Hasha v. City of Fayetteville

845 S.W.2d 500 (1993) 311 Ark. 460

Robert L. HASHA, Jim McDonald, Marlene Ray, Andre Miller, J.D. Gosnell and Bradley L. Lewis, Individually and on Behalf of all Other Person Similarly Situated, Appellants,
v.
CITY OF FAYETTEVILLE, Arkansas and Arvest Trust Company, National Association, Appellees.

No. 92-578.

Supreme Court of Arkansas.

January 19, 1993.

John Lisle, Springdale, for appellants.

Jerry E. Rose, Fayetteville, for City of Fayetteville.

Friday, Eldredge & Clark, Larry W. Burks, Jeffrey H. Moore, Little Rock, for Arvest Trust Co.

DUDLEY, Justice.

This is a illegal exaction suit. The taxpayers allege that a primary purpose of the tax has failed and that an injunction should be issued against its continued collection. The chancellor denied relief. We hold that the tax constitutes an illegal exaction and reverse and remand with instructions.

The constitutional provisions and statutes that are applicable to this case are as follows. Article 12, section 3 of the Constitution of Arkansas, in the material part, provides: "The General Assembly shall provide, by general laws, for the organization of cities ... and restrict their power of taxation ... so as to prevent the abuse of such power." Article 12, section 4 begins: "No municipal corporation shall be authorized to pass any law contrary to the general laws of the state...." A basic premise, to which we have long adhered, is that a municipal corporation has no inherent power to levy taxes, but can levy only such taxes as are authorized by law. Vance v. City of Little Rock, 30 Ark. 435 (1875). Article 16, section 11, in pertinent part, provides: "No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same...."

Act 25 of 1981, extraordinary session, authorized cities to adopt a local sales and use tax upon approval by the voters. The act provides that the tax can be abolished either by vote of the city council or by vote of the qualified voters of the city acting in accordance with the initiative procedures of Amendment 7. 1981 Ark. Acts 25 § 2(f). The emergency clause of the act provided that the tax was for city "services." This tax was referred to as the cities'"operating penny" tax since it could be "used by the city for any purpose for which the city's general funds may be used." Id. § 7. Section 2(d) of the act provided that the voters of the city must approve or reject the tax and that:

The ballot title to be used at such election shall be substantially in the following form:

"FOR adoption of a one percent (1%) local sales and use tax within (name of city)."

"AGAINST adoption of a one percent (1%) local sales and use tax within (name of city)."

Act 25 of 1981, summarized above, was amended by Act 726 of 1983 to authorize cities, after a public vote, to pledge tax collections from the "operating penny" to finance capital improvements. See Ark. Code Ann. §§ 26-75-201-26-75-223 (1987 & Supp.1991). Thus, the "operating penny" is no longer limited to providing services, but can now be converted to pay for capital improvements, and, when the tax is imposed for capital improvements, the right to an immediate repeal by initiative is lost since the tax cannot be abolished until the bonds or leases are paid in full. Ark. Code Ann. § 26-75-210 (1987).

Amendment 62 to the Constitution of Arkansas was approved at the November 1984 general election. It is entitled "Local Capital Improvement Bonds" and repealed Amendments 13, 17, 25, and 49. Section 1(a) of Amendment 62 authorizes municipalities to issue bonds, upon approval by the voters, for capital improvements of a public nature and authorizes an ad valorem tax to repay the capital improvement bonds. The same section, 1(a), permits other taxes to be used to repay capital improvement bonds if authorized by the General Assembly.

