McDonald v. Bowen

468 S.W.2d 765, 250 Ark. 1049, 1971 Ark. LEXIS 1371

• Court: Supreme Court of Arkansas
• Decided: June 28, 1971
• Docket: 5-5643
• Status: Published

Opinions

George Rose Smith, Justice.

The city of Little Rock, with some aid from a group of private citizens, proposes to submit for approval at a special election a $9,500,000 bond issue under the authority of Constitutional Amendment No. 18 and its implementing statute, Act 206 of 1963, compiled as Ark. Stat. Ann., Title 19, Ch. 31 (Repl. 1968). This is a taxpayer’s suit brought by the appellant to enjoin the city directors from proceeding with the election and to obtain a declaratory judgment holding the implementing act to be unconstitutional and declaring some or all of the purposes of the bond issue to be beyond the proper scope of' Amendment 18. After a hearing at which a number of witnesses testified the chancellor entered a decree declaring the city’s proposal to be valid in every particular. The taxpayer’s complaint was accordingly dismissed for want of equity. Upon this appeal the taxpayer argues five points for reversal, which must be discussed separately.

I. As a precautionary argument, the appellant first states that his appeal should not be dismissed for lack of a justiciable issue. We agree with his position. If the contemplated election is in fact illegal, as the appellant contends, the expense of holding it would constitute an illegal exaction for which the constitution provides a remedy by injunction. Townes v. McCollum, 221 Ark. 920, 256 S. W. 2d 716 (1953). Moreover, a declaratory judgment is especially appropriate in disputes between private citizens and public officials about the meaning of the constitution or of statutes. Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851 (1955).

II. The appellant contends that the first paragraph of Amendment 18 contemplates a five-mill tax to be voted annually and does not authorize a continuing levy to support a bond issue. We find no merit in that contention. The Amendment provides that the tax may be levied “for the period that may be provided by law.” The implementing act authorizes a continuing tax levy to support a bond issue maturing serially over a period of not more than 35 years. Ark. Stat. Ann. §§ 19-3106 and -3107. In a substantially similar situation, where the constitution provided for an annual twelve-mill school tax, we held that the legislature could authorize the electorate to approve a continuing levy to support a long-term bond issue. Woodruff v. Rural Special Sch. Dist. No. 74, 170 Ark. 383, 279 S. W. 1037 (1926). We see no material difference between that case and this one.

III. The most serious question in the case is whether Amendment 18 authorized the city to utilize the five-mill tax levy to support a bond issue as a means of financing the nine separate proposals that are set forth in the petition for the special election. (The petition contains a tenth catch-all proposal, but counsel for the appellees conceded at the oral argument that the language is too broad and vague to justify judicial sanction of the expenditure of funds under that clause of the petition.)

Amendment 18 was clearly designed to enable cities of the first class in counties having a population of at least 105,000 to levy a five-mill property tax for the purpose of attracting industries. The Amendment begins with these words: “It being most apparent that factories, industries and transportation facilities are necessary for the development of a community and for the welfare of its inhabitants, a special tax not exceeding five mills on the dollar of all taxable property . . . may be levied ...” The rest of the Amendment goes on to specify how and by whom the proceeds of the tax levy are to be spent.

The third paragraph of the Amendment enumerates five purposes for which the tax money may be used. We are quoting that paragraph verbatim, except that for convenience of discussion we have divided it into subparagraphs and have inserted parenthetical numbers for the several enumerated purposes:

"The proceeds of such tax may be expended as may be provided by law

(1) for the purpose of securing the location of factories, industries, river transportation and facilities therefor within and adjacent to such cities or

(2) other public purposes, exclusive of charities and those now within the powers of said cities to perform,

and the expenditures may also be made for

(3) advertising such cities and the State, or

(4) making secured loans to such factories and industries, or

(5) for any other public purpose that may be provided by law, connected with securing the location of such factories and industries and encouraging them.”

We have no hesitancy in holding that five of the purposes enumerated in the petition for the special election are set forth in such general language that we cannot properly declare that those purposes fall within the scope of Amendment 18. We quote the language of the petition with respect to those five proposals:

2. To improve by reconstructing and paving certain streets and to construct certain streets, including, where necessary, acquisition of rights of way, widening, curbing, overpasses, underpasses, bridges and draining appurtenances.

3. To construct or reconstruct certain storm drainage facilities, including, where necessary, acquisition of rights of way and appurtenances.

4. To construct, reconstruct, equip or re-equip certain fire stations.

# # # #

7. To acquire, construct, establish, develop and improve facilities for the off-street parking of vehicles and any facilities or improvements necessary or desirable in connection with the utilization and operation thereof.

* * * *

9. To acquire, construct, establish, develop and improve parks and recreational facilities, indoor and outdoor, and facilities necessary or desirable in connection with the utilization and operation thereof.

It will be noted that none of the foregoing purposes are defined in such a way as to limit the expenditures to projects, such as streets, having a direct connection with the factories, industries, etc., that are the primary subject of the Amendment. See, by way of contrast, Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68 (1959), where Amendment 49 was held to authorize the construction of a road leading to a $35,000,000 industrial plant.

Here the appellees introduced witnesses who testified in general terms that business men and corporations are apt to be favorably impressed, in seeking a location for a new plant or the like, by a city which has well-paved streets, adequate storm drainage facilities, sufficient fire stations, and so on. The fact remains, however, that nothing in the petition requires any direct connection between the proposed capital improvements and the new industries. It would be entirely permissible for the city to spend all or any part of the bond proceeds for the improvement of streets in residential areas or for other improvements having only a remote bearing upon the attraction of new industries. That authority, however, already existed and certainly was not the reason for the adoption of Amendment 18, with its attendant tax levy.

