436 COUNTY BOARD OF EDUCATION V. AUSTIN. [169 COUNTY BOARD OF EDUCATION V. AUSTIN. Opinion delivered June 29, 1925. 1. EQUITY—DIVERSION OF SCHOOL FUNDS—JURISDICTION.—The chancery court has jurisdiction to restrain county officers from appropriating or using the school funds in their hands for any 'other purpose than the support of schools. 2. SCHOOLS AND SCHOOL DISTRICTS—DIVERSION OF SCHOOL FUNDS.— ' Special Acts 1919, p. 294, § 17, is in conflict with art. 14, § 3, and art. 16, § 11, of the Constitution, in • so far as it requires the proportionate excesS of fees from the school fund over the salaries of the treasurer and collector of Lonoke County to be covered into the county general fund, instead of into the school ' fund. 3. SCHOOLS AND SCHOOL DISTRICTS.—In determining the excess of fees and commissions of the county collector and county treasurer of Lonoke County, under Special Acts 1919, p. 294, the county, court should charge to the school fund the proportion which the school tax collected bears to the total amount of taxes col: leeted for the year; but in making this apportionment the court. should not consider the funds collected on Special 'improvement diatrict assessments, such assessments mit being taxes - within the meaning of the Constitution. 4. CONSTITUTIONAL LAW—PARTIAL INVALIDITY OF ACT.—Section 17 of Acts 1919, p. 294, being unconstitutional, may be stricken out without impairing the remainder of the act, which remains complete in itself and capable of being execoted in accordance with the apparent legislative lintent. Appeal from Lonoke Chancery 'Court; John E. Mar-tineau, 'Chancellor ; reversed. Trimble & Trinnble, for appellants. W. J. Waggoner and Chas A. Walls, for appellees*. WOOD, J. A.ct 173 of the Special Acts. of .1919,, page 294, is an act entitled "An act establishing and fixing the salaries- and fees of the county officeks for Lonoke County, Arkansas, and for other 'purposes."
The first eleven sections of the . act -fix the s-alaries and
fees of the county officers. 'The 12th section provides that the sheriff and collector and other officers designated therein shall charge and collect the same fees and commissions as are now, or may hereafter be, allowed . bY law, and shall make a true report and settlement on
ARK.] COUNTY BOARD OF EDUCATION V. AUSTIN. 437 the first day of the quarterly term of the Lonoke County Court, paying all fees, emoluments and commissions collected by them, or which they should have collected during the preceding quarter in excess of their respective salaries and fees allowed them, into the county treasury, after deducting the amounts of their respective salaries. Section 13 of the act requires that the officers designated shall, at each and every settlement, pay over to the treasury the funds received by . them in excess of their salaries, etc. • Section 14 provides that each of the officers designated shall keep a well bound book showing the amount of fees, emoluments and commissions earned and expended and received by them, etc. Section 15 makes the failure on the part of the officers designated to comply with the requirements of the act a misdemeanor and prescribes the proceeding and punishment against those found to be delinquent. Section 16 provides that the county judge•shall furnish the salaried officers of the county with records,' stamps, stationery and equipment necessary for the proper conduct of the offices; the expense to be paid out of the county general fund. • Section 17 is as follows: " That all money paid into the treasury arising from fees, emolunients and commis= sions, collected by the comity 'officers under the provisions of this act, shall be paid into the county general fund." Section 18 fixes the compensation for grand and petit jurors during the years 1919 and 1920. This action was instituted in the chancery court of Lonoke County by the county board of education •of Lonoke County and one Davis, a citizen and taxpayer, against the county judge, treasurer and collector.' Plaintiffs set out the provisions of the act as above set forth and alleged in substance that'the collector had collected during the years 1919 to 1923, inclusive, the sum ' of $37,723.72 in fees, emoluments and commissions, 'of
