Bourland v. Pollock

249 S.W. 360, 157 Ark. 538, 1923 Ark. LEXIS 212

• Court: Supreme Court of Arkansas
• Decided: March 19, 1923
• Status: Published

Opinions

Wood, J.

The Port Smith Federated Welfare Association (hereafter called welfare association) is a voluntary unincorporated organization, assembly, or committee, composed of the mayor of the city of Port Smith, commissioner No. 1 of Fort Smith (the commissioner in charge of public health, and safety), the county judge of Sebastian County, the pauper commissioner of the Fort Smith District of Sebastian County, the juvenile officer of the Fort Smith District of Sebastian County, and representatives of various civic and social clubs, organizations and associations in the city of Fort Smith, which have as one of their objects the promotion of benevolences in that city.

The purposes of the “welfare association” are as follows: “To cause afflicted and diseased children to receive medical attention, to maintain a maternity ward for expectant mothers unable to have sanitary and proper surroundings for their ordeal, to care for babies whose parents are unable to care for them, to furnish food and clothing for those unable to buy the sapie, and free soup for families unable to buy nourishing food, and to provide moral surroundings for gilds without homes.”

There is held annually in the city of Fort Smith a mass meeting, pursuant to notice, of people interested in the sick and afflicted of the town. At that meeting two members are elected and representatives are chosen from the various civic and social clubs, associations and organizations above mentioned, and these, with the mayor and commissioner No. 1 of the city of Fort Smith and the county judge of Sebastian County, the pauper commissioner of the Fort Smith District of Sebastian County, and the juvenile officer of the Fort Smith District, constitute the “welfare association” or committee for the ensuing year. One of the members of the welfare association is designated as the president and-another is designated as treasurer thereof. The members thus chosen are designated the “welfare association,” but it is not in reality an association; institution, or corporation, but a mere committee of officers and charitably disposed citizens who undertake to effectuate the purposes of the welfare association as above set forth. The committee maintains a day nursery to care for babies who have no mothers, or whose mothers are unable to care for them; maintains a maternity ward, and has established a free clinic. The medical association appoints members to serve weekly at such clinic without compensation, and there are brought to the clinic, through visiting committees consisting of men and women appointed by the welfare association, afflicted children for examination and treatment, for various dental work, vaccination, etc. The welfare association maintains a building to which matrons at depots and other persons carry homeless girls and place them there, under moral surroundings and restraints calculated to deter them from waywardness and immorality. The welfare association furnishes food and raiment to the indigent of the city who are in need thereof.

This action was brought by the appellants as the board of commissioners of the city of Fort Smith against the appellee in his individual capacity and as treasurer of the welfare association. The complaint alleges that the appellee, as treasurer of the welfare association, receives and disposes of all funds thereof; that the board of commissioners of the city of Fort Smith passed an ordinance appropriating to the welfare association the sum of $125 per month; that the city clerk, acting under the authority of the above ordinance, drew a check upon the'general funds of the city for the month of November, 1922, in the sum of $125; that the ordinance appropriating the money for the purposes indicated is unconstitutional and void; that the check is negotiable and an outstanding evidence of indebtedness against the general funds of the city of Fort Smith. They allege that the appellee, unless restrained, will cash the check and thereby deprive the city^- of Fort Smith of the funds in which it is legally entitled; that the city has no sufficient or adequate remedy at law to prevent the collection oF such funds by the arm el lee, and thev therefore anv that he' be enjoined from cashing the check and be directed to return the same to the proper authorities of the city.

The treasurer of the appellee answered, setting up the organization and purposes of the welfare association as above set forth, admitting that he held the check as alleged in the complaint, and alleged that he was entitled to have the same paid out of the general funds of the city, and, unless restrained and enjoined, he will proceed to collect and expend the same under the auspices of the welfare association. He denied that the ordinance'of the city, under the authority of which the check was drawn, is unconstitutional and void. He alleged that the appropriation of the money for the purposes indicated was not a loaning of the credit of the city to any corporation, association, institution, or individual, but the money was appropriated and about to be expended in the preservation of the health and to promote the prosperity and improve the morals, comfort and convenience of the inhabitants of the city in behalf oh the sick and afflicted children, and the other benevolent and charitable purposes for which the welfare association, as above indicated, was constituted. The answer then set? up the manner in which the welfare association was constituted and its purposes, as already stated, and specifically enumerates the various charities it has conserved, in accordance with the purposes of the welfare association, and specifically states the amount of funds it had paid out for such charities.

There was a demurrer to the answer. The court heard the cause upon the complaint, the answer thereto, and the demurrer, and the testimony of one D. C. Green, who was the president of the welfare association. The testimony of Green shows that the work of the welfare association was materially aiding the health of the children of the city, especially through the free clinic and the nourishing food given those otherwise unable to receive the same; that it had improved the morals of the town in giving care and attention to wayward girls, and had relieved much suffering among people unable to care for themselves and who were not sufficiently fed and clothed.