As legislation implementing Amendment 62, the General Assembly enacted Act 871 of 1985. This act does not repeal Act 25 of 1981, the "operating penny" statute; rather, it recognizes the continuation of Act 25 of 1981 in sections 9(g), 9(h), 9(k), and 10(d). Codified at Ark.Code Ann. §§ 14-164-332(b), 333(a)(2)(A), 336(c), 337(c)(1) (1987 & Supp.1991). Section 9 of Act 871 of 1985, Ark.Code Ann. § 14-164-327 (1987), authorizes a municipality to adopt a new one cent "bond penny" local sales and use tax to retire capital improvement bonds. Section 10 of Act 871, entitled "Pledge of Existing Sales and Use Tax," provides that a city, after approval by the voters, can pledge all or a portion of a pre-existing sales tax to retire capital improvement bonds. Ark. Code Ann. § 14-164-337(c)(1) (Supp.1991). In 1988, by Act 25, the General Assembly amended Ark.Code Ann. § 14-164-338 to provide that a city, as an alternative to issuing capital improvement bonds, can construct pay-as-you-go capital improvements by levying a "bond penny" for up to twelve months when that penny, over a twelve-month period, will be sufficient to construct the improvement.

In this case, the City of Fayetteville sought to assist the Fayetteville School District in a school construction project. In November of 1987, the City asked the Attorney General if it could contribute any part of a city "operating penny" sales and use tax to the Fayetteville School District. The Attorney General responded that Arkansas statutes "prohibit the City from contributing local sales tax revenue to the schools." The Attorney General said the City might construct school facilities and rent them back to the school district. In April of 1988, the Attorney General again informed the City that it could not contribute a part of local sales tax revenue to the local school district.

In October 1988, in spite of the Attorney General's opinion, the City of Fayetteville, by ordinance 3381, levied a one-cent sales and use tax, subject to approval by the City's voters at the November 1988, general election. The ordinance, in the material parts, provides:

Section 2. A special election be, and the same is hereby called to be held in the City on the 8th day of November, 1988, at which election there will be submitted to the electors of the City the questions of (a) levying a local sales and use tax at the rate of one percent (1%), and (b) issuing capital improvement revenue bonds secured by a pledge of a portion of the City's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of educational facilities for the Fayetteville School District.

Section 3. The questions shall be placed on the ballot for the election in substantially the following form:

FOR adoption of a 1% local sales and use tax within the City to be levied and collected to a maximum of $25.00 on each single transaction for a period of 20 years.

AGAINST adoption of a 1% local sales and use tax within the City to be levied and collected to a maximum of $25.00 on each single transaction for a period of 20 years.

Collection of the 1% local sales and use tax will not commence until collection of the City's existing 1% local sales and use tax shall have ceased. It is proposed that proceeds from the tax be used to finance a capital improvement program and economic development program (capital facilities) for the City.

FOR the issuance of revenue bonds secured by a pledge of a portion of the City's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $10,000,000.00 in educational facilities for the Fayetteville School District.

AGAINST the issuance of revenue bonds secured by a pledge of a portion of the City's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $10,000,000.00 in educational facilities for the Fayetteville School District.

The proposals were submitted to the voters on ballot forms prepared in compliance with the ordinance. The proposals appeared next to each other on the ballots with a line between them. The $10,000,000.00 educational facilities construction program passed by 8,556 to 4,084 votes, or better than two to one, but the tax was approved by a vote of only 7,643 to 5,260.

After the election, the City was again advised, this time by three different bond counsel, that the City had no authority to construct or finance local school district projects with the sales tax funds. A fourth bond counsel advised that the City might implement the tax, construct the school facilities, and lease them to the school district. There was some discussion among city officials of a "friendly suit" to test the issue, but that was never pursued, and the City's primary bond counsel wrote:

[W]e do not believe that it would be advisable for the City to seek a declaratory judgment as to the validity of bonds of the City secured by sales and use tax revenues for educational facilities for the Fayetteville School District. The law on a number of the points mentioned above is substantially against a favorable outcome, so that, although it is always possible that the validity of such bonds would be upheld, it seems probable that it would not.

