ARK.] MCADAMS V. HENLEY. 97
MCADAMS V. -HENLEY. Opinion. delivered June • 29, 1925. 1. EVIDENCE—JUDICIAL N OTICE— LEGISLATIVE JOURNALS.—The courts take judicial notice of the contents of journals of"the two houses of the General Assembly. CONSTITUTIONAL LAW—AMENDMENTS TO CON STITU TION .—In amending the Constitution the General Assembly does not act in the exercise of its ordinary legislative • authority, but it acts in the character and capacity of a convention. . 3. CONSTITUTIONAL LAW—AMENDMENT TO CON STITUTIO N.—The Constitution is the supreme and paramount law, which can be amended only (in accordance with the rules thereby prescribed. 4. CONSTITUTIONAL LAWENTRY OF AME NDMENT ON JOUR N ALS:— Const. art. 19, § 22, requiring that proposed amendments to the -Constitution "shall be entered on the journals with the yeas and nays," is mandatory and requires that such amendments be entered at length upon the journals of each house of the General Assembly, and it is not sufficient to make a mere identifying reference by title or otherwise. 5. CONSTITUTIONAL LAW—AMENDMENT AS TO , LOCAL LAW S.—The omission from the Senate journals of amendments adopted , in the House, to the Senate' resolution proposing Constitutional Amendment No. 12, prohibiting the passage ' of lbcal laws by the Legislature held to invalidate the amendment for non-compliance • with Const. art. 19, § 22, though the amendment received the required number of votes at the next general election. CONSTITUTIONAL LAWFUNCTION OF COURTS. — Questions of policy are not for the courts, which can only decide whether constitutional limitations are infringed, or whether a constitutional amendment has been approved by the people in the manner prescribed by the Constitution. ---7.- rv.YS—DIVERbitnsi ur /WAD 'DISTRICT'S FUNDS.—ACLS 19Z 5; N o. 53, authorizing a road district to use a part of its funds in part payment of cost of building a new bridge over a small stream crossed by the road held not void as impairing vested rights or authorizing the diversien of tax moneys to other uses than those for which the tax was levied, in violation of Const. art. 16, § 11, as the statute constitutes a legislative determination that the bridge is a part of the road. HIGHWAYS—DIVERSION OF' TAX MONEYS. — COristitlition, art. 16, § 11, prohibiting the use Of tax moneys for any other purpose than that for which the tax was levied, applies only to general taxation, not to local assessments.
98 Me:ADAMS V. HENLEY. [1\ - \\/ Appeal from Craighead Chancery Court, Western District; J. M. Futrell, Chancellor ; reversed. Horace Sloan, for appellant. Arthur L. Adams, for appellee ; Bal L. Norwood, amlicus curiae. MOCULLOCH, C. J. This case involves the validity of a statute enacted by- the General Assembly of 1925 (Act No. 53, unpublished) authorizing a road improvement district in Craighead County- to contribute of its funds a' specified amount in the construction of a 'bridge spanning , Cache River in. the route of the yoad; and the primarily controlling question in the case is whether or noi proposed amendment No. 12, which would prohibit the Legislature from passing bills for . local laws and which was voted on at the genaral election of :October 7, 1924, was legally adopted. The validity of the amendment is assailed, on the ground that it was not Proposed by the General Assembly in the manner prescribed -by the Constitution, in that the proposal was not "entered on the journals with the yeas and nays." Constitution 1874, art. 19, § 22. The. validity of this amendment- Was' not directly involved in the decisions of this , court in the recent cases of Brickhouse v, Hill, and Arlitt v. Hill, 167 Ark. 513, but those cases are decisive that this amendment received the requisite number of favorable votes for its adoption. • The Constitution of 1874 (art. 19, §. 22) prescribes the following method for proposing and adopting amendments thereto : "Either braneh of the General Assembly at a regular session thereof may propose amendments to this Con-. stitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals With the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six, months immediately preceding the next general election for
