*1 Judge. Baker, Hackler v. 2d 677 346 W. S.
2423 & 2461 1961. delivered Opinion May 23, 1961.] [Rehearing June denied appellant. B. Tinnon, Thomas ap- Mobley, for cross *2 Richard J. M. and Smallwood pellants. Williamson, Barron, for Meek, Rouse, Nash &
Rose, appellee. litigation This Justice. Associate Ward, Paul attempt by Marion Counties and an Baxter
stems from provi- compact, (adjoining) a under the into to enter Extraordinary Session sions of First Act No. purpose pro- Assembly, of the of the 1960 General for development moting those counties. The industrial in constitutionality primary issue concerns of said Act. the speaking, Generally Act No. Act. the Provisions of adjoining- whereby or more two provides a method compact engag- the a “for form counties can develop industry joint secure and ing- to in efforts by issuing the same to finance and benefit,” mutual No. 49 of Constitution. under bonds provides an establishment of Inter- for the Act Commission) (hereafter County com- called Commission county (appointed person by posed each one (where only Judge) one and other here) selected the said two involved, are counties empowered appointees. to The Commission make agreements necessary to secure and de- and contracts property, industry, acquire velop to to construct build- (as trustee) Any ings, hold title for counties. and issue) any (where is a there bond and sale of contract approved by county proрerty county. court of must each provides 2 further each Act No.
compact may “issue bonds under Amendment No. 49” necessary provide money, and the counties, proportion agreement, shall determine the of the total project any each is to bear. cost Compact. through Baxter Counties, judge necessary legal each, court of took the compact provisions steps to into a under enter provisional formed, was A Cоmmission Act No. 2. pro- a held, called and in each was election Agreement entered into with the Lease was visional looking Mar-Bax to the establishment Co., Inc., Shirt building factory on 25 acres of land to he erected near the Marion line. Baxter Baxter by a 2,378 1,375 favored a bond issue vote of against. 1,473 and Marion’s vote was and 437 Litigation. previously Issues After men- steps separate tioned had been four suits taken, were challenging constitutionality filed of Act 2Nо. aspects proceedings. other taxpayer suit in Baxter One was filed *3 against County Judge, questioning the constitution- ality being Act 2 No. as in conflict with Amendment No. 49 and Article 28 7, § In this Constitution. (and suit same there was an intervention cross-com- plaint) by taxpayers, naming filed as additional third parties defendants the sheriff and and also clerk, provisional members of the Commission. an- Still other suit was filed Baxter which for all purposes opinion of this was the same as the inter- vention. among
The intervention things, asserts, other 2 Act No. violates Amendment No. 49, Article 28 7, § and Article 5 and §§ 6 of the Constitution, Agreement economically Lease is not sound. These appear suits were consolidated and now here as No. 2423.
In Marion ap- two similar suits were filed, plicable county. to These suits were .consolidated appear and now here as No. 2461. Cases No. 2423 hearing No. 2461 were consolidated appeal. on For the sake clarity of convenience and we will hereafter challenged refer those who first compact proceed- ings “appellants”, in each sought those who uphold proceedings said as “appellees”, and to the “cross-appellants.” intervenors as appel- favor of held in The trial court Below. Trial constitutionality after upholding Act No. 2, lees, Agree- proposed portions deleting Lease certain appealed Apрellees these “dele- have not ment. “proposed” the word have used tions.” We compact, “provisional” speaking the Lease developed Agreement itas because, and the Commission depends during legal on the trial confirmation below, given appeal. Testimony trial at the the outcome of this county judges that con- the two was to the effect forthcoming upon firmation will be an affirmance this court. Appellants that Act No. 2 viо- contend
The Issues. 28 of the also Article 7, § No. 49 and lates Amp.udTn.ent Cross-appellants make the same conten- Constitution. (a) they contend: The ex- thereto in addition tion and Agree- penditure by under the Lease Marion expenditure money as an economical is not ment (b) provided by No. The notice 49; 5 of Amendment § published was not as re- Baxter of election (c) quired by of said Amendment No. Act § 49; compact requires a before the bonds can he issued, No. (d) cannot issue bonds erect and; building factory in Baxter arguments appel-