Nor do we think the scope of the Amendment to be indefinitely broadened by what we have numbered as its second purpose: “[Ojther public purposes, exclusive of charities and those now within the powers of said cities to perform.” We are unwilling to lift the words, “other public purposes,” from their context and take them to mean absolutely any conceivable public purpose, regardless of its connection with the rest of the Amendment. In Words and Phrases there are listed some fifty public purposes that might appropriately be accomplished by the use of municipal funds. McQuillin points out that the term “public purpose” is so broad that the courts as a rule have not attempted a judicial definition of it. McQuillin, Municipal Corporations, § 10.31 (3d ed., 1966).

In holding that the phrase, “other public purposes,” was not an open-end authorization of unlimited scope, we are influenced by two principles of interpretation. First, the rule of construction known as noscitur a sociis (It is known from its associates) requires that general language be construed to be comparable to the specific language of its context. Altus Cooperative Winery v. Morley, 218 Ark. 492, 237 S. W. 2d 481 (1951). Here every other clause in the Amendment has to do with the attraction of new industry. In that context the reference to other public purposes may fairly be taken to mean those of the same nature as the enumerated ones, even though not specifically set forth.

Secondly, the rules of statutory construction also apply to the interpretation of constitutional amendments. Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176 (1941). Hence, in cases of ambiguity, it is proper to refer to the title of such an amendment as an aid to its interpretation. Haile v. Foote, 90 Idaho 261, 409 P. 2d 409 (1965); State ex rel. Getchell v. O’Connor, 81 Minn. 79, 83 N. W. 498 (1900); Rathjen v. Reorganized Sch. Dist. R-11, 365 Mo. 518, 284 S. W. 2d 516 (1955). The title of Amendment 18, which was all that the voters saw upon their ballots in voting for that initiated measure, read as follows:

To authorize the voters to vote a special tax in the cities of the first class located in counties now or hereafter having not less than one hundred and five thousand population to secure the location and encourage the operation of factories, industries, river transportation and facilities therefor within and adjacent to such cities. [Acts of Arkansas, 1929, p. 1526.]

Under our Initiative and Referendum Amendment the ballot title must contain a fair statement of the scope and import of the proposed measure. Westbrook v. McDonald, 184 Ark. 740, 44 S. W. 2d 331 (1931). Since the title to Amendment 18 gave the voters no hint that taxes might be levied under the measure for purposes other than those stated, we are confirmed in our conclusion that no such sweeping construction of the Amendment should be adopted.

We are of the opinion, however, that the other four purposes enumerated in the petition now before us fall fairly within the scope of Amendment 18. One is the construction of a convention center, which is shown to be not only a means of advertising the city but also a facility having a direct connecdon with the specific purpose of attracting new industries. Two of the purposes have to do with river transportation, barge terminals, railroad terminals and facilities, and similar improvements falling fairly within the purview of the Amendment. The ninth purpose: “To provide capital for a nonprofit small business investment company to aid in the financing of industries when such financing is not available from private sources,” appears to be an appropriate means of achieving what we have numbered as the fourth express aim of the Amendment, the making of secured loans to new factories and industries.

IV. Amendment 18 provides that the proceeds of the tax levy are to be expended by a board of three commissioners. One of the commissioners is to be selected by a majority of the judges of this court, a second by a majority of the circuit, county, and chancery courts in the county, sitting as a board, and the third by a majority of the banks and trust companies located in the city. It is quite apparent that the three commissioners were to be carefully selected and were to have positions of responsibility and authority in the expenditure of the funds collected under the Amendment. We must therefore hold that section 5 of the. implementing act, Ark. Stat. Ann. § 19-3105, is unconstitutional to the extent that it attempts to strip the board of commissioners of all the authority vested in them by the Amendment, to reduce them to mere puppets having no duties except to receive the tax proceeds from the county treasurer and deposit them in a bank account, and to vest all the powers of the commissioners in the governing body of the city. The conflict between the act and the Amendment is so direct that the two cannot possibly be reconciled. In such a situation the provisions of the constitution are of course controlling.

V. Finally, the Amendment provides that the petition for the special election must be signed by “ten per cent of the owners of real property in such city.” Neither the constitution nor the implementing act attempts to say how the necessary ten per cent is to be determined, as, for example, by number, by the area of the property, or by its assessed value. The city proposes to solve the problem by accepting a petition signed by the owners of property having at least ten per cent of the total assessed value of the real property within the city.

We do not think that the proposed procedure conforms to the intent of the Amendment. Ten per cent of the owners by assessed value might enable a comparatively small group of wealthy persons or corporations to call the election. But the Amendment says “ten per cent of the owners of real property,” not the owners of ten per cent of the real property. We think the plain language of the Amendment means ten per cent in number of the total real property owners within the city. In that way the small property owner, whose taxes are just as burdensome to him as those paid by a large corporation are to it, has a real voice in the calling of the election.

In conclusion, we should add that we have not overlooked an amicus curiae brief filed by certain members of the Jefferson county bar. We are told that Jefferson county or the city of Pine Bluff wishes to construct a convention center, but the county does not have sufficient population to bring it within the provisions of Amendment 18, We are asked to decide instead whether the county or city may construct such a center under the provisions of an entirely different part of the constitution; namely, Amendment 49.

We must decline that invitation. There does not appear to be any case pending in Jefferson county or elsewhere involving the question now posed. Certainly there is in this court no record of any such case. Consequently we are being asked to render a purely advisory opinion upon an academic question, which we have consistently refused to do. Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80 (1949).

The decree of the chancery court is affirmed in part and reversed in part and the cause remanded for the entry of a declaratory decree consistent with this opinion.

Fogleman, J., concurs in part and dissents in part.