Texarkana-Forest Park Dist. No. 1 v. State

On motion for rehearing it has been most earnestly insisted that the original opinion is in conflict with and by implication overrules the opinion of this, court in White River Lumber Company v. Drainage Districts, 141 Ark. 196,216 S.W. 1043. The original opinion does not effect this result. The question under consideration in the White River Lumber Company case arose under the following circumstances: act 279 of 1909 was of general application throughout the State in reference to the formation and creation of drainage districts. Act 279 of 1909 was amended by act 221 of 1911 and by act 177 of 1913. Section 7 of act 221 of 1911 expressly exempted Phillips and Crittenden counties from the provisions of act 279 of 1909 as follows:

"Provided, that this act does not apply to Phillips and Crittenden counties, and this act being necessary for the immediate preservation of public peace, health and safety shall take effect and be in force from and after its passage."

Act No. 177 of 1913 amended the Acts of 1909 and 1911, and 20 of act 177 of 1913 expressly repeals 7 of act 221 of 1911. In the White River Lumber Company case we said: "The act of 1911 expressly exempted Phillips and Crittenden counties from its operation, and, this exemption being found in a separate section, it left the original act of 1909 in full and unamended force as to those counties. Rennau v. State, 72 Ark. 445, 81 S.W. 605.

"The extension of the act of 1911, so as to operate in Phillips and Crittenden counties, resulted under the act of 1913, not from extension by mere reference to the title of the act of 1911, but from the express repeal of the exemption, which had the effect of making the statute altogether general in its application."

Thus it definitely appears from the opinion that we were dealing with a question very different from the one here under consideration. The gist of the opinion in the White River Lumber Company case was that since the Drainage Act of 1909 was general in its application and applied to Phillips and Crittenden counties; and since Phillips and Crittenden counties were expressly exempted from the provisions by a separate and severable section of the subsequent Drainage Act of 1911, this separate and severable exempting section might be repealed by a subsequent act of the Legislature and thereby leave the law as it stood under the Drainage Act of 1909. Here act 126 of 1923 as amended by act 645 of 1923 were never general in their application, but on the contrary only applicable to Pulaski County, and act 183 of 1927 by repealing 24 of act 126 of 1923 undertook to and did extend the provisions of act 126 of 1923 to the other 74 counties of the State and thereby fell within the prohibition of the rule as announced in Rider v. State, 132 Ark. 27,200 S.W. 1002.

Act 183 of 1927 not only had the effect of repealing 24 of act 126 of 1923 and extending the provisions thereof to the other 74 counties of the State, but it had the direct effect of amending act 126 of 1923 by bringing 74 counties of the State under its mandate. It is a rule of universal application that the Legislature cannot do indirectly that which it is prohibited from doing directly. Therefore, when it undertook to extend the provisions of act 126 of 1923 to the other 74 counties of the State by repealing 24 of said act, it undertook to do indirectly that which it is prohibited doing directly by constitutional mandate — that is to say, amending act 126 of 1923 — and its endeavors in this behalf cannot and should not be sanctioned by the courts.

Had the Legislature of 1927 sought to amend the act of 1923 by adding the name of one or more counties, thereby making the act of 1923 applicable thereto, all would readily agree that such amendment would fall within the doctrine of the Rider case, supra, and would be violative of constitutional mandate. The effectuation of this identical result was accomplished by indirection and because thereof is equally obnoxious to constitutional direction.

Moreover if the White River Lumber Company case can be given the construction now asserted by appellants, it is unsound in principle and should be overruled.

The mandate of 23 of article 5 of the Constitution of 1874 is:

"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."

Four things are expressly prohibited by this constitutional mandate, unless the law is reenacted and published at length, namely: (1) no law shall be revived — (2) no law shall be amended — (3) no law shall be extended — and (4) no law shall be conferred. The second and third prohibitions that no provisions of law shall be amended or extended unless same is reenacted and published at length is clearly violated by the method pursued in the act of 1927. Act 126 of 1923 which was local and special in its application and effect to Pulaski County was amended and extended by act 183 of 1927 to the other 74 counties of the State without re-enacting and publishing the former at length. Any other interpretation of the Constitution would nullify its plain language and mandate, and we are unwilling to prostitute its wholesome protection by judicial interpretation.

In addition to what we have just said, in the White River Lumber Company case, we were dealing with the general act of 1909 which was subsequently amended in 1911 to exempt two counties from its provision which exemption was repealed by the Legislature in 1913. There we had a statute of general application in the first instance — here we have a statute local and special in its application in the first instance — there we had an exemption created by a subsequent, separate and severable enactment — here we have an exemption created at the birth of the act (and we must presume that this act would not have become a law without such exemption) — there we had a law (the act of 1909) of general application which was not extended in effect or in its application by any subsequent act — here we have a law that is amended and its provisions definitely extended by mere legislative manipulation and without reenacting and publishing at length.

Not only is act 183 of 1927 unconstitutional and void for the reasons heretofore stated, but it is likewise in valid because inhibited by amendment No. 14 to our Constitution. Amendment 14 was adopted by the people in 1926 and provides: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts." In Johnson v. Simpson, 185 Ark. 1074, 51 S.W.2d 233, we said:

"After the adoption of this amendment, the Legislature could not pass a valid local act. They could not amend a local act, but they were given authority in the amendment to repeal local acts.

"Act 205 of the Acts of 1927 amended 321 of Crawford Moses' Digest. This section of the Digest is 1 of the local act of 1915, above mentioned. It provides for the per cent. of qualified electors necessary for the county court to order an election and a vote by the people."

Again, in Benton v. Thompson, 187 Ark. 208,58 S.W. 924, we said: "This court has held, while the Legislature may repeal a local act, or may repeal a portion of it, it can not amend a local act." The situation is simply this: Every one must admit that act 126 of 1923 was local and special in its effect; every one must admit that act 183 of 1927 amended the act of 1923 so as to make it general in its application. The act of 1927 was an abortive attempt to amend a local law; the act sought to be amended remained a local act at all times unless it was converted into a general act by the passage and approval of act 183 of 1927. This act of 1927 shows upon its face that it was "an act to amend act 126 of the Acts of the General Assembly of the year 1923." After the adoption of amendment No. 14 in 1926, no local or special act could be amended. Therefore the attempt of the Legislature to do so by the act of 1927 is expressly prohibited by the 14th amendment.

For the reasons stated we adhere to the original opinion.

SMITH, McHANEY and BUTLER, JJ., dissent.