Amendment No. 49. All of the *4 cross-appellants in this to lants and of contention seem encompassed proposition, in viz: he ment No. 49 Since Amend- provision Constitution makes no for compact attempted, make a counties to such two as here provision, which does make such a 2,No. Act must nec- ipso essarily he in and violation of said Amend- facto agree easily not do ment. We conclusion is so and no decisions deducible, are cited to confirm it. we a broad think, view of Rather, the Amendment and purpose adoption by people of its the the tends to refute adoption Before such conclusion. of Amendment No. county (or city) 49 in 1948no right had constitutional (vote bonds) prohibited its credit by to lend the ex- — press by of Article 16, § terms 1. Later, Amendments (13 example) prohi- to the Constitution and 17 for specific purposes bition was modified fоr certain —such purchase rights-of-way, as to and to build courthouses, purpose jails hospitals. In each instance the for prohibition (against lending modifying credit) was definitely adopting stated. Amendment No. Likewise, purpose just definitely 49 the was as stated and under- purpose viz: “. for the stood, developing industry.” (§ “pur- 49.) 1 of For that No. pose” every county given right in the state was to supported question issue tax bonds. The raised is: Do having right each counties, to issue have bоnds, right compact (or go together) the plish form to accom-
the same for their mutual benefit? This right given by legislature was to them the in Act No. 2. appellants’ cross-appellants’ To sustain contention position right they must take form such compact right springs a authority only. They from constitutional authority,
have no cited and we position. to sustain that none, know As is well known, government system legislature repre- our under people power sents the such is the resеrvoir all relinquished prohib- not to the Federal Government or right ited the State Constitution. The of counties to cooperate undertaking in a lawful for their benefit cer- tainly given away been to our Federal Govern- prohibited ment, and it has not been our State legislature Constitution. As we see right it, had to enact Act 2.No. Article 28 § the Constitution. We are unable
agree argument with project that the undertaken (under Baxter and Marion 2) Counties Act No. violates the аbove section of the Constitution. It reads:
“The courts shall original have exclusive jurisdiction relating in all matters taxes, roads, bridges, paupers, bastardy, ferries, vagrants, ap- prenticeship of minors, the money disbursement of *5 county purposes, every other may case that be necessary improvement to the internal and local con- respective cerns of the county counties. The court shall except judge, herein in cases otherwise one be held provided.” steps must all be essential mentioned,
As heretofore approved by county “tax” No can be voted court. approval, county the same is without the court’s money.” order of the true of the “disbursement pro- specified approve, trial which court, we county be turned over to the ceeds the bonds should see no reason courts and not the Commission. We proceeds why this instance, disbursement of subject general nоt be under the should laws, safeguards any same as other revenues. No actual abuse safeguards at this time. It is of these is before us not pointed to us out how counties should encounter any legal disbursing proceeds difficulties bond more approved than have. latter would was Wayland Snapp, Judge, in the case of v. Maurice 232 Ark. 2d 57, S. where an W. was under said established Amendment No. 49.
(a) contention that merit in the no There spent economically not proceeds be as the bonds will 49. required Amendment No. This section 5 of § reads: body municipality governing
“The jurisdiction shall exercise Court exchange any such bonds voted the sale over at an election held the electors pro- economically expand (expend) the funds so shall ’’
vided. part proceeds place bond no have the first In been spent, no was introduced to show the evidence spent economically. money As has been here- will juris- pointed will Courts have out, tofore proceeds the bonds. over diction (b) that the It is here contended Notice of Elec- published required by § was not 6 of Amend- tion objection 49. The the Notice ment No. published was only requires while the above twice section support published objection four times. To to be *6 696 is to
attention directed Intervenors’ Exhibit No. 4. But (given by sheriff) this Notice in the first to referred
part of said its Section and function people let the It to know election will be held. does published not have to times. Further be four down in provision requires the section there is another which given by that “Notice of the election shall be . . County Judge county by weekly advertisement for at least four times . .” There no contention properly given required that this latter notice was not by Amendment No. 49. Again
(c) no merit in the contention we can find “compact” requires a bonds can before No. Act 49. It must be under- Amendment No. issued under “compact” in Act No. refers that the word used stood agreement gener- single but no contract, written undertaking proceed jointly ally an effort There is no contention that to secure industries. Baxter step required every have not taken Marion Counties and up by Act and Amendment to this time. said Further steps necessarily must await the liti- conclusion appellants cross-appellants gation. think, we Also, and significance attach undue to the words “issue bonds.” legislature Undoubtedly the had in mind the issuance legal binding taxpayer, that were of bonds on the preparation printing and not the mere of bonds. They point procedure, out no alternative and we know fully comply none, would more with Act 2No. procedure than here followed.