438' COUNTY BOARD OF EDUCATION V. AUSTIN. [169 whichthe sum.of $15,722.76 was a school fund ; thAt the pro i-ata. share due by the school fund to the collector's salary-amounted.to $8,320; leaving a balance . due .the school fundin the hands of the county.treasurer the. sum of $7,402; that' the treasurer had collected in fees and commissions :for :the years 1919 to 1923, inclusive, the sum of $27,825.98 of which $16,219.90 were school funds ; that the pro rata share due by the school fund to the salary of the treasurer was. $6,441.26, leaving . a balance due iii the hands of the treasurer:after paying his salary the sum of $9,571.64 belonging to the school . fund. Attached to the : complaint were eXhibits -ShoWing the amounts that • it was alleged should be paid to the school fund after the paythent. of the treasurer's .and collector's. salaries in tile sum .of $16,974.40. ,It was ,alleged in the complaint that section 17 of act 173, -supra; is unconstitutional and void ; that , it was the- dutY . of. the board 'of education to apportion all school funds as provided by law in conformity . with the regulations • of the- said board, and to place to- the credit of •the ,CODIU1011. school fund of the county.all sChool funds • in the, county treasury, to be apportioned- among the school,:districts 'of the county.' It was alleged that. the . taxes of 1923 were sufficient to • covet and pay the illegal exactioris and :overplus . *due the sa.id• schbol fund for theyears '1919-1923, 'inclusive; as shown by the 'settlements, made and •exhibited -With the complint ; that the Milk of the :taxes for 1924' would•be paid into' the treas: urer's office to the credit of the general fund as heretofore,: and all' conrinisSions earned by . the collector And treasurer in excess of their salaries, 'including the school fimds, would be, passed to the • credit of the county general fund. • The-• prayer of the • coMplaint was that th'e county judge be perinanently restrained . frbm ordering the treasurer to transmit the schoorfunds in' his hand's fo the credit •of the county general fund, and that; upon final hearing; the treasuter be'direbtedto hold the school funds iri:his :hands for apportionment by the . 'connty:board of
ARK.] COUNTY BOARD OF EDUCATION V. AUSTIN. 439 • education among the school districts of the county, and that a master be appointed to state an account ;of the amount due the school fund by the county general fund for the years 1919-1923, inclusive. The answer: of the officers, by its admissions and denials, raises the issue as to the . constitutionality of act 173, of the Acts of 1919. The answer states that, ,under the terms •of the act requiring them to pay into the county general fund all fees, emoluthents and commissions collected by them in, excess of their salaries, they had complied with the act by paying such funds: into the county general fund ;-that they had made settlements ,with the county court in -accordance:with the statements, which they filed and made exhibits to their answer, which exhibits had been approved by the county court, and that there was no liability "On- their part. It was alleged-in the answer that the county judge, if. act 173 is: fina•ly adjudged unconstitutional: or partly so; will apriropriate such sums as may be finally adjudged to be due the school fund, if any, for the purpose of restoring -said funds to the school fund of Lonoke County. The county judge set up that the chancery court had- no jurisdiction to enter any sum whatever as a judgment against the county. He further alleged that he had directed 'the county treasurer and collector to hold intact the fees and commissions collected by them on the school fund. The officers joined in the prayer that the court flu the basis for the distribution of the funds now enjoined in the hands of the county collector and county treasurer. The trial court, upon the pleadings and exhibits thereto, found that act 173, supra, was constitutional and dissolved the temporary restraining order, and -ordered that all fees collected by the collector and treasurer in excess of their respective salaries be paid into the:countY general fund , as provided by that act: : The court thereupon entered a decree dismissing the complaint for want of equity, from which is this appeal. 1. The chancery court had jurisdiction to restrain the county officers from appropriating' or using the