ARK.] MCADAMS V. HENLEY. 99 , Senators and RePresentativeS, at which time the same shall be submitted to the electors of . the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vete . on each amendment separately." It • as • often been 'decided by this court that we take judicial notice of the contents of the journals of the tWo Houses of the General Assembly, and in doing so in the present case we find the following 'state of ihe record with reference to the proposal for the adoption of said amendment No. 12. The proposal originated in the Senate and Was designated on the journal as "Senate Joint Resolution No. 9 by Norfleet . and Caldwell," and the resolution was spread at large on the journal in the following form: "Senate • Joint Resolution No. 9:" -"Proposed Amendment to the Constitution of the State of Arkansas: - "Be it resolved by the Senate . .of the State of Arkansas and the House of Representatives Of the State of Arkansas, a majority of all the members 'elected to each House agreeing thereto, that the following is hereby proposed , as an smendment to section 26 of orticle 6 .of the Constitution of the =State-. mf -Arkansa sr and 'upon being submitted to the elector 's of the . Stn+e for:approval or rejection at the next general election for Senators and Representatives, if a majority of the electors voting at such election ado p t such amendnient, the same shall become a part of . the Constitutioa of the State of Arkansas, towit : "Section 1. No local or special' bill shall be*passed by . the General Assembly of the State of Arkansas. Counties and municipalities shall have the power of legiSlation as to . all local and special legislation of every
100 MCADAMS V. HENLEY. [169 Character in and for their respective municipalities and counties, the manner to be provided by law; but no local legislation shall be enacted contrary to the Constitution or. contrary. -to any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith. - "Municipalities may provide for the exercise, of the initiative and referendum a.s to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum for loeal acts passed as herein provided.as fo the counties. "Fifteen per cent. of the legal. voters of any Municipality or county may order the *referendum or invoke the initiative upoh any local or special measure. "In municipalities the number of signatures required upon petition shall he computed upon the total vote cast for ;the office of mayor at the last preceding general election; in counties upon the Office cir-•cuit clerk. - "In municipalities and *counties the time fOr filing an initiative petition shall not be fixed at less than sixty nor more than ninety days before the election at which it is to .be voted upon; 'and for a referendum petition, . not less than thirty days nor more' than ninety days after the passage of such measure• by a. municipal , council.. • • "Section 2. This amendment shall take effect and be in force and operation sixty days after its approval and adoption by ,the people of the State of Arkansas." On a later daY the Senate adopted the resolution by the necessary two-thirds vote, and the resolution, as originally introduced and entered on the journal, was re-entered on the journal together with the yea and nay vote ihereon, showing the adoption. The resolution as adopted by the Senate was then transmitted to the House and was read the first time and spread, at large upon the journals of the House. There was, according to the recitals in the journal, a motion to table the l idUff-Ciff i Of . ■ 11PR E., a fh _ — r-z%.
ARK. MCADAMS v. HENLE Y. 101 resolution, but the motion failed . of adoption. On a - subsequent day a member of the House offered the following amendment to Senate Resolution . No. 9: "Amendment -to Senate Joint Resolution No. 9. - "Amend Senate Joint Resolution No. 9 by striking out the following words in line 1 of section 1, to-wit: 'or speCial.' - "Also by striking out the folloWing words from the firSt plaragraph of section 1, to-wit: "And any general law shall have the effect of repealing any local legislation' which iS in conflict therewith.' "Also . by striking out from section 2 the following .words, to-wit 'Sixty days.' " • The journals recite • that this amendment to the -resolution was read the . first a.nd second times and adopted, and immediately following the vote there is a recital in the House journal that Senate Joint Resolution No. 9 was read the third time and placed on 'final passage, and that the resolution was .adopted. . This occurred according to the journal, on March 6, 1923, and in connection with .this recital in the journal the resoiu-tion as it came from the Senate w . as again spread .at large with a recital of the vote by yeas and nays sho-Wing the adoption of the resolution by more than . tWo-thirds of the House. The last recital of the House journal, which was on the same day as the adoption of the resolution,-was that " Senate . Joint Resolution NO. -9 waS ordered inmiediately transmitted to the Senate." The recitals of the Senate journal on March 7, 1923, - are as follows: "Senate Joint Resolution No. 9 by Norfleet and Cald-well. . Was read the third tithe and placed on, final passage. The qUestion being, shall the bill pass? The Secretary called the roll and -. the following voted in the affirmative:.