(d) Finally, and somewhat more troublesome, is contention bonds issued (under 49) (or Amendment No. cannot be used to erect help erect) (factory) building in Baxter This wording contention is based on the in 1 § of thе Amend- ment which reads: “Any city of the first or any second class, incor-
porated any county, may town, issue, and with majority qualified the consent of the electors of municipality county voting said question on the at purpose, an election for the held approved bonds in sums majority for the at such election developing industry or near the within holding municipality or within election, said holding election.” *7 phrase Special significance “for . . . attached is industry developing . within and case in this county holding course, the election.” Of building County and the in Marion the election was held is to they County. circumstance, This be built in Baxter provisions plain of the say, shows a violation of the the words if that, It above section. must be conceded (necessar- “securing developing industry” means developing ily) “securing a as the words same factory building,” reversed. this case must be obligated to, we are not feel we do
However, interpreta- а to such strict be bound should, that we briefly have heretofore We Amendment. tion adoption purpose for mentioned certainly to assume reasonable It is No. 49. people’s jobs and thus principal to create was concern population rather unemployment prevent of’ loss accepted building. The by assure the erection than to meaning “industry” shown Webster’s the word “systematic Dictionary, labor International New habitual employed еsp., employment; human exertion reasonably if it can Therefore, the creation of value.” expended money can) (and that the we think it be said (in instance) furnish em- will this Marion ployment not been its the Constitution citizens, people Manifestly spirit. in letter or violated only domiciled that an felt would beneficial from the border miles employment, likely because would furnish them with percentage approved larger they than of votes people оf Baxter did provisions construing liberally Amend-
In required) (if construction ment No. 49 liberal purpose, following acknowledged we are effectuate its interpretation recognized of constitutional well rule Myhand clearly Erwin, in the case of v. as it is stated 444, Ark. 330 S. 2d which construed same W. Amendment. It was there stated: “This court has been liberal in its construction of n carry constitutional amendments, so as to out the ob- people adopting vious the amendment.” It is our conсlusion therefore from what we have heretofore said that the decree of the trial court must hereby, be, and it is affirmed.
Affirmed.
McFaddin and Johnson, JJ., dissent.
George Bose participating. J., Smith, dissenting.. Ed. F. Associate These Justice, MoPaddin, two cases were consolidated in this Court. first is Chancery from Baxter and the second Court, *8 Chancery My goes only Marion Court. dissent to the case Chancery styled King, from the Marion Court, v. Burnes opinion permanent I No. 2461. am of the that a injunction granted against should bе of the issuance bonds industry Marion Court because is not to be ' (cid:127) ‘‘ ” county. within the by appellee argument It was conceded in oral that only authority Amendment No. 49 is the for Act No. 2; only authority and that Act 2No. is the under which County issuing challenged Marion is bonds. I concede enough attempted Act No. is broad to cover what was but I here; maintain that Amendment No. 49 is not broad enough germane language to cover Act No. 2. Here is the of Amendment No. 49: any county may
“. . issue, and with the con- qualified sent of the majority of the electors of said . . . county voting question on the . . . bonds . . . for the purpose developing industry . . . within- holding (Emphasis supplied.) the election.” points
Two stand out: the bonds are for the (1) securing developing industry (2) within the county. firmly opinion I am obtaining of the developing manufacturing plant in Baxter not is County. industry All an within Marion hope population gain to result is can an increase people coming in Baxter to Marion to work рrovisions Con- fine; That is but within Amendment No. 49. stitutional “ sys- opinion . . as
The majority defines esp. employment; human tematic labor or habitual exer- employed accepting Even tion for the creation of value.” says sys- still the definition, employment tematic labor or habitual must be within the county. employment In at the case the labor and bar, County: inbe Baxter and not in Marion so the requirement Constitutional is not met. recognized 49No. of Amendment
That the framers county,” is clеar: be- words, “within the force says, municipalities regard the amendment cause, speaking municipality,” whereas, in “within or near said county.” says, “within the the amendment counties county, regards saying, Yet the effect Majority ” ‘‘ ’’ ‘‘ holding If that within means within near. venue to our in this case should extended Majority the confusion? statutes, where would be the end to ’’ they say; county, mean what words, “within the a different and I to torture to achieve refuse the words help meaning meaning, obtain even to two well Counties population plant in one and in the other. increase in *9 Chancery in affirmed the it, As I see the decree should be County in Marion Baxter but reversed the case, case. dissenting. Justice, I am Associate Johnson, Jim agree opinion Ias with the because see majority
