Adkins v. Harrington

E. B. Kinsworthy, special Judge. Street Improvement District No. 340 of the city of Little Rock, Arkansas, and the South Broadway annex thereto, were1 organized under the laws of the State of Arkansas regulating the organization of improvement districts in cities and towns, for the purpose of paving Broadway Street in the city of Little Rock, Arkansas, from Markham Street to Twenty-second Street. Appellee, Eugene M. Harrington, is a property owner m and treasurer of said improvement district and annex. Appellants, Homer M. Adkins and J. E. Engstroum, are the' duly qualified and acting sheriff and ex-officio collector of taxes, and treasurer of Pulaski County, Arkansas, respectively. A majority of the qualified electors of Pulaski County, Arkansas, at the regular general.election for' the year 1922, voted in favor of a road tax. The county court of Pulaski County, Arkansas, together with a majority of the justices of the peace of the county, at its annual meeting in the year 1922, levied a tax of three mills on the dollar on all property in Pulaski County, Arkansas, as a county road tax; this tax being levied under the authority given by Amendment No. 3 to the Constitution of Arkansas, which amendment was adopted on January 13, 1899. After the formation of said street improvement district and annex thereto, the General Assembly of Arkansas for 1923 passed act No. 275, which act provides for the payment of the three-mill road tax levied on property within said Street Improvement District No. 340’ and South Broadway annex, to the treasurer of said street improvement .district. Said act also provides, in § 4, that compliance with any of the provisions of said act may be enforced by mandamus by any interested property-holder. The act was passed for the purpose of assisting said improvement district and annex thereto in improving Broadway Street. In other words, the Legislature, by said act, authorized the three-mill road tax, collected on property within the borders of said improvement district and annex, to be used by said improvement district and .annex in.making and paying for said improvements. Appellee, the treasurer of said improvement district, and also a property owner within the territory of said district, after the said three-mill road tax had been collected, demanded that Homer M. Adkins, as sheriff and tax collector of Pulaski County, and J. E. Engstroum, as treasurer of said county, deliver to him the amount of road tax collected on property in said improvement district, which they refused to do. Appellee then instituted this action in the Pulaski .Circuit Court, Second Division, asking that a writ of mandamus issue, commanding appellants and each of them to pay over to him, as treasurer of Street Improvement District No. 340 and annex thereto, the three-mill road tax collected from property within said district and annex. Appellants filed a demurrer to appellee’s petition for writ of mandamus, which demurrer contains two grounds. First: That the petition did not state facts sufficient to justify the relief sought. Second: That act No. 275, above referred to, on which said petition is based, is in conflict with § 28, article 7, and Amendment No. 3 to the Constitution of Arkansas. The court below overruled the demurrer, and, appellants electing to stand upon their demurrer, and refusing to plead further, the court rendered a judgment in favor of appellee, and ordered that a writ of mandamus issue commanding appellants to pay over to appellee the funds in their respective hands which was collected on property included within the bounds of Street Improvement District No.- 340 and annex thereto, that is, the three-mill road tax collected within said territory. From this judgment of the circuit court appellants have appealed. There is no question as to the jurisdiction of the court if said act No. 275 above referred to is legal, so the only question in the case is whether or not act No. 275 is in conflict with the Constitution of Arkansas. If it is, the case should be reversed; if it is not, the case should be affirmed. It is urged that this act is in conflict with § 28 of article 7 of the Constitution of Arkansas, which grants to county courts original exclusive jurisdiction in all matters relating to roads, the disbursement of moneys for county purposes, and in other cases that may be necessary to the internal improvement of the county. Long after the adoption of the Constitution of 1874 and the above mentioned section thereof, Amendment No. 3 to the Constitution was voted by the people of the State, and declared adopted on January 13, 1899. By the amendment it is provided that the county court shall [iave the power to levy a road tax not exceeding three mills, if a majority of the qualified electors of the county shall have voted therefor at the general election preceding such levy. In amendment No. 3 no provision is made as to what governmental agency shall receive or disburse the funds collected from such tax. It is only provided therein that such taxes, when collected, shall be used in the respective counties for the purpose of making and