102 MADAMS. v. HE N LE Y. [169 (Then follows the entry of the vote by yeas and nays showing the adoption of the amendment). There is no-reference. •anywhere on the . Senate journal as to any amendment 6f the resolution in the house. The Senate journal on March 6, 1923, contains a copy of the message from the House announcing the adoption "of Senate Resolution No. 9 by Senator Caldwell and others,"" but that announcement makes no mention of any amendment by the House. The last entry on the Senate journal is a report from the Committee on Enrolled Bills to the effect that Senate Joint Resolution No. 9 by Senator Caldwell had been presented to the Governor for his approval. The enrolled resolution on file in the office of the Secretary of State omits the words . specified in the House amendment to . the resolution, and in this foim. the proposed amendment was duly advertised and Submitted to the voters on the ballot at the general election in 1924. • • It is thus seen that the House amendment to the resOlution waS never entered on the journals of the Senate, .and that, the proposed amendment .which Was entered at large on the Journals of the Senate is materially different in its language and import from that which was submitted to the people at the next general election. If we were dealing with the validity or with the construction of a statute enacted by . the Legislature, it would be a matter of interpretation or rather a matter of presumption whether the recitals of the House journal meant that the amendment to the resolution was receded. from and the original Senate resolution finally adopted, or whether the amended resolution was adopted, notwithstanding the entry at that place on the journals of the original Senate resolution; but that is not the question in this case in determining the validity of t • he proposal, nor are we dealing with the question of presumption to determine whether or not the two houses of the General Assembly agreed upon the same proposal. The real question is whether the omission from the
ARIt.] MCADAMS V. HENLEY. 103 Senate journals of the House amendment and the substantial difference between the amendment entered op the journal of the Senate and the one submitted to i t119 people renders the adoption by the people ineffectual. At an early date in the history of the State . it was decided by this court in State v. Cox, 8 Ark. 436, that in amending the Constitution the General Assembly "does not act in the exercise of its ordinary, legislative authority of its general powers, but it possesses and acts in the character and capacity of a convention." this .doctrine-._ waS . repeated in the recent • cases.: of Whittemore Terrat, 140 Ark. 493, and Mitchell v. Hopper, 153 . Ark. : 515. In the last-cited case we decided that it is not essential that a resolution of •the General Assembly .proposing an: amendment to the Constitution . be submitted .to the Governor for approval, and that the Governor has no power -under the Constitution to veto such a resolution., In the case of Rice v. Palmer, 78 Ark. 442, , the court quoted with approval the language of another court in • announcing fundamental principles which must be con-. trolling in the present inquiry. That language is as follows : "The Constitution is the supreme•and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain, acts - are to be done, certain requisitions are to be observed before a change can be effected. But to what purpose are_these_acts_roquired t h. -requisitions enjoinud, if the Legislature or any other department of the government can dispense With them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound .constitutional policy requires the court to pronounce- against every amendment which is shown imt to have been made in - accordance with the rules prescribed by the fundamental law." Collier v. Frierson, 24 Ala. 108., We- find, in fact; from an examination of the authorities that. they are unanimous, with two excep-
104 MOADAms V. HENLEY. [169 tions, in holding that provisions of the Constitution with reference to the method of adopting amendments are mandatory and must be complied.with in order to amend the Constitution. The only conflict in the authorities is in the interpretation of certain requirements, particularly the one now under consideration, to be found in most Constitutions, to the effect that proposals sub-• mitted by the Legislature shall be entered on the journals. The only exceptions to this rule are found in the Prohibitory-Amendme nt Case, 24 Kan. 700, to which we • will later advert, and in the case of West v. State, 50 Fla. 154, where it was held that the constitutional provision in question was merely directory. It follows, therefore, from the overwhelming weight of authority that, if the language of our Constitution be interpreted to mean that a proposal of an amendment to the .Constitution must ibe entered in extenso on the journal of each of the Houses, this amendment was not legally adopted, for it is cltar that the amendment submitted to and voted on by the people was not the same in substance as that found to be entered at large on the journals of the Senate. The authorities bearing on an interpretation of the language in other constitutions identical with, or similar to, that found in the Constitution of this State concerning the method of proposing amendments are not harmonious, nor are they very abundant. There are many decisions referring to the question of legal methods of proposing and adopting constitutional amendments, but when we come down to the very question involved in this case the authorities are not numerwis, and in several of the States the decisions of the courts of last resort are hopelessly conflicting. In a note to a case in 9 Am. & Eng. Ann Cas, we find, on page 587, the following statement of the law: "A distinction has been drawn between the rules governing acts propoSing constitutional amendments and those applying to ordinary statutes which are assailed as not having been constitutionally enacted. Where it
