I am not sure whether the opinion of the majority should be construed to mean that the construction of courthouses and jails is exempt from the restrictions found in amendment No. 11, or whether the words, "make or authorized any contract or make any allowance," are held to be synonymous with the words, "sign or issue any scrip, warrant or make any allowance," so as merely to prohibit the issuance or the making of allowances. There is reference throughout the opinion to the construction of court houses and jails, as if those expenses were to be treated as exempt from the operation of amendment No. 11. But near the conclusion of the opinion the court seems to treat the different words of restriction as synonymous, and to hold that the restriction applies only to the making *Page 162 of allowances or issuance of warrants during a given fiscal year, and not to the making of contracts for payments extending over a series of years. I do not agree to either of those theories, for I can find in the constitutional amendment no exemption whatever of any kind of expense, and it seems to be that the language is too broad and emphatic to restrict the prohibition to the mere allowance of claims and the issuance of warrants thereon. The language not only fails to mention any exemptions from its operations, but on the contrary it contains words of great emphasis in applying the restriction to contracts or allowances "for any purpose whatever," showing that the framers of the amendment intended no exemption. If, forsooth, there are any exemptions, I scarcely see how they can be limited to the cost of constructing court houses and jail, for there are other public buildings in counties and municipalities which are just as essential to orderly government and to the protection off the health and welfare of the people. Other emergencies may arise which are just as important as the construction of court houses and jails. Then why should there be declared an implied exemption as to court houses and jails? There is not word anywhere in the Constitution with reference to the construction and maintenance of court houses or jails. However essential those buildings are to government, the construction and maintenance of them is treated, by silence on the subject; merely the same as other expenses.
The case of Hilliard v. Bunker, 68 Ark. 340 (cited by the majority and which merely followed the decision in Durritt v. Buxton, 63 Ark. 397), involved the construction of statutes, to determine whether a general statute repealed a prior special one, and the decision has no bearing, I think, on the interpretation of amendment No. 11.
The Constitution of 1874 restricted taxation in counties to one-half of one per cent. "for all purposes." If the cost of construction of court houses and jails is *Page 163 exempt from the operation of amendment No. 11, then it can be urged with equal force that those extraordinary expenses of government are exempt from the operation of the constitutional restriction as to the amount of taxes; and yet never once during the fifty years since the adoption of the Constitution of 1874 and amidst all the difficulties encountered since then in the construction of public buildings (by counties, has any one appeared with spirit so bold as to make any such contention. The counties have all built court houses and jails without violating the Constitution with respect to the limit of taxation.
Turning to the other thought expressed in the opinion of the majority, namely, that the language of the amendment permits the making of contracts for the Construction of court houses and jails, if the cost is spread over a term of years so as to limit the total expense each year to the revenues thereof, it seems to me that the position of the majority is equally, untenable. If contracts may thus be made for the construction of court houses and jails, why may not any other contract for legitimate expenses be made, regardless of cost, if it is spread over a term of years? If, in other words, the prohibition extends only to the allowance of claims for the issuance of warrants, why cannot such a contract be made for any other legitimate expense? There is no distinction, as I have already said, to be found in the language of the amendment. If that interpretation of the contract is true, then the county court or town council can make as many contracts as they see fit for future payments, this incurring unlimited obligations, if they do not make