440 COUNTY BOARD OF EDUCATION V. AUSTIN. [169 school funds in their hands for any other purpose than the support of schools. See Amendment No. 9, Constitution of 1874, Crawford & Moses' Digest, p. 133; also article 16, § 11, Constitution. The complaint, in substance, alleged that there had been a diversion of school funds by the county judge, the collector, and the treasurer for the years 1919 to 1923, inclusive, and that, unless these officers were enjoined, there would be a diversion also of the school funds in their hands for the year 1924 by the payment of school funds in their hands in excess of their salaries into the county general fund where the same -Would be used for general county expenses, such as public improvements, etc, and not specifically for school purposes ; that the officers named claimed that they were authorized to handle the school funds in the Manner indicated by the provisions of act 173 of the Special Acts of 1919, which are set forth in the complaint, and that so much of said act as provides for the placing of all fees, emoluments, and commissions, received by these officers into the general county fund to be used for general county pbrposes was unconstitutional and void. The answer does not deny these allegations, but avers that. the school funds in the hands of the collector and treasurer of the county for the years named in excess of their salaries had been passed to the credit of the county general fund under authority of the above act, and that the county judge had treated the funds as county general fnnds and directed their exPenditure for the years mentioned for general county purposes under the authority of such act, and the pleadings show that the officers will treat the school funds for the year 1924 in the same manner. Thus the issue raised by the pleadings is within the jurisdiction of the chancery court, and the question to be deterndned is whether or not § 17 of the act violates the Constitution. 2. In the recent case of State use of Lonoke County v. Swaim, 167 Ark. 225, we had under re-View this same aet and particularly § 3 thereof, which fixes the salary of
ARK.] COUNTY BOARD OF EDUCATION V. AUSTIN. 441 the circuit clerk. It was contended that § 17 was unconstitutional and void and rendered the whole act void. We pretermitted a decision of the question in that case, saying, "Here the salary of the treasurer is not involved, but, if it were, and if. the .portion of the act relating to the salary of the treasurer should be invalid, for the reason assigned in Gray v. Matheny (which we do not decide), the remainder of the act would be left complete without it." In' Gray v. Matheny, 66 Ark. 36, the court had• under consideration § 3 of the salary act fixing the sal- • ary of the treasurer of Independence County. Section 7 of that act provides as follows : "All money paid into . the treasury arising from said fees and commissions in Independence County, Arkansas, shall be covered into the general revenue fund of the county." Speaking of this section, in that case, we said: "He (the treasurer) receives fees or commissions on funds paid into the treasury derived from taxation. Section 11, art. 16, of the Constitution of Arkansas provides : * *, * 'and no moneys arising from a tax levied for one purpose shall be used for any other purpose.' Section 4 of the special act under consideration requires the officers to pay over in kind the funds received by them in excess of their salaries. We are of the opinion that § 7 of the act is. obnoxious to the , above provision of the Constitution; in so far as it requires the excess over the treasurer's salary of eight hundred dollars, to be covered into the general•revenue fund of the county. --The excess of funds the hands of the treasurer over his salary belongs to the county, and goes to the respective funds for .which thern tax was levied and collected. This provision, however, as it relates to the treasurer, may be stricken out, and the act be left complete without it." Section 17 of act 173, supra, now under consideration, is similar in language to and in legal, purport is precisely the same as, § 7 . of the act construed in Gray. v. Matheny, above. , Counsel for appellees' contend that the 'decision in Gray v. Matheny was wrong, and that it