Two years later the city desired to issue bonds to construct eleven other capital improvement projects. Section 14-164-337(b)(2)(A) of the Arkansas Code Annotated of 1987 provides that when the subsequent issuance of bonds is submitted to the voters, the ballot "[s]hall not resubmit the levy of the tax." In accordance with that provision, the City, in 1990, by ordinance 3480, submitted to the voters only the question of the issuance of capital improvement bonds for eleven other separate projects. The ballot title also provided:

In addition, such proceeds may be pledged to secure the retirement of not to exceed $10,000,000 of educational facilities bonds of the City approved by the electors of the City at an election held on November 8, 1988.

On May 29, 1990, the city voters voted in favor of the issuance of capital improvement bonds for the eleven separate projects and the schools. On July 17, 1990, after voter approval of the eleven capital projects and the schools, the City Board of Directors passed resolution 116-90, which acknowledged that its legal counsel had informed the City that it could not issue sales tax bonds to construct or finance school district projects, and that the only way it could assist the school district was to authorize "the City Manager to seek to escrow $1,000,000 a year plus interest from the General Fund, non-regular fee and tax revenues over a ten-year period to assist the school board in school construction projects." In sum, in May 1990, the City publicly disclosed that no money from the sales tax would be applied to the Fayetteville School District and that the City Manager was authorized to "seek" to take money from the City's nonregular general fund revenues for the schools.

On October 15, 1990, the City issued $33,019,000 in sales and use tax capital improvement bonds for the eleven capital improvement projects. Each month, after the sales and use tax funds are collected by the State, the funds are remitted to the bond trustee, intervenor Arvest Trust Company, N.A. The trustee then applies the amounts necessary for the retirement of the outstanding capital improvement bonds, retains a small amount as authorized in the trust indenture, and remits the rest to the city. The City then applies the money it receives to pay-as-you-go capital improvement projects.

On June 20, 1991, within a year after the City's resolution formally acknowledged that the proposal to issue sales tax bonds to construct or finance buildings for the local school district was illegal, the taxpayers filed this action. The Fayetteville School District and Arvest Trust Company, N.A. were allowed to intervene. As an affirmative defense, Arvest pleaded that the trial court was without jurisdiction to hear the case because this is an election contest and, as such, is barred by the statute of limitations, and also that the suit is barred by the doctrine of estoppel.

The chancellor rejected intervenor Arvest's affirmative defense of lack of jurisdiction because of limitations and held that it had jurisdiction. The chancellor reached the merits of the case and ruled that the voters, at the 1988 general election, approved the adoption of the sales and use tax for a period of twenty years, and that approval was given separately from the proposed issuance of $10,000,000 worth of bonds to construct facilities for the Fayetteville School District. The chancellor also ruled that the "operating penny" tax was validly enacted pursuant to authority found in Act 25 of 1981, and could be used "for any purpose for which the City's general fund may be used," the $33,019,000 in bonds issued in 1990 for the eleven separate capital improvement projects were validly issued under authority of Act 871 of 1985, Ark.Code Ann. § 14-164-337(a) (1987), and the current pay-as-you-go projects were validly financed pursuant to Act 25 of 1988, Ark.Code Ann. § 14-164-338 (Supp.1991). The taxpayers filed a notice of appeal.

Arvest Trust Company, N.A., one of the appellees, argues that we must dismiss the appeal because the suit was an election contest, but it was not filed within 20 days of the election certification. See Ark.Code Ann. § 7-5-801(d) (1987). As stated, the trial court ruled against Arvest on this argument, and Arvest did not file a notice of cross-appeal. A notice of crossappeal is necessary when an appellee seeks something more than it received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Ordinarily, this failure to file a notice of cross-appeal would end the matter, but since Arvest does not seek any relief it did not receive in the lower court, we address the matter and hold that it is without merit.

An election contest may be generally described as an action to contest the certification of the vote on an issue. See McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959); Ark.Code Ann. § 7-5-801 (1987). Here, the taxpayers do not contest the vote or the certification of the vote. Rather, as a part of their case, they plead that the tax was passed and certified, and that subsequently the purpose for the tax failed. Such a suit fits within the definition of a suit to prevent an illegal exaction. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989). Article 16, section 13 of the Constitution of Arkansas confers upon any citizen the right to institute a suit to protect against an illegal exaction. Accordingly, we decline to dismiss this as the appeal of an election contest, and we reach the merits of the taxpayers' appeal.