ARK.] MCADAMS v. HENLEY. 10c) is provided in the Constitution that "any amendment or' amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such- proposed amendment or amendments shall be entered in their journals with the yeas and nays taken thereon, and it shall be ihe duty of the Legislature to submit such proposed amendment or amendments to the peoPle," etc:, it is held that the jour- • nal must show the amendment and vote thereon, and that the court will look to the journals to . ascertain if the proper steps were taken. It is further held that the journal is the record from which it must appear that the amendment has been enacted in the form required by the Constitution, and that the rule whereby a sfatute which has been enrolled, authenticated, and deposited with the , Secretary of State cannot be impeached by reference to the legislative journals has no application." The cases holding that this constitutional requirement is satisfied merely by an entry which le.ufficiently identifies the proposal by reference. to title, or otherT wise, seem to be in the majority. Prolvibitory-Amendment Cases, 24 Kan. 700; Worman v. Hagen ., 78 Md. 152 ; Oakland Paving Co. v. Tompkins, 72 Oal. .5; People v. _Sours, 31 -Colo. 369 ; State v. Herriad, 10 S: D:109 ; Postel v. Marcus, 160 . Wis. 354; Ex parte Ming, 42 -Nev. 472; 1.81 Pac. 319,. 6 A. L. R. 1216. -There is a case note in fi A..L. R..1227, which fully reviews the authorities on .this subject. On the other hand,,there are . caSes boldi— that where the language of the Constitution requires that a proposed amendment shall be "entered on .the journals,", this language means that it must [be entered in extenso and not merely by reference to title, or other-, wise, and that an omission. to *strictly comply with -the provision invalidates the . proposal. Koehler .v. 60 Ia. 543; Bailey v. Brookhart, 113 Ia. 250; People V. Loomis, 135 Mich. 556; Durfree v. Harper, 22 Mont. 354; In re Senate File, 24 Neb. 864. It is thus seen that the
106 MoADAms V. HENLEY. [169 • two conflicting rules of interpretation are supported by respectable authority, and we feel at liberty to adopt that line of authority which is consistent with our own conception Of the better reasoning •on the subject, and that which appears to us to have been the intention of the framers of,this . provision of our Constitution, when read and considered in connection with other provisions thereof. The decision of the Supreme Court of Kansas in the Prohibitory Amendment Cases, supra, is generally cited as the chief exponent of the doctrine that a mere. identifying reference on the journals of the General Assembly is sufficient to satisfy the requirement that the proposed amendment must be "entered on the journals." The opinion in that case was written by Judge Brewer and for that reason, if for no other, commands the utmost respect. The opinion, however, is much weakened by the fact that it is out of line with the almost unanimous authority in holding that a provision of this kind is not raandatory but merely directory. In fact, it was not decided ift that case by the distinguished jurist that the words, "shall .be entered on the journal," meant that a mere identifying reference to the amendment could be entered on the journal and was sufficient compliande with that language, but he held that the 'requirement was merely directory, and 'that • the will of the people as expressed at the ballot box coUld mit be overthrown by failure . on the part of the Legislature . or of its agents to enter the proposed amendment on the journals. He propounds the inquiry, "Is the failure to enter this amendment at length on the journals fatal?" and answers it by stating that the "two important, vital elements in any constitutional amendment are, the assent of two-thirds of the Legislature, and a majority of_the popular vote," and that a failure to comply with the provision with reference to making the proper record of the legislative proceeding does not defeat the amendment, which has in fact been propoed by two-thirds of the General Assembly and adopted by the votes of a majority of the