442 COUNTY BOARD OF EDUCATION V. AUSTIN. [169 was unnecessary to hold in that case that § 7 of the act there under review was unconstitutional and void. Counsel are correct in saying that it was unnecessary to the decision of that case to hold that § 7 was unconstitutional. and void. We might have passed over a decision on the constitutionality of that section, the . same aS we did in the. recent :Case of State use of Lonoke Cowaty v. *Swaim, supra. HoWe y er, the language used by us in Gray v. Matheny, supra, was germane to the construction of the act, although not absolutely necessary to the decision. We cannot. concur, with learned counsel in .the view that the court's construction of section 7 in Gray. V. Matheny, • supra, was ;wrong. On the Contrary, we are .convinCed - that- the court's construction of § 7 in that case was entirely correct. Section 7 in that case and § 17 in the • case at bar are in palpable violation of § 11, article 16; and, also § 3, article 14, of the Constitution, as amended by 'Amendment No. 9 thereto. S• Section 17 is obnoxious to the above provisions of the ConstitutiOn because under it all the.fees; emoluments • and commissions earned in the collection and receipt of . hinds derived from taxation shall be paidinto the county general fund, whereas the commissions earned in the collection and receipt of taxes which have , been levied and collected for a .particular purpOse, when paid into the treasury under this law, should go to the credit of the particular fund, and be used for the particular purpose, for which the, taxes were levied and collected. Before the present law was passed the commissions allowed for the collection and handling. of school funds raised by taxation were Paid out of such funds. Indeed, they are a part Of.such funds. See §§ 4595 and 10071 of Crawford & Moses' Digest. The fund raised. by taxes not exceeding five mills on the dollar for all county pur, poses, or the "county general fund," is what its name imports—a fund raised to meet the expenses incident to county government—a county general fund, and is altogether a different fund from the school fund of the. connty. See § 9863 C. & M. Digest ; 15 C. J. p.. 583, §
ARK.] COUNTY BOARD OF 'EDUCATION V. AUSTIN. 443 284. The Legislature is wholly without pOWer to command that • ees, emoluments, and commiSsions, allowed for the collection and handling of school, funds by the county . officers,. be. tovered into:the county general fund. 24 R.- C. L. p. 592, §§ 45-48. See also Hartford v. West Hartford School Dist.; 102 Ark. 261; Cost v. Shenault, 113 Ark. 19; Dickinson v. Edinionson, 120 Ark. 80. Such fees, emoluments .and commissions,..when *paid into the treasury should go to -the credit -of the -school fund- to 'be used for school purposes and no other. Section 17 is unconstitutional becanse- it plainly authorize's a diversion Of the school funds into the county general . fund, -Where it tould be usedlor Other than school 'purposes. In the case of . bickinson v. Edmon, on, . supra, 'we 'quoted at page 89, from the Supreme . Court of Washing-ton in; School District . *NO . . 20 . of SPokane Coity Bryan, 51 Wash. 498; 'as folloWs : "To take' froth . the one and give -to the Other by indirect methods -that Which was designed for a special purpose would defeat the whole scheine of the . law, : and open a wa.S?', for the Ultimate tranSposition of funds held .under a Most 'sacred-trust. Courts' have been °zealous in proteCting the Money set apart 'for the . maintenance of the free-schools . of, the cOuntry. They have ;filmed a deaf ear to 'every enticement, and frowned upon every atteinpt; however.' Subtle, to evade the Constitution." The: above : language 'is etceedingly appdsite here. "ConstitUtional requirements .as to -the . preservation 'and inviolability of the', public school funds Must be observed bY State legiSlatnies, . their enactments* will' be invalid." 35 Tye. p'..! 826. Certainly the school funds should not be ; made tO.:b-dar More than -its just proPortion of -the 'salaries Of- the'cOllector and treasurer. This fund,' hOwever; should be:re-. quited to bear its just proportion of theSe salaries . -.'To so require would not the a diversion of such fund beca-use the school fund must be collected and pnid into the . frea'S--ury and must he handled and , disi bursecl after it , is covered into , the treasury.: So the act of. the . officers in .col.-