unable glaring Act 2 constitutional defects in of there are Sixty-Second Extraordinary the First Gen Session Assembly. imagine I a eral think it would be difficult patent with No. 49 than that conflict Amendment more factory proposal in the to establish a contained County. majori in erected on 25 of land Baxter The acres ty interpretation simply given a liberal to Amend of No. 49. it has strained the definition the ment Instead “industry” beyond misapplied term it has the reason and Legislature power anything1 doctrine the has the to do prohibited adopts by which is not the Constitution and interpretation example, permit, of Act which would factory the a establishment of аt Damascus in Faulkner compact under the terms of a between Faulkner Perry spite County, in of fact that Da part mascus extreme northern of Faulkner Coun ty Perry County only and accessible to the inhabitants of by way Ferry by highway of Toad a Suck circuitous through Conway County route either or Pulaski Going interpretation further, majority’s Act 2 permit would adjoining counties of Little River and compact factory Miller to enter into a under which a could be constructed in Oklahoma, Texas, or because Louisiana, understanding “industry” if the majority’s term is. bordering correct, jobs would be created these states in which the inhabitants of Little River and Miller employment thereby could find benefit. If examples wholly these seem the fault lies absurd, with the misconception meaning basic of the Constitution on proceeds. which majority Legislature theory The majority’s has all legislative power except expressly by where limited implication by undoubtedly Constitution correct. fallacy application. original The lies, however, in its prohibi- Constitution, Article laid down a 12, Sec. flat by lending county. express a tion on the credit Certain exceptions have been made as Amendments 10, 13, 18, nothing 32 and 38. Amendment 49 is more than an addi- exception general prohibition tional constitutional lending county. on the of credit In other words, prohibited removes from the area the lend- ing by county credit “for the ” developing industry . . . within . inescаpable general prohibitions conclusion on lending county prohibit sought credit what is expressly to be Act 2 done unless Amendment 49, either *10 by necessary implication, prohibition or has removed the purposes for the stated therein. It clear, is then, may Legislature all do theory that the majority doing irrelevant prohibited is presents things from it which my opinion, this case In at bar. to the case permit issu- following questions: Does establishing county of in the ance of bonds county” county? industry “within the Does an another says, says? what it then If it does not mean mean what it industry may beyond a far of how borders comply re- with the constitutional and still be established my mean what striction? In says. the Constitution does view, county. must within the be established The physically of within the limits word “within” means county. “industry” common means what a the language word factory, always plant, dictated, i.e., manufacturing processing complexity physical of operations having It a more less well defined center. an indirect effect of establishment. does not mean the cry if it is no far to hold that the Gen- true, this were For, Corporation industry is in Pulaski eral Motors located County, certainly the economic effects of that in- because dustry great of are benefit the inhabitants Pulaski ‘‘ majority espouses trickle The decision of the logical theory economics, conclusion which down” industry (factory, it makes no difference where long plant, etc.), therefrom is established so benefits way in some will accrue to the inhabitants of the I am has made majority Thus, involved. convinced that the meaning departure plain a radical of Amend- prohibitions ment and other relevant Constitu- departure precedent one moreover tion, without as the which contains the seeds of destruction insofar lending system on the of constitutional limitations credit counties is concerned. only I a funda- majority
Not believe the has made do think 49,1 error in its construction of Amendment mental meaning completely ignored Article the true that it has my In judgment 28 of the Section 7, Section Constitution. delegate powers attempt 2 an 2 of Act obvious *11 702 commission. Under Court to a three-member empowered hold title section, Commission any proceeds property with the
trustee or construction They empowered may of “to bonds which issued. are be steps take all all contracts and tо make and enter into agreements necessary incidental developing mutually of to the that is beneficial parties compact” approval to the to the subject may employ engineers, Court. Commission The attorneys inspectors, managers, architects, and such other employees may necessary as in its in the judgment be powers may execution of its and duties and fix their com- pensation. expenses carry- All and liabilities incurred in ing powers may out the duties and be Commission paid including from funds, without limitation, available funds obtained from the issuance of bonds or from reve- acquired nues derived from facilities constructed or proceeds empow- of such bonds.” The Commission is acquisition any ered “after the construction or lands, buildings or and subject facilities, to the limitations con- equip, tained this Act ... to reconstruct, extend, improve, operate, maintain, sell, contract lease, concern- ing, dispose or otherwise deal in or of the said build- lands, ’’ ings empow- or facilities. All of this the Commission is following ered to do in the face of constitutional language:
‘‘ county original courts shall have exclusive jur- relating county isdiction in all matters taxes, roads, bridges, ticeship paupers, bastardy, vagrants, appren- ferries, money
of minors, the disbursement of purposes, every may necessary and in other case improvement to the internal and local concerns respective counties. court shall be held ’’ except provided. judge, in cases otherwise herein Art. 7, 28. Sec. purported powers
These of the Commission created exactly powers Act 2 are the kinds of which this Court belonged exclusively held Court in the case Campbell, Judge, v. Little Rock School Dist., majority al., et ap- Ark. S. W. 2d 267. The long has parently as the Court that so assumed expenditure there is no of funds some control over the prinсi- delegation. This is a reversal unlawful direct Campbell ples The Commission decision. stated merely discretionary power, given 2 is under Act system duty performing If functions. ministerial contemplated management by County the Con- Courts *12 must fall. Article Act 2 maintained, stitution is to then be simultaneously the law. and Act 2 cannot 28, 7, Section respectfully I above, dissent. For the reasons stated Fidelity Guaranty U. S. Co. v. & Moore. W. 2d
5-2429 S. Opinion May 1961. delivered appel- Hastings, for Jr., W. Pollard and R. Odell lant.
Yingling, Henry Boyett, by Boyett, Jr., & Comer appellee. appeal Johnson, Associate This is Justice. Jim appellee, sustaining an order demurrer filed