repairing public roads and bridges of the respective counties, and for no other purpose. Unless inhibited by some constitutional provision, the State Legislature has full power over all matters of taxation -and the collection and disbursement of taxes, and may exercise absolute control over all revenues collected by subordinate branches of the State Grovernment. The streets of a municipality are public roads of the county of which the municipality is a component part. Texarkana v. Edwards, 76 Ark. 22; Sanderson v. Texarkana, 103 Ark. 529; El Dorado v. Union County, 122 Ark. 184. The State, in its sovereignty over all public highways, has full power over streets as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency as it may deem best the power of supervision and control over streets. We find that the Legislature that assembled after the adoption of the Constitution granted to municipal councils the power to lay out, open, establish, improve and keep in repair the streets within their corporate limits. In the case of Sanderson v. Texarkana, 103 Ark., 534, the court,- in passing upon an act of the Legislature appropriating to the city of Texarkana a part of the three-mill road tax, used the following language: “By virtue of the constitutional provision authorizing the organization of municipal corporations by the Legislature, and the immediate legislation had hereafter, the supervision over public highways or streets within cities and towns was confided to the authorities of the municipalities, and by the constitutional provision of § 28, article 7, and legislative enactments thereunder, jurisdiction over highways or roads in the county, outside of municipalities, was confided to the county court. Both the. streets in municipalities and the highways outside of them are public roads, and any money arising from taxation expended upon the one or the other is used for the purpose of making and repairing public roads within the meaning of the provision of said Amendment No. 5.” (Now called Amendment No. 3). . And quotes the case of Texarkana v. Edwards, supra, as supporting this doctrine.. And in doing so the court further states in the Sanderson case: “But it is urged that it was also held in that case that the road tax, when collected, is a county fund, and should be paid into the county treasury, and that the expenditure thereof is under the jurisdiction of the county court. It was, however, said in that case that such ruling was made only in view of the legislative enactments and the law as they then stood, and that, to avoid a conflicting jurisdiction between county, and .city officers, further legislation was required.” The doctrine as above laid down is fully supported, not only by the case of Texarkana v. Edwards, but the case of Sanderson v. Texarkana, and of El Dorado v. Union County. This doctrine is so well settled by this court that we deem it unnecessary to cite other authorities or to say more on this point. These cases also hold that the tax collected under Amendment No 2 is not a county fund in the sense that the entire tax belongs to the county and must be expended under the jurisdiction of the county court, and that, in the absence of any constitutional inhibition, the Legislature has full power, not only to apportion said road tax between the counties and municipalities, but also, as therein suggested, it has the power to direct what governmental organization shall handle the fund and have the right to expend that portion of the fund apportioned to it. It is contended by appellants that, even if the Legislature had a right to apportion this road tax between cities and counties, it would not have the right to the distribution of any part of it to a local improvement district. This contention is in direct opposition to the decisions of this court, for this court holds, in the case of Whaley v. Northern Improvement District, 152 Ark. 573, that a local improvement district is a governmental agency. If it is a governmental agency, then the Legislature would have a right ,to direct distributions to it out of this fund, for the improvement of streets. This court has also held that the Legislature,, by virtue of its reserved authority, may select another agency than the city council to open highways through private property in incorporated towns and cities; in other words, that it may designate what improvement districts may do this. If so, it may order distribution to„ such improvement districts of funds which it can constitutionally distribute. Road Improvement District No. 1 v. McAlpin, 163 Ark. 602. From the foregoing it is evident that act No. 275, under consideration herein, is in no way in conflict with § 28, article 7, of the Constitution of Arkansas, or Amendment No. 3, and, said act not being in conflict with the Constitution, and the improvement district being a governmental agency established by the laws of the State of Arkansas, we are of the opinion that said act No. '275 is legal and binding, and that the court below was correct in issuing its mandamus. The judgment of the circuit court is therefore correct, and is affirmed. Smith, J., disqualified.