Arvest additionally contends the suit is barred by the doctrine of estoppel. Clearly, in the proper case a taxpayer may be estopped from questioning the validity of a tax. In Lawrence County v. Townsend, 202 Ark. 887, 154 S.W.2d 4 (1941), we held that the taxpayer was estopped to contest the validity of a bond issue when proper notice of the levy of the tax was given, the taxes were levied and collected from the taxpayer for eleven years, those taxes were pledged and paid on bonds for the same eleven year period, and there was no failure of purpose of the bond issue. That is not the case before us. Here, the tax itself is at issue, and the suit was filed within one year after it was publicly known that the principal purpose of the tax had failed. Thus, the doctrine of estoppel is not applicable.

In their appeal on the merits, the taxpayers assign five rulings as error. Those five assignments involve a number of subpoints beginning with the argument that Act 25 of 1981 is either repealed or unconstitutional and running through the chancellor's construction of Act 25 of 1988, Ark.Code Ann. § 14-164-338 (Supp.1991). Three of the assignments of error are closely related and involve the trial court's ruling that the tax is valid even though the voters approved the tax at the same time they approved issuing $10,000,000 in bonds for the Fayetteville School District. We treat those three closely related assignments together. It is not necessary for us to reach the other issues.

The vote to adopt the sales and use tax for twenty years, with its concomitant waiver of the right of initiative during that period, was inextricably linked to the vote to issue $10,000,000 in bonds to construct facilities for the Fayetteville School District. The chancellor found that the voters voted separately on these two issues since there was a line between them on the ballot form, but the fact that there was a line between them is only on the periphery of the issue. From the beginning, the city clearly tied the two issues together. Section 2 of the ordinance calling the election provides:

A special election be, and the same is hereby called to be held in the City on the 8th day of November 1988, at which election there will be submitted to the electors of the City the questions of (a) levying a local sales and use tax at the rate of the one percent (1%), and (b) issuing capital improvement revenue bonds secured by a pledge of a portion of the City's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of educational facilities for the Fayetteville School District.

The two proposals were then submitted next to each other on the same ballot form with a line drawn between them. A voter who wished to vote for the issuance of the $10,000,000 in bonds for the school district knew that he or she was required to also vote in favor of the tax because, without the tax, the bonds could not be issued. It is abundantly clear that the proposal for the issuance of the bonds for the construction of the school facilities was popular with the voters. In fact, that proposal received a two to one favorable vote, 8,556 to 4,084. Those voters who wanted the school construction had only one choice—to vote for both the issuance of the school bonds and the twenty-year sales and use tax. There was a natural relationship between them. The two proposals were part of the same plan. They were united. If it were not for the proposed bond issue, the tax would have been only an "operating penny" tax subject to public initiative throughout its levy, and not a "bond penny" levied for twenty years.

Arvest contends that the chancellor's ruling that the two proposals were completely separate should be affirmed because the last sentence of the sales tax proposal on the 1988 ballot provided: "It is proposed that the proceeds from the tax be used to finance a capital improvement program and economic development program (capital facilities) for the City." The argument is without merit because the proposed $10,000,000 school bond issue was to be a part of the capital improvement program, and, if anything, this sentence would lead a voter to think the two proposals were linked. It is obvious that the City also thought the school bond issue was a part of its "capital improvement program" because its ordinance placing the "issuance of capital improvement bonds" on the ballot in 1990 stated:

The retirement of the bonds shall be secured by a pledge of all of the proceeds of such tax or such portion of such proceeds as shall be determined by the City to be adequate to obtain satisfactory ratings or insurance on the bonds. In addition, such proceeds may be pledged to secure the retirement of not to exceed $10,000,000 of educational facilities bonds of the City approved by the electors of the City at an election held on November 8, 1988.