ARK.] MCADAMS. V. ' HENLEY. 107 people. Notwithstanding the learning and ability of that great jurist .who wrote that opinion, it is so far out of line with all of the other adjudged cases . on the question upon which the decision rests, that we-must discard it as a controlling authority in interpreting . the meaning of the language of our Constitution. The Supreme Court of Wisconsin in the case of Postel v. Marcus, supra, first decided that the requirement for entering a proposed amendment on the journal ot each house meant that it should be entered in extenso, and not merely by reference to title or otherwise. 'The. opinion was written by Judge Marshall, but on.rehearing the decision was changed, and it was held that an identifying reference •on the journals • was sufficient. It appears that the original decision of the Court resulted in invalidating about twenty-five important constitutional amendments reaching back for many years,.and that this fact had its influence on the court in changing the opinion. We feel at liberty in thus commenting on the decision from the fact that this situation in which the court found itself is fully disclosed in the opinions on rehearing; not only that of the Chief Justice, who ; wrote the additional opinion, but also the dissenting opinion of judge Marshall and the concurring opinion of another of the justices. It will be obserVed that the case of Koehler v. Hill, 60 Iowa 543, and the ease of Worman v. Hagen, supra, which are conflicting on this question, were both reviewed by this court in Rice v. Palmer, supra, .and the doctrine of the Maryland case was -condemned and the doctrine of the Iowa case approved. It is true the discussion arose over another point, but it related te the question of the adoption of constitutional amendments, and the opinion of our court in Rice -17.' Palmer shows that the attitude of the Maryland court on that subject did not meet with the approval of this. court. The language in the Constitution of the State of Iowa with respect to amendments is almost identical with our Constitution as to the provision requiring the
108 MoADAMS V . HE N LE Y . [169 entry of proposed amendments on the journals of the General Assembly. The Supreme Court of that State in Koehler v. Hill, supra, said: • "The evident intent of the Constitution is that' the proposed amendment should be entered at length on the journal, or, at least, so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the . yeas and nays can be as readily dispensed with as entering the resolution, and yet this is the constitutional mode of ascertaining whether a majority of the members elected to each house agreed to the amendment. * * * It seems to us that a siinple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the Constitution, and the thought that this must be so is much strengthened when regard is had to all the provision§ of the Constitution. That instrument provides that upon the final passage of a bill the yeas and nays must be taken, and the same entered upon the journal. This necessitates the entering on the journal of the title or substance of the bill , to be voted upon. This being so, if no more than this was intended in'relation to a constitutional amendment, the provision as to entering it on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the Constitution does require that a proposed amendment thereto 'shall be entered' on the journals 'with the yeas and nays.' This must mean that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn." The reasoning of the court in that case precisely fits the present situation under our own Constitution. The Constitution of 1874 (art. 5, § 12) provides : "* * ' Each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts as reauire secrecy ; and the yeas and nays on any question shall, at the desire of any five members, be entered on the journals." The only requirements in the Con-
ARK.] MCADAMS V. HENLEY. 109 stitution with respect to what shall be entered on the journals is the one under consideration with reference to amendments, and the one in § 22, art. 5, that "no bill shall become a law unless on its final passage the vote •be taken by yeas and nays, the names of the persons voting for and against thie same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor;" and the one in § 15, art. 6, that, in case the Governor vetoes a bill, "he shall•return it, with his objections, to the house in which it originated, which house shall enter the objections 'at large upon their journal and proceed to reconsider it." It was necessarily assumed by the framers of the Constitution that, so 'far a's concerned the enactment of statutes, the journals should contain some reference to the passage of bills through the two houses so as to identify them and show the course of the proceedings— this without any special requirement to that effect. If the framers of the Constitution had intended 'that nothing more than that was to be required concerning amendments to the Constitution, it would have been unnecessAry to put in the additional requirement that amendments shall be "entered on the journals." It will also be observed that the requirement of the Constitu-tien is not merely that the proceeding in regard to proposed amendments shall be entered on the journals-not merely a history of the passage of the proposal through the br■T i QQ be e r itere A —but it provides that the - ment itself shall be entered on the records. The Precise language is that "such proposed amendments shall be bntered on the journals with the yeas and nays:" It is our duty to give csome meaning to the language of the Constitution, and not to presume that this provision was put in merely as a well-rounded phrase. As said by the Iowa court in Koehler v. Hill, there is as much reason to hold that it was not necessary to enter the yeas and nays at large on the record as it was to hold that it was unnecessary to enter the amendment at large.