444 COUNTY BOARD OF EDUCATION v. AUSTIN. [169 lecting and handling the school fund is germane to the purpbse for which it is raised. Therefore, the county court, in determining the excess of commissions to 'be credited to the school fund, 'should apportion or prorate the amount . to be paid by the school fund toward the salaries of the collector and treasurer in the proportion that the total amount of the school fund collected and disbursed by these officers for one year bears to the total amount of all funds raised by taxation for that year ; that is, i by taxes for county, State, municipal, school, road and all general taxes, for these come within the purview of article 2, § 23 and article 14, § 3, and article 16, § 11 of the Constitution, 1874. In making the apportionment the court cannot take into consideration comnissions on funds collected or raised on special improvement district assessments, for these are not taxes .within the meaning of the provisions of the Constitution. Cribbs v. Benedict, 64 Ark. 555, and cases there cited at p. 562. It follows that § 17 of act 173, supra, is unconstitutional and void, in so far as it authorizes and directs commissions on s'chool funds earned and paid into the treasury to be covered into the county general fund. This part of the act may be stricken out without impairing the remainder of the act, because that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent. Cooley on Constitutional Limitations, §§ 246-248; Nixon v. Allen, 150 Ark. 244, and cases there cited. The chancery court has no jurisdiction primarily to apportion and distribute school funds in the county treasury: This jurisdiction is lodged by the Constitution and laws in •other agencies and tribunals. See chapter 158, C. & M. Digest. The chancery court does have jurisdiction, however, as we have stated, to prevent a diversion of school funds to other purposes. ' The trial court erred in dismissing the appellants' complaint for want of equity. It should have, instead,
ARK.] COUNTY BOARD OF EDUCATION V. AUSTIN. 445 granted the prayer of appellants' complaint and entered an order directing the treasurer to pass to the credit of the school funds all fees, emoluments and commissions allowed by law and earned by the collector in the col-Jection and by the treasurer in the receipt and handling of the school funds, after deducting the proportionate share of the salaries due such officers by the school funds under the rule of apportionment above indicated. The court should have entered an order restraining the treasurer from covering the funds derived from such source, , and as above ascertained, into the county general fund. The decree is therefore reversed, and the cause remanded for such further proceedings as may be necessary according to law.and not inconsistent with this opinion. MCCULLOCH, C. J., and SMITH, J., dissenting. • MCCULLOCH; C. 'J., (dissenting). I am unable' fo -bring myself in accord with the views Of the majority in holding that the requirement for the payment into .the county treasury; for the benefit of the general reN'Tenue fund, of the 'statutory fees 'for , collecting the School fund is' unconstitutional as a diversion of funds, within the prohibition. of § 11, art: 16, of the Constitution. • The general statutes of. the State provide for the 'payment to the tax 'collector and cOunty treasurer of commissions out of the school funds, aS well as other public -funds, for the Collection and 'handling . of taxes. Craw-ford & Moses' Digest, § § 4594, 10071: The validity *of those Sections has never been questioned, though .it,has always: been the practice 'under' those statutes for the school fund to share its, proportion of the expenses' of •Collecting and handling the funds. There is no reason why the school fund should : nOt bear those exPenses, the saine as any other fimd.. Now, -if those statutes Were valid at the time they were enacted, they' are not' affected by the- statute -fixing the salaries of officers in Lonoke County. If- the percentage of commissions prescribed b3:7- the statutes was reasonable 'at that time, it has not been rendered unreaSonable, so far as it relates to Lonoke
446 COUNTY BOARD OF EDUCATION V. Ausrix. [169 : County, by the subsequent Special statute providing for the officers, of that county to receive definite ;salaries to be paid out of the statutory commissionS turned in to the treasurer. The general statute conStitutes a legis-lafiVe determintion that ;the commissions ' preScrited therein are reasonable and just contributions from the various funds lowards the expenses of collecting and handling thOse funds. There are other : 'expenses to which the countY is subjected in the collection and handling of the taxes other than the commissionk of the collector and treastirer. Hence the provision . for putting the officers on' salarieS and turning the fees into the treaSury should be upheld as a determination that the original ! cominissions preseribed bY the general statutes are reasonable, and that they should be exacted 'to cover ,the whole expenses ;incurred by the county in paying ,salaries ,and