The vote on the tax and the vote on the school district bonds were inextricably linked, and the school district bonds were, at the least, a primary purpose of the tax. Three years after the favorable vote on the two proposals, the City admitted that the proceeds from the tax could not be used to issue the $10,000,000 in school bonds. An illegal exaction occurs when the purpose of a tax cannot be accomplished and the government retains the tax funds. Hartwick v. Thome, 300 Ark. 502, 780 S.W.2d 531 (1989). We hold that an illegal exaction occurred when a primary purpose of the tax could not be accomplished and the collection of the tax was continued.

Because we hold the tax constitutes an illegal exaction, we reverse the ruling of the trial court and remand for the chancellor to enjoin further collection of the tax. In addition, the chancellor is instructed to conduct a hearing to award an attorney's fee, see Ark.Code Ann. § 26-35-902 (1987), and to determine whether the City or the trustee now has any funds that rightfully belong to the taxpayers. If it develops that there are such funds, the chancellor should determine their disposition. The general rule is that funds which have been acquired through an illegal exaction are to be returned pro rata to the various taxpayers who initially paid them, but this case involves funds collected through a sales tax, and it is probable that the proof will show that it is impossible to determine, with any degree of economic certainty, who paid the taxes. Thus, it is probable that the funds, if any, cannot be refunded to the initial payers, and the chancellor must hold a hearing to determine how the funds are to be disposed. See City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990).

Reversed and remanded with instructions.

HAYS, GLAZE and CORBIN, JJ., dissent.

GLAZE, Justice, dissenting.

The lengthy and complex majority opinion boils down to the following simple issue: Did the citizens and voters of Fayetteville understand they were levying and pledging one penny of the city's existing local sales and use tax for a capital improvement program? Four members of this court answer, "No," and effectively set aside two Fayetteville elections where the voters of that city authorized a penny tax for such purposes. The trial judge and three members of this court say, "Yes, the Fayetteville voters did approve a tax for a capital improvements program." You, as an interested reader, can decide for yourself merely by reading the two ballots that were presented to the Fayetteville electors at elections held on November 8, 1988, and May 29, 1990.

The first ballot giving Fayetteville voters an opportunity to vote for or against such a one penny sales and use tax for capital improvements was printed on the Washington County General Election Ballot on November 8, 1988, and in pertinent part reads as follows:

DEFENDANT'S EXHIBIT 7 OFFICIAL BALLOT GENERAL ELECTION WASHINGTON COUNTY, ARKANSAS NOVEMBER 8, 1988 Placing an "X" in the square opposite the person for whom you wish to vote President and Vice Proposed President of the Constitutional United States Amendment No. 4 (Vote for One) [Text omitted.] [Text omitted.] Fayetteville Director (Vote for One) [Text omitted.] Referred Question [Text omitted.] An Ordinance City of Fayetteville An ordinance providing that the City of Fayetteville will not use or promote the use of herbicides in public places in the city. For adoption of a 1% local sales and use tax within the city to Proposed Initiated be levied and collected Act 1 to a maximum of $25.00 [Text omitted.] on each single transaction for a period of 20 years. [] Against adoption of a 1% local sales and use tax within the city to be levied and collected to a maximum of $25.00 Vote on Amendments on each single and Questions by transaction for a Placing an "X" in period of 20 years. [] the Square Opposite Collection of the 1% the Amendments and local sales and use tax Question Either For will not commence until or Against. collection of the City's existing 1% [Text omitted.] local sales and use tax shall have ceased. It is proposed that proceeds from the tax be used to finance a capital improvement program and economic development program (capital facilities) for the city. For the issuance of revenue bonds secured by a pledge of a portion of the city's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $10,000,000 in educational facilities for the Fayetteville School District. [] Against the issuance of revenue bonds secured by a pledge of a portion of the city's 1% local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $10,000,000 in education facilities for the Fayetteville School District. []

As can be seen, all questions on the 1988 ballot were separated from each other by printed lines. The same is true regarding the sales and use tax and capital improvement question and the question pertaining to the school district bonds. The Fayetteville voter could separately vote for or against either of the two questions—the sales tax and capital projects question or the school bonds question. Instead, they voted for both, 60% in favor of the tax and city's capital improvements program and 68% in favor of the Fayetteville School District's educational facilities program.

