanded with directions to the lower court to proceed in a manner not inconsistent with this opinion.

FRANK G. SMITH, ROBINS and McFADDIN, JJ., dissent in part.

¹ These purposes were relief for the common schools, free textbooks, to finance state charitable institutions, to provide funds for circulating library service, and to provide for wards of the state "who will receive support through the State Welfare Commission, and for worthy causes."

² An Act to amend 18 of Act 386 of the Acts of 1941 General Assembly of the State of Arkansas; to provide revenues for cities and counties creating the cities and counties fund in the office of the State Treasurer; making provisions for the distribution of money credited to the funds mentioned in said Act, declaring an emergency and for other purposes.

³ Act 386 made distribution of sales tax funds without limitation as to the gross or net amount that might be realized from the levy. [Where the term "Treasurer" is used in this opinion, it has reference to the Treasurer of State, and "Auditor" means Auditor of State.]

⁴ Act 386 dealt with "the moneys received by the Commissioner." Act 187 reads, "Of the first $8,000,000 received by the Commissioner." Act 187 substitutes the words "during each fiscal year" for "the fiscal year 1941-42," appearing in the fifth line of the older statute. Beginning on the tenth and continuing into the eleventh line of Act 386, the Commissioner is directed, "beginning with the fiscal year beginning July 1, 1941," to pay certain sums into the Homestead Tax Exemption Fund. Act 187 directs the Commissioner to make payment to the Fund, but omits the words "beginning with the fiscal year beginning July 1, 1941." Lines 20 and 21 of Act 386 direct the Commissioner to pay the Treasurer of State for credit to the Welfare Fund "twenty-five percent of the taxes collected under this Act." The 1943 amendment substitutes twenty percent. Where (line 23 of Act 386) the Commissioner is directed to pay to the Teachers' Salary Fund "one and a half percent of the taxes collected under this Act," the amendment uses the words "one and a half percent thereof." Following directions in each Act that the Commissioner distribute one percent to the Confederate Pension Fund, (effect of Act 386 being that one percent of all net collections go to this fund, while under Act 187 one percent of the first eight million would be so applied) the Treasurer, by Act 187, is directed to create the Cities and Counties Fund. [A directive in Act 386 following reference to the Confederate Pension Fund just mentioned, beginning with "Any excess from the percentage allocated the Textbook Fund and Homestead Exemption Fund," and ending with "This section shall not be construed as repealing 15 of Act 162 of the Acts of 1937" is repeated in Act 187, but is transferred to the end of 1. Other changes are made.]

⁵ The sales tax collected by the Revenue Department and deposited in the State Treasury, under Act 386 of 1941, for the fiscal year ended June 30, 1943, was distributed to the following funds: Textbook, $360,000; Confederate Pension, $189,418.51; State Sinking, $9,977.99; Charities, $953,856.03; Vocational Education, $9,978; School Supervision, $9,120.02; Arkansas Medical School, $4,989; Welfare, $2,234,287.62; Common School, $4,468,575.24; Teachers' Salary, $134,057.26; University of Arkansas, $117,194.66; Teachers College, $23,383.69; State College — Jonesboro, $17,464.30; Polytechnic College — Russellville, $17,464.28; A. M. College, Third District — Magnolia, $17,464.29; A. M. College, Fourth District — Monticello, $17,464.30; Henderson Teachers College — Arkadelphia, $23,383.73; A. M. N. College, Pine Bluff, $5,985; School Equalizing, $323,086.52; total, $8,937,150.44.

⁶ The direction was: "Said amount [shall] be hereafter distributed under further order of this court to the cities and counties entitled to share in said fund, in the proportion provided in 2 of Act 187 of the Acts of the General Assembly of Arkansas for the year 1943, after the allowance of a reasonable attorneys' fee as may be hereafter allowed by the court."

⁷ "The remaining five percent thereof" has reference to the difference between ninety-five percent apportioned to various agencies (or allotted for specific purposes) and one hundred percent of sales tax collections. It arose when by Act 187 allotment to the Welfare Fund was reduced from twenty-five to twenty percent.

⁸ Cone v. Hope-Fulton-Emmett Road Improvement District,169 Ark. 1032, 277 S.W. 544.

⁹ The full section is: "No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, and no moneys arising from a tax levied for one purpose shall be used for any other purpose."