Webb v. Adams

23 S.W.2d 617, 180 Ark. 713, 1929 Ark. LEXIS 372

• Court: Supreme Court of Arkansas
• Decided: December 23, 1929
• Status: Published

Opinions

STATEMENT BY THE COURT.

Appellee, a citizen and taxpayer of Pike County, brought this suit challenging the validity, as unconstitutional, of act 149 of the General Assembly of Arkansas, approved March 15, 1929, entitled "An act to provide for an optional county unit or a consolidated school system for the several counties of the State of Arkansas, by popular vote of the people."

It was alleged that its provisions were in conflict with the Constitution in several respects, and especially that it was by its terms, (14 of act 149, "the provisions of this act shall in no way apply to or affect Gosnell Special School District, in Mississippi County, Arkansas; provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties"), a local or special act, violative of the Constitutional Amendment No. 17 prohibiting the General Assembly from passing any local or special act.

Appellant demurred to the complaint, and, the demurrer being overruled, declined to plead further, and the court declared the act unconstitutional and void, and enjoined the board of education from undertaking to carry out its provisions, and from this decree the appeal is prosecuted. (after stating the facts). The act appears, from its title indicating the purpose and its terms, to be general, providing for an optional county unit or a consolidated school system for the State, operating equally and uniformly throughout the State, but for the proviso or exception in 14 reading: "The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi County, Arkansas. Provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties."

Amendment No. 17 reads: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts." The language of the amendment is plain and unambiguous, and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the Constitution on the legislative power relative to the passage of local or special legislation, leaving its exercise to the discretion of the Legislature, had been so disregarded and abused as to create an intolerable condition. Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the State were excepted, and this amendment was adopted to remedy the evil, and the power of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special act. The effect of excepting from the provisions and operation of the act the Gosnell Special School District and the counties of Faulkner and Sharp was to leave the law applicable only to the remainder of the State not so excepted and the law as to the excepted territory unchanged, as though act 149 of 1929 had not been enacted. Casey v. Douglass, 173 Ark. 641,296 S.W. 705.

If two counties and a special school district can be excepted from the provisions of a law otherwise general and operative equally and uniformly throughout the whole State, there would be no reason to say that twenty-five or fifty counties or seventy-four of the seventy-five counties of the State could not be so excepted, leaving its application as a general law to but one county, abrogating by legislative determination and judicial construction the Constitutional Amendment prohibiting the Legislature from passing "any local or special act." The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute. Davis v. Clark, 106 Pa. 384; State v. Mullica Twp., 51 N.J.L. 412, 17 A. 941; Miller v. Kister,68 Cal. 142, 8 P. 813; Township of Lodi v. State,51 N.J.L. 402, 18 A. 749, 6 L.R.A. 56. The courts look to the substance and practical operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. 25 R.C.L. p. 815; 1 Lewis' Sutherland, Statutory Construction, p. 359. A local law is one that applies to any subdivision or subdivisions of the State less than the whole. 3 Words Phrases, Second Series, p. 172. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate. Van Cleve v. Passaic Valley Sewerage Cm'rs, 71 N.J.L. 183,58 A. 571, 572; Ry. v. Hanniford, 49 Ark. 291,5 S.W. 294; Little Rock v. North Little Rock, 72 Ark. 195,79 S.W. 785.

This act, by reason of the express provision excepting certain counties of the State arbitrarily from its operation and limiting it to the territory not excepted, becomes local or special within the meaning of the Constitutional Amendment, and was beyond the power of the Legislature to enact, and is consequently void and of no effect, and the court did not err in so holding.

The decree is affirmed.

MEHAFFY, McHANEY and BUTLER, JJ., dissenting.