Because the issuance of the bonds for school facilities was a primary purpose, the majority court suggests that the inclusion of the school bonds question on the 1988 ballot misled the Fayetteville voters into passing the city's sales tax and capital improvements program. Such a suggestion is clearly not supported by the record. No such finding was made by the trial court, nor was evidence submitted to support that finding.

The city improvement project was made a part of the sales and use tax question, and that being so, the city improvement program was clearly the primary purpose of any sales taxes approved by the Fayetteville voters. Nonetheless, to avoid any argument that the voters could have been misled as to the purpose of any approved tax, the city placed its capital improvements program before the voters once again and this time in unmistakable detail. The following ballot was before the Fayetteville voters at a May 29, 1990 election:

OFFICIAL BALLOT CAPITOL IMPROVEMENT BONDS CITY OF FAYETTEVILLE, B ARKANSAS C MAY 29, 1990 INSTRUCTIONS TO VOTER 1. To vote you must blacken the QUESTION ONE QUESTION EIGHT Oval O completely next to "FOR" A bond issue in principal amount A bond issue in principal amount or "AGAINST" in each question. not to exceed $12,326,000 for the not to exceed $69,000 for the purpose 2. Use only the pencil provided. purpose of constructing, reconstructing of acquiring, constructing and 3. After voting, deposit ballot in and improving City equipping emergency medical service ballot box. streets and bridges. vehicles, equipment and facilities. There is hereby submitted to the [] FOR [] FOR qualified electors of the City of Fayetteville, Arkansas, pursuant to [] AGAINST [] AGAINST ordinance No. 3480 of the City. The issuance of capital improvement QUESTION TWO QUESTION NINE bonds under Amendment No. A bond issue in principal amount A bond issue in principal amount A CITY OF FAYETTEVILLE, B B ARKANSAS C MAY 29, 1990 62 to the Arkansas Constitution, as not to exceed $11,615,000 for the not to exceed $998,000 for the purpose implemented by Act 871 of 1985, as purpose of acquiring, constructing of expanding and renovating amended in the principal amount and equipping water transmission the City Youth Center swimming set forth in each question below, and distribution facilities. pool and related facilities. for the purpose of financing, with any other available funds, the costs [] FOR [] FOR of acquiring, constructing, reconstructing, improving, renovating, [] AGAINST [] AGAINST expanding and equipping capital improvements for the City as described QUESTION THREE QUESTION TEN the respective question below A bond issue in principal amount A bond issue in principal amount and related costs of issuance, not to exceed $1,773,000 for the not to exceed $2,013,000 for the such improvements including (i) purpose of acquiring, constructing purpose of acquiring, constructing streets and bridges, (ii) water and reconstructing drainage improvements. and equipping parking facilities for transmission and distribution facilities, the Dickson Street areas. (iii) drainage improvements, (iv) solid waste collection, disposal, [] FOR [] FOR compacting and recycling facilities, (v) public parks and playgrounds, [] AGAINST [] AGAINST (vi) police equipment, apparatus and facilities, (vii) firefighting vehicles, QUESTION FOUR QUESTION ELEVEN equipment, apparatus and A bond issue in principal amount A bond issue in principal amount facilities, (viii) emergency medical not to exceed $1,179,000 for the not to exceed $575,000 for the purpose service vehicles, equipment and facilities, purpose of acquiring, constructing of acquiring, constructing and (ix) the City Youth Center and equipping solid waste collection, equipping City maintenance and swimming pool and related facilities, disposal, compacting and recycling storage facilities and buildings. (x) parking facilities for the facilities. Dickson Street area and (xi) maintenance and storage buildings and [] FOR [] FOR facilities. The City has levied a one percent (1%) local sales and use [] AGAINST [] AGAINST tax within the City pursuant to Ordinance In order to retire the bonds, the No. 3381, adopted on October QUESTION FIVE City shall pledge all of the proceeds 4, 1988, to be levied and collected A bond issue in principal amount its one percent (1%) local to a maximum of $25.00 on each not to exceed $561,000 for the purpose sales and use tax previously approved single transaction. The retirement of acquiring, constructing and by the electors of the City of the bonds shall be secured by a equipping public parks and playgrounds. or such portion of such proceeds as pledge of all of the proceeds of shall be determined by the City to such tax or such portion of such be adequate to obtain satisfactory proceeds as shall be determined by [] FOR ratings or insurance on the bonds. the City to be adequate to obtain satisfactory ratings or insurance [] AGAINST on the bonds. In addition, such proceeds may be pledged to secure QUESTION SIX the retirement of not to exceed A bond issue in principal amount $10,000,000 of educational facilities not to exceed $213,000 for the purpose bonds of the City approved by the of acquiring, constructing and electors held on November 8, 1988. equipping police equipment, apparatus In the event that the electors shall and facilities. approve only a portion of the bonds proposed to be issued, there shall [] FOR only be issued bonds for the purposes approved by the electors. [] AGAINST The bonds that are approved may be combined into one or more issues QUESTION SEVEN of bonds, which may be issued A bond issue in principal amount at one time or in series from time not to exceed $1,697,000 for the to time. purpose of acquiring, constructing and equipping firefighting vehicles, equipment, apparatus and facilities. [] FOR [] AGAINST