The court overruled the demurrer to the answer and entered a decree dismissing the complaint for want of equity. From that decree is this appeal.

Section 5, article 12, of the Constitution of 1874 is as follows: “No county, city, town, or other municipal cor poration shall become a stockholder in any company, association or corporation, or obtain or appropriate money for or loan its credit to any corporation, association, institution or individual.” The question for decision is whether or not the ordinance appropriating money to the Fort Smith Federated Welfare Association, as set up in the pleadings, is contrary to the above provision of the Constitution. The complaint alleges that the welfare association is “a benevolent organization organized for the purpose of rendering aid to the poor and unfortunate of the city” (Fort Smith).' The answer alleged, and the demurrer admits, and the proof shows, that the welfare association “is not an association, institution, or corporation, but it is a mere committee of officers and charitably disposed citizens who undertake to carry on the work above mentioned in behalf of the sick and afflicted children, wayward girls, and worthy or indigent families who are undernourished and poorly clothed and fed.”

It will be observed therefore that the so-called “welfare association” does not in fact come within the inhibitory words of the Constitution. It is not a “corporation, association, institution, or individual,” but a committee formed in the manner alleged in the answer and shown by the proof, to effectuate the benevolent and moral purposes designated, all for the preservation of the health, the promotion of the prosperity, and the improvement of the morals of the inhabitants of the city of Fort Smith. The commendable objects for which this committee was organized come well within the general welfare clause of our statute which confers upon municipal corporations “power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the .safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof.” Sec. 7494, C. & M. Digest. Judge Cooley says: “The support of paupers and the giving of assistance to those who, by reason of age, infirmity, or disability, are likely to become such, is, by the practice and common consent of civilized countries, a public purpose. The laws not only exempt from taxation the limited means of such persons, but they go further and provide public, funds with which to furnish them retreats where they can be supplied with the necessaries, and, to a reasonable extent, with the comforts of life. Hospitals are also provided where dependent classes can receive medical aid and assistance, and asylums where the deaf, the dumb, and the blind may be supported and taught, and where the insane may be kept from doing or receiving harm, and can have such careful and scientific treatment, with a view to their restoration, as they would not be likely to receive elsewhere. He would be a bold man who, in these days, should question the public right to make provisions for these benevolent objects. And this provision might not only be made by the establishment of institutions for the purpose, but private institutions. might undoubtedly be aided with public funds, in consideration of services to be rendered to the public, and expenses to be incurred by them in assisting and relieving the same necessitous and dependent classes.” Cooley on Taxation, pp. 204-5.

Under the specific enumeration of powers conferred by statute upon municipal corporations contained in § 7529 of Crawford & Moses’ Digest, the power to construct and maintain city hospitals is not mentioned, yet this court, in the recent case of Cumnock v. Little Rock, 154 Ark. 471, held that municipal corporations had such power, under the general welfare clause, to preserve the health and promote the comfort and convenience of the inhabitants of the city. If the building of a city hospital is within the implied powers granted to municipal corporations under the general welfare clause to preserve the health of the inhabitants of the city, then surely the benevolent purposes which the welfare association was organized to perform, and is performing, in the city of Fort Smith come also well within the compass of these powers. For there are no more worthy or higher objects of government to he attained than those of making suitable provision for the care and maintenance of those of the city’s inhabitants who, through unavoidable casualty and misfortune, have become indigent and sick, and who are therefore wholly unable to care for themselves. This includes not only the aged and infirm, but orphans, or babies and poor dependent children whose parents are unable to care for them. In short, it would be difficult to imagine or state a more deserving public purpose or one coming-more within the compass of the true functions of municipal government, than the benevolent objects set forth in the answer and shown by the proof in this record which the welfare association has sponsored and is successfully performing for the inhabitants of the city of Fort Smith.

The question then recurs, is there anvthing in the above provisions of the Constitution prohibiting the city government of the city of Fort Smith from passing an ordinance appropriating money out of the general funds in its treasury to aid the welfare association in carrying out the laudable work which it is doing? In Jonesboro v. Montague, 143 Ark. 13, we said: “"When the powers to be performed by the governing bodv of municipal corporations are of a ministerial, administrative, or executive nature, they may delegate the power to a committee. The business of municipal corporations, 'like other corporations, must be conducted through agents. To segregate a municipal corporation from all other corporations in the methods employed in the transaction of business would prove highly detrimental to all concerned, and if it could not act upon any matter properly before it which also affected the rights of its officers, few competent persons could be induced to accept such offices.” That piinciple applies here. In contributing of its funds to this welfare association or committee to carry on governmental work which otherwise the city would have to perform, or at least should perform through some other agency, it in effect but adopts this welfare association as its own agency to do the character of governmental work which manifestly the city authorities conceived could be better, or at least as well, done as, through some instrumentality which was exclusively- of .its own creation and over which it had suprepae control.