110 ikOADAMS V. ITENLEY. 1169 We ihave decided that the provision in § 22, art. 5, requiring the yeas and nays to be entered on the , journal on the final passage of a bill is mandatory, and that the omission renders an enactment void. Smithee v. Garth, 33 Ark. 17 : State v. Bowman, 90 Ark. 174; Butler v. Board of Directors, 103 Ark. 109. Our conclusion is that the proposal of an amendment to * the Constitution is void unless the amendment is entered in extenso on the journals of each of the two houses of the General.Assembly, and that a mere identifying reference by title or otherwise is insufficient. We do not mean to 'hold that it is essential to the validity of a constitutional amendment that the entire proposal as it may be affected by amendments adding or subtracting language in the course of its progress through the two houses must be spread upon the journal of either house at the same place or at the same time. I),ifferent parts of the journals of the respective houses may, if connected up so that the whole of the amendment as finally adopted by both houses, appears upon the journal of each house, be treated as sufficient to make a complete record; but we do hold that where any substantial part of the amendment is omitted entirely from the journal of either one of the houses, even though it appears on the journal of the other house, it renders the proposal invalid. By way of illustration, we might take the journal of the House in this instance, which shows the original resolution as introduced in the Senate was spread at large upon the journal, and ther9 were certain amendments which were also separately spread on the journal. Now, if the House had adopted the amendinent by a yea and nay vote spread on the record without actually re-entering the amended resolution, that would have been sufficient, o because the original Senate resolution and the House amendment are connected together, so that it is in effect a coinnlete entry of the whole amendment as adopted-by the House. But when we come to the Senate journal, we find .nothing there but the entr y of the original resolution. If the journal of the Senate had contained a recital of the House
ARK.j MCADAMS v. HENLE Y. 111 amendments and a corrected copy of the .same was entered on the journal, an adoption of the amendment would • have shown the whole' of the resolution • that the Senate adopted, .and it would have been unnecessary to-re-enter the original resolution as amended. The two entries, in other words, would have been sufficient ; but, as the journal ehtry now' stands, there is no disclosure whatever -On the Senate journal of the House amendment, therefore the Constitution has not been complied with. Nor do we mean to- say that a compliance with this provision must be absolutely literal. On the contrary, we say that the omission of an immaterial portion of an amendment—one pot affecting its meaning or interpretation—would not affect, its validity. It is . only a 'substantial omission from the record which is fatal, and' not merely immaterial words which do not . affect: the ' real meaning of the proposal. It is easily seen that the House amendments are substantial; and that the '01111SSiCIL of them from the journal is an important departure from the text of the proposal as amended by the house. There is one portiOn of Judge Brewer's opinion in the Kansas case, supra, in . which we heartily concur, and it is this : "But questions •f policy are not questions for the courts. They are wrought out and fought out in . the Legislature and before the people. Here the single- question is one of power. We make no laws ; we change no constitutions ; we inaugurate no policy. .When the Legislature enacts a law, the only question we =can decide is, -whether-the li — itations. of -the canstitutinn have been infringed upon. When a constitutional 'amendment has been submitted, the single inquiry for us is, whether it has received the •sanction of- popular a p proval in the manner prescribed by the fundamental •law. So that, whatever may be the individual opinions of the , justices of 'this court as to the wisdom or •folly of any law or constitutional amendment, and notwithstanding tbe right which as individual citizens we may exercise with all other citizens in expressing through the ballot bOx our personal approval or disapproval of proposed
-112 McADAMS V. HENLEY. [169 • constitutional changes, as a• court, our single inquiry is, have constitutional requirements been observed, and limits of power been regarded? We have no veto. The judge who casts his individual opinions of . wisdom or policy into the decision • of qUestions of constitutional limitations and powers, simply . Usurps a prerogative never committed to • him in the wise distribution of duties made by the people in their fundamental law." -- This ends our discussion . of the question of the . validity of propOsed amendment No. 12, and we hold that it is void on 'account of the failure of the General Assembly . to enter the proposal in accordance with the express mandate of the Constitution. It is unnecessary to discuss the questions raised in the case as to what the effect of 'the amendment would have been with respect to being self-executing as a limitation upon • the action of the Legislature and with respect to what constitutes - local legislation within its meaning'. There is, however; another question in the case which calls for discussion. It is Contended that the statute under consideration is void for the reason that it mithoriies a wrongful diversion of funds Of an ithprove-mént district. Road Improvement District No. 2 of Craighead County was created by a statute enacted by the General Assembly of 1919 (Road Acts . 1919, vol. 1, p.- 174) for - the purpose of improving a public highway running from the city of Jonesboro to the line between Craighead and LaWrence counties: There was authority in the statute also to improve a lateral road which connected with the main line. The main line of the improved road crossed Cache River, and at the time of the formation of the original plans there was a bridge across the river, which • it was thought would last far some • y ears, and plans omitte . d re-construction of a bridge. The road was constructed without a new brid g e, and assessments were levied and bonds issued. It now becomes necessary to .build a bridge across Cache River, and the General Assembly of 1925 enacted the special statute now under
