122 S.W.2d 608 | Ark. | 1938
This appeal presents questions requiring a construction of act 193, approved March 3, 1937.1
Appellee, for a consideration of $4,362.64, sold Perry county a tractor, payment to be made in equal quarterly installments of $545.33, beginning January 15, 1939. The last installment matures October 15, 1940. *384
[EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] *385
The purchase is evidenced by an agreement of August 16, 1938, executed by the County Judge. At an adjourned term of County Court August 29, 1938, the contract was confirmed by an order which, if valid, would have the effect of a judgment.
Appellant Taylor, a citizen and taxpayer, intervened. He was granted an appeal to Circuit Court, where the cause was heard on stipulation,2 without jury. *386
The Circuit Court properly held that Amendment No. 10 to the Constitution3 does not prohibit counties from making contracts for expenditures in excess of revenues derived or anticipated from the so-called Turnback Fund.
In Anderson v. American State Bank,
The Circuit Court's second declaration of law was that act 193 did not prohibit Perry county from making contracts and incurring expenditures for the 1938 fiscal year in excess of amounts received during such period if payment is pledged from the Turnback. *387
In its third declaration the court held that if the act should be so construed as to prohibit counties from making contracts and incurring expenditures in excess of amounts actually received from the Turnback and other funds during a designated fiscal year, that part of the act would be void because the command can only be understood and the legislative intent ascertained by referring to Amendment No. 10, and 23 of Art. 5 of the Constitution does not permit laws to be revived, amended, or the provisions thereof extended by reference.5
In conclusion, the court held that the contract to purchase, the order of the County Court approving the claim, and the eight warrants payable from the Turnback were in all respects valid.
Counsel for appellee insists it is not reasonably possible to spell out of the language of act 193 any limitations upon expenditures from the Turnback. In the first place, they say, title to the act is the Legislature's assurance that nothing is to be dealt with except Amendment No. 10.
After stating the duties of Prosecuting Attorneys with respect to enforcement of the Amendment and mentioning by way of emphasis its purpose to prohibit issuance of warrants or the making of contracts in excess of revenues received from all sources, the act says: . . . "and, hereby, especially from the provisions of act 63 of 1931, being the County Turnback Fund, for any current fiscal year."
This provision is followed by a clause authorizing County Judges "to set aside out of said Turnback Fund heretofore received not more than 50 per cent. of said fund for the purpose of constructing and maintaining county roads." Other portions of the section relate to pre-existing indebtedness, which will be referred to in order.
Appellee contends that 1 deals with but two matters: duty of Prosecuting Attorneys to enforce Amendment *388 No. 10, and the right, created in County Judges, to set aside fifty per cent. of the Turnback, and . . . "in accomplishing these objects the act certainly did not, by its language, place any limitation or inhibition on the expenditure of the Turnback. The only mention of the Turnback found in the act is that part of 1 following the figures `1874' beginning with the words `wherein it is provided' and ending with the words `fiscal year.' The part of the section just referred to is certainly only descriptive. It merely, gratuitously and futilely, expresses the opinion of the Legislature as to what Amendment No. 10 provides. This language, being purely descriptive, has no legislative force or effect, and therefore of itself can place no limitation upon the expenditure of the Turnback."
We agree with appellee that the language employed cannot, "of itself," place a limitation upon expenditures from the Turnback. But the language is not intended to stand alone. Some meaning must be given to words used by the Legislature in its obvious endeavor to identify the Turnback. We must presume the lawmaking body was apprised of the interpretation given Amendment No. 10 by this court. There was knowledge that the Turnback had been classed as a state fund — a fund exempt from the provisions of the Amendment. With this information before it, the General Assembly undertook to compel enforcement of what it considered salutary provisions of Amendment No. 10 — enforcement through express directions to Prosecuting Attorneys. But following the mandate so expressed, and following enumerated prohibitions of the Amendment which was designed to prevent any county officer from making expenditures and creating of ligations in a manner counter to the Amendment's purpose, there was added the language in controversy, . . . "and, hereby, especially from the provisions of act 63 of 1931, being the County Turnback Fund, for any fiscal year." To give the quoted part of the section effect, the word "from" must be construed as meaning revenue arising from the Turnback.
In White v. Loughborough,
The instant statute is not one where a law was "revived, amended, or the provisions thereof extended or conferred by reference to the title only." Section 1 sets out, in explicit terms, the essential provisions of Amendment No. 10. There is no reference whatever to a title. But there is a declaration that the Turnback shall be controlled by the provisions of Amendment No. 10, and this may be done by the method adopted. Further evidence of the legislative intent to require counties to conduct their financial affairs with revenues received from all sources for a particular year is reflected by the emergency clause (4 of act 193) where it is declared that failure of officials to enforce the Amendment has "brought about a condition of laxity . . . relative to expending more funds than [are] received during each fiscal year . . ." [Italics supplied]. *390
It must be conceded that the act is ineptly expressed; yet, if we are able, from the terms employed, to determine what the purpose of the Legislature was, and if the manner of enactment does not violate accepted constitutional construction, it is the duty of this court to give effect to the intent.
County Judges, "at their discretion," are authorized to "set aside out of said Turnback Fund heretofore received, not more than fifty per cent. of said fund for the purpose of constructing and maintaining county roads." A limitation on this right is that its exercise shall not impair pledges for payment of bridge improvement district indebtedness, nor shall the act affect "any agreements heretofore entered into for the payment of judgment or judgments entered against any county or counties of this state."
Prior to approval of act 193, it was lawful for County Judges to pledge expectant funds from the Turnback. Hence, if an apportionment of 50 per cent. or any other part of such Turnback, when set aside in a separate account for construction and maintenance of county highways, should result in impairment of contracts made before the act was approved, to such extent the statute would be void.7
We are of the opinion that the reference in 1 of act 193 to "agreements heretofore entered into for the payment of judgment or judgments" contemplated valid contracts made by County Judges payable from the Turnback. Where purchase was so made, an implied agreement arose that such judge, when County Court convened and the claim was duly presented, would make an order of allowance. Such allowance would have the effect of a judgment. Under this construction no distinction is made between valid contracts, and agreements for judgments.
The judgment is reversed. The cause is remanded with directions to the Circuit Court to enter an order adjudging that payment of the warrants in question may be made from any presently available funds of the county. *391 As to that part of the judgment directing payment from prospective Turnback funds — funds accruing to succeeding fiscal years — there is disregard of what we construe to have been the legislative intent, as expressed by act 193. Therefore, the agreement upon which the judgment was predicated is prohibited.