As stated above, the city listed the foregoing menu of capital improvements, totaling more than $33 million, to assure the city voters that their one penny sales tax would be utilized for such city improvements, if approved. Obviously, if the voters thought they had been in any way misled by their earlier 1988 ballot, they could have voted against any or all of the capital improvements offered them on the May 29, 1990 ballot.^[1] They did not.

While the parties in this appeal argue a number of issues, the majority opinion reverses the trial court only because the majority court suggests the vote on the tax and the vote on the school district bonds were inextricably linked, and the issuance of school district bonds was a primary purpose of the tax. The court then concludes the school bonds are illegal, and because they are invalid, the sales tax and capital project purposes must also fail. The majority court further suggests the city admits the tax proceeds cannot be used to issue the school bonds approved at the 1988 election.

Again, the sales tax involved here had a two-fold purpose in 1988—city improvements and school construction—and clearly the capital improvement purpose was primary and approved by the voters, not once, but twice. If any doubt clouded the 1988 vote, Fayetteville voters removed those doubts when they unmistakably approved those city capital projects in 1990.

Finally, I do not read the city's argument on appeal to admit the sales and use tax proceeds cannot be utilized to issue the $10 million in school bonds. However, even if such school bonds would be invalid and could not be issued (which I am inclined to believe), that conclusion under the facts of this case does not defeat the sales tax and city capital improvement bonds approved by the Fayetteville voters.

We do Fayetteville voters a real disservice by assuming, without proof, that they did not know what they were doing when casting their ballots at the 1988 and 1990 elections. This case does not involve a city government that, by intention or deed, exercised bad faith or misled the electorate into approving a sales tax and issuance of bonds without first having an intelligible vote on such questions. The voters are entitled to the city projects they approved even though the school district projects may prove invalid. Accordingly, I would affirm the trial court's decision.

HAYS and CORBIN, JJ., join this dissent.

NOTES

[1] If both the city improvements program and school district construction project failed to obtain voter approval or failed for other legal cause, the tax approved by the voters could not be collected and used for any other purpose, and taxpayers are then entitled to a refund. Hartwick v. Thome, 300 Ark. 502, 780 S.W.2d 531 (1989).