other things in the collection and handling ,of, the,taxes.. ; Absolute accuracy in adjusting the burdens of , the expense of collecting and handling public funds is scarcely attainable, hence the determination of the l l aw-,rnakers- should not be disturbed in making those . adjustments. The 6onstitutiona1 restriction that "no moneys received from a tax levied" for one .purpose ; shall be used ' for any other purpose" (art: 16, § 11) was not intended to -hamper the LegiSlature in prescribing, the means 'wher'eljy the public funds should be , collected and handled. The : general statutes prescribing- the ComMissions Lonoke County, which, under the special Statutes iw_operation in Lonoke County, are paid into . the general revenue funds, do not 'constitute a diversion of funds within ,the meaning of the constitutibnal jirovisionjust referred to, for,, as we have already; semi, this is merely a 'method :providing for the payment' of expenses of Collecting and ;handling the funds. The fact that the amount of commissions thus Separated from the 'funds may be in excess '.of the SalarieS of the .officers does not put the provision; 'in conflict with the constitutional inhibition against using
ARK.] COUNTY BOARD OF EDUCATION V. AUSTIN. 447 funds,for one purpose whith arises from taxes levied for., another purpose. • The . Majority rely uPon the opinion of thiS contt-in Gray v. Matheny, 66 Ark. • 36 . , but I Think that all 'that was 'said in'the opinien dri the suhi&ct is clearbj and is not bihdihg upon US except to the extent Of.'itS persuasiveness'; There were . tWo , of those' cases on thiS.- suibject . deCided on the 'same da3 sr, Independence :County' v. Young, 66 Ark. 30, and Gray v.. N'atheity, sUpra. the first case involved the validity ot the Statute . fixing the salary -.of .the couhty clerk of Independence . 0ounty, and the other inVolved the .yalid4 Of the same statirte .fiXing the salary of the county . treasiner of that ,cohntY..In bah easeS it was contended that' the ' statuie fixed' the'. salaries of those twO officers so to-W that it RractiCally: abOlished ihe offices, and tliat, for that . reas0 , it , Was'un-constitutionai. • This court refused to accept ,that. and held that the aet was valid. 'The statute Contained a provision similar to the one now . before US to the effect that the fees provided under general statutes should be collected and turned into the treasurer, and the salaries paid out of the funds thus raised; and in Gray v. Matheny it was decided that that portion of tbe statute which fixed the salary of the treasurer was separable from the other parts of the statute and was valid, even though another part was invalid. It was therefore unhecesSary for the court to decide whether the part . of the statute disposing of the surplus fees Was valid or not.. That case related - to a controversy between the county and the Areasui-er concernihg the amount of his fees, and the 4nestion' i of misappropriation of school funds was in no wiSeinVoly,ed. I .think that the dictum in. Gray v. Matheny was erroneous, and I am unwilling to follow it, but, in the present case, I believe that the statute is valid. I am 'further . of the opinion that, if the statitte is'invalid, to the "p3C-tent indiedted in the niajority opihion,. the aPpOrtiOn-meht of 'the expenses should, in' accordance with the contention of appellant, be made upon the. , basis ;ofriail
commissions collected from all sources, including provement taxes as well as all other funds. If the .Legisla, ture has the iclower to provide for the payment: out of, any funds collected, including improvement . district taxes,.: of the expenses of collecting and handling those funds, then all the funds collected should be taken into consideration in apportioning the expenses.. I fail to see any reason why improvement taxe's should be exclu a . ea rom that consideration, if the. Legislature has the power to provide 'for the payment of the collector 's .. 4es , out of those funds when collected. It is irne that aSSesSments in local improveinent districts are' not 'taxes:within the" meaning of the Constitution, Ibut that affOr4s no . reason why the conimission on'the collection thereof .shOnid nOt be conSidered in the l aPportionMent of the expenSeS ainong the various funds collected. In, other Words, there is no distinction as to the character of funds, so far as concerns the basis of the apportiontnent: SMITH, J., Concurs.
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.