562 ARKANSAS POWER' &- LIGHT CO. 'V. CURLIN. [187 • ARKANSAS POWER :8i • LIGHT COMPANY v. CURLIN. ; 4-3119 . Opinion deliVered June 12, 1933. SCHOOLS AND SCHtiOL DISIMICTS-APPROPRIATION OF scaom TAX.- I: CrawfOid & Moies' Dig., § 10,045, requiring the tax collector to receive school diktrict warrants in payment of the district's school . tax, was impliedly repealed by Amendment No. 11 to the Consti-, tution . providing that no school tax should be appropriated, fur any purpose or to any other .district ihan that for which it had been levied. " Appeal from Crittenden Circuit Court • G. E. Keck Judge; affirmed. . sTATEM.pril. BY THE COURT. - - Appellant, Arkansas Power. & Light Company, owns school:warrants of the Earle Special School District of Cri . ttend . en .County, -aggregating $868.72 and tendered same to the collector, J. H. Curlin, of Crittenden County to apply on its school takes due Earle Special School pistrict for the year 1932. , At, the time of the tender appellants, owed ; . the school district school - taxes in a sum in f excess of -the amount of, the tendered warrants.
ARK.] ARKANSAS POWER & LIGHT CO. .1). CURLIN'. 563 All the warrants tendered had been properly 'registered by the treasurer of Crittenden County. Curlin, ars collector, refused to accept the warrants in payment of the school district ' takps; and this suit was inStituted.by' appellant in the Crittenden County 'Circuit Court against the collector praying mandathus. The treasurer refused to pay the warrants because he . had no money with which to Pay. as 'Collector, And Eixon, as treasurer; filed a demurrer to the complaint setting forth that it did not state sufficient facts to constitute a cause . of action: One Luther Wallin . intervened in said cause and jOined with the collector and treasurer in " the' demurrer., The circuit court snstairied . the demurrer to 'the cOmplaint and refused the 'writ of Mandamus, ankthis 'appeal is prosecuted to reverse this judginent. • ".. S. V. Neely,' for appellant: A. B. Shafer and R. V. Wheeler, for apPellee. JOHNSON, C. J., (atter stating the facts). „ The sole question preiented on this appeal for determination is, will mandamus, lie to com . pel a collector to accept school, district warrants in . , payment , of past-due district,sChOol: tax dile to the district issuing the warrants1 Appellant insists that it Will, 4 0,appellees deny the pght. _ .SeOion )_0,045 of drawford..& .Moses' Digest reads as follows • : `.`, The :collector. ,co.unty.i war-, rants iy payment of ; county taxes, the orders or,warrants. that Inay.be payable on presentation ,of any town,. city oy school ,district for their respective ,taxes,, and the state treasurer's certificate of indebtedness, of date not- prior, to July 23, 1868, .for State taxes; levied, to,,detray the general expenses, : of the State. Provided, ,this , section shall not be , so , construed, as to compel : the . acceptance of any order or warrant that by . tlie laws of, this . State was required to be funded." Appellant insists that this section affotds the authority. Appellees insist that §.10,045 . .of .Crawford & Moses' DigeSt was . impliedly.: repealed. 'by amendment No. 11 tO the Constitution of 1874 adopted in1927,.wherein it was provided:
564 A:RTCANSAS POWER . &-Tinarr Co. -v. Cu IMIN. [187 " The General Assembly shall provide by the general laws for the support: of 'common schools by taxes, which shall never exceed in any one year three mills on the dollar on the taxable property in _the State, and by au. annual per capita tax of one dollar, to _be assessed on every male inhabitant of this Siate_ over the age of twenty-one years. Provided, that the General Assembly may, .by general law, authorize school districts to levy by a vote of the, qualified electors of such districts a tax not to exceed 18 mills. on the dollar in any one year for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any other district -than that for which it is levied." This court in construing Amendment No., 11, in the case of Horne v. Paragould Special School Dist. No. 1, 186 Ark. 1000, 57 5. W. (2d) 568, held : "The_ electors of any school district may vote a tax at any rate they wish fOr any or all said purposes, proVided the tax Voted for all- dOes nOt exceed 18 Mills. For inStance, they- might vote 6 'mills . for bond and_ 12 mills* for school purposes; AS they did in this. case, - and,- When so levied'and collected, neither stun could 'be appropriated for an'y other purpose ' than that for whicha is levied.' In other Words . , the 12 mills VOted : for school purposes COuld not lawfullY be appropriated for payment Of bondS or the interest' thereon, nor could the 6 mills voted for bond purposes be appropriated for' schools.. Such ig the plain language of the amendment. No other constrUction can be given, and any other in the .present ease would probably work disaster tO both parties. For, since the . Votink 'Of any tax for any purpOse is Optional with the 'district's electors, the taking of the 12 mills voted for general school purposes to pay bonds'would close the schools and keep them closed for many years, it would seem reasonably certain the electors would not vote a tax on themselves and have no schools. The bondhold-ers would lose the 6 'mill .tax now being received, a substantial loss to them, and the district Would_be without
a free public, school for-years to ccime, which would be disastrouS to it and its people." . .Since, , under the amendment, • the voteys of . a school district may or. may not 'vote a tax; since the voters of such district may . appropriate any part of the levy which they . may. desire to either . of three purposes set forth in the amendment, and since : the Legislature and the courts:have no -power or control over such appropriations so made by,the voters; : it necessarily follows that §..10,04 of . Qrawford & Moses' Digest was impliedly repealed by the; amendment. This, heeauSe, if appellant .can :coerce. tbc . coflector to-,aecept the warrants .in payment of past: due taxes, it would nullify and destroy the constitutional mandate giying to the voters the Jight to make appro: priation of the tax-levy. . .• . It is insisted , in this . case that no apPropriation of the tax levy was made by the voterS, therefore manda-mus- in the instant case : would not nullify or destroy the right of the , voters. ,to appropriate. This argument is beside the , question.. If in any event :the statute con— flicts with the . constitutional mandate, the Constitution must *prevail... This 'is perfectly evident becauSe, had the voters, made the aPproririationS as .thOr had the right to do, , and should- Mandamus issue- to give effeetiveneSs. to 10,045; 'Crawford & Moses' Digest, it would destroy and nullify the Constitutional inandate. Judkment affirmed. SMITH and 1\1611ANEY,
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