ARK. MCADAMS V. HE N LE Y. 114 consideration authorizing the construction of a bridge across Cache River at a cost of not exceeding $20,000, and providing that the board of commissioners of the road improvement district could use the sum of $4,500 of the funds of the district in the construction of the • bridge, the remaining portion of the cost to be paid out of federal aid and out of State • aid funds to be distributed . by the State Highway Commission. The statute provides that the plans for the improvement must be approved by the county court, and the work of constructing the bridge "may be done directly through the joint action of the county court and board of commissioners of said district.and the State Highway Department by purchasing material and employing labor, or they may at their option let a contract to a contractor tO' construct said bridge." It is shown that this contribution from the funds by the district can be made withOut • an additional assessment on the lands and without diversion of funds needed to pay off the bonds of the district. The contention of counsel for appellees is that the contribution of funds authorized by this statute would operate as a diversion or misappropriation of funds in violation of that provision of the Constitution (art. 16, § 11) that. "no moneys arising from a tax levied for one purpose shall be used for any other purpose." Counsel rely on the decision of this court in Paving District No. 5-of Fort Smith v. Fernandez, 142 Ark. 21. That case, we think, has no application to the case now bc,foreLv is, -for it-invOlvcd -the- -legislative—authority- to — reappropriate funds of a municiPal improvement district, and the basis of our decision in that case was that the consent by the owners of property to the construction of the original improvement being necessarY under the Constitution (art. 19, § 27), funds arising from •taxes levied on benefits could not be used for any other purpose without the consent of the owners of the property. Upon the same principle we decided in the ease of Dauer V. North Arkansas IlighwO Improvement District, ante P. 220, that property owners in a local improvement disVrict
114 MOADAms V. HENLEY. [169 .had an interest in the funds of the district, and that it was an impairment of their vested rights for the Legislature to enact a law to divert the funds to uses other than for the benefit of the, owners. Neither of those eases has any bearing on the present controversy, unless it be held that the bridge sought to be constructed is an independent improvement. Cache River is a small, non-navigable stream at that place, and we do not think that it can be treated as an improvement which is necessarily one independent of the road district. This , statute constitutes a legislative determination that the particular bridge is not an independent project, but is a part of the construction of the road. We are not at liberty to set aside the legislative finding unless it appears to be 'demonstrably arbitrary and unwarranted. Bennett v. Johnson, 130 Ark. 507. We have held in former decisions that the Legislature cannot join . to a road improvement district, as part of the same unit, the construction of a bridge which necessarily constitutes a separate project, but that it is within the power of the Legislature to authorize the construction of-bridges which are merely incidental 'to the improvement of a road. Mack v. Para-gould-Hopkins Bridge Road Imp..Dist., 168 Ark. 867 ; Van Dyke v. Mack, 139 Ark. 524; Bullock v. Dermott-Collins Road Imp. Dist., 155 Ark. 176; Wimberly v. Road Imp. Dist., 161 Ark. 161. If the Legislature had in the beginning found that the construction of a bridge was part of the same project of improving the highway and authorized the road improvement district to construct the bridge, it was . still within the power' of the Legislature, even though the road itself had been completed, to join to it the improvement which could have been included in the 'beginning, and to do so does not constitute a diversion of funds. In other words, the addition of this improvement is,_in effect, the same as if it had been included in the' beginning, and the use of funds arising from taxes levied on the benefits to real property does not constitute an impairment of vested rights or a diversion of funds of property owners to uses other than for their
own benefit. Section 11, art. 16, of the Constitution, providing that "no moneys arising from a tax levied for one Purpose shall be. Used for any other purpose," has no application to ' the statute now under consideration, aS that provision applies only to general taxation and not to local assessmentS. It follows from the views we have expressed that the statute under consideration is valid ; so . the decree is reversed, and the cause is rethanded with directions tp dismiss the complaint for want of equity., WOon and HUMPH-RE VS„JJ., -dissent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.