It will be observed that the Welfare Association had in its membership a majority of the commissioners charged with the city government of the city of Fort Smith. Thus the city, through its officers as members of the welfare association, does have a large voice in the distribution of the fund contributed by it to the benevolences mentioned. It occurs to us that the fact that private individuals and civic clubs and organizations also contributed to a fund which is used to accomplish the same objects does not make the contribution by the city any the less a contribution toward the legitimate purpose of promoting the general welfare of its inhabitants, and thus performing a governmental function.

Any one at all familiar with the history of -the times and the conditions and environment of our State Government when the Constitution of 1874 was framed will ^know that the wise men who laid the various provisions of our organic law, among them the section above quoted, did not have in mind the prevention of municipal aid to committees, or other ^¿asi-municipal governmental agencies to carry out the purposes of municipal government. The Constitution of 1874 was framed in convention as the organic law of the State of Arkansas hv representatives chosen by the people just after they had been disenthralled from a government which had been foisted upon them by acts of Congress during the period known as the Reconstruction Era, and which government, out of popular derision and contempt for those then in authority, was designated as “the carpetbag government,” because it was dominated for the most part by foreign political adventurers and freebooters who came among us for no other purpose than to exploit the resources of our people for their private gain. During this period the people of the State at large and of many of the counties and municipalities were burdened with oppressive exactions of taxation laid for the purpose of paying bond issues and guarantees of bond issues, of public and g"«<m-public corporations, granted ostensibly in aid of railroad and levee building and other such projects, but which projects in reality were never consummated, and from which the people themselves received no benefit whatever. In other words, there was a saturnalia of bond issues given to companies, associations, corporations, institutions, and individuals, which were conceived, planned, and carried out by those then having the reins of government, not for the public good, but for the private loot and enrichment of those in governmental control. Section 5, article 12, of the Constitution, supra, was intended to forever forestall and prohibit a recurrence of such conditions. It was with this in view that municipal corporations were prohibited from appropriating money or lending their credit to corporations, associations, institutions', or individuals who were either organized for or engaged in purely private enterprises, or who, if organized for or engaged in a public enterprise, or guasi-public enterprise, might exploit or use the public funds or resources of the State’s governmental agencies for private gain. It was never the design of the builders of the framework of our government to prohibit ihunicipalities from carrying on governmental functions of the character indicated in this record through any agency which they might select for those purposes. It must be remembered that the intent of the framers of the Constitution, gathered from both the letter and spirit of the instrument, construed in the light of the history of events which gave it birth, is the law. Martin v. State, 60 Ark. 343-348.

As we have shown, the welfare association does not come within the letter of the constitutional inhibition, nor does it come within its spirit. Following the trend of thought expressed by Judge Cooley, supra, and the doctrine in harmony therewith declared in Cumnock .v. Little Rock, supra, we now hold that the work of the welfare association, as set forth in this record, was well within the sphere of the municipal government of the city of Fort Smith, and that section 5, article 12, supra, of the Constitution, should be construed as if such governmental purposes were expressly authorized by it. An illuminating authority in support of the conclusion thus arrived at is that of Shepherd’s Fold v. Mayor, etc., of New York, 96 N. Y. 137. See also Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 657-669; McLean County v. Humphreys, 104 Ill. 387, where it is declared, “it is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for tbe comfort and wellbeing of such of its citizens as, by reason of infancy, defective understanding, or ' other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise,” the above doctrine. A’majority of us unqualifiedly approve.

It is argued in the brief of counsel for the appellants that, inasmuch as statutes of the State which apply to the area over which the city of Fort Smith has jurisdiction, and the general statutes of the State, adequately provide ways and means for doing the work of the welfare association other than through the instrumentality of such welfare association, therefore the ordinance under review is invalid because it undertakes to do or to aid in doing the same work through the agency of such association or committee. This argument is manifestly unsound. Because the county, as a governmental agency, may do a part of the same work under general statutes, or the city may do all, or a part of the same work in other or different ways, or through different agencies, is no reason why the city may not adopt the welfare association as the most economical and efficient instrumentality that could be adopted for accomplishing the purposes of municipal government as set forth in this record and authorized by the general welfare clause (§ 7494, C. & M. Digest) of our statute relating to municipalities. These powers and instrumentalities are not in conflict, but are concurrent and auxiliary. See, by analogy, Brizzolara v. State, 37 Ark. 369; DeWitt v. LaCotts, 76 Ark. 250; Brooke v. State, 86 Ark. 364.

It follows that the decree of the chancery court of Sebastian County is in all things correct, and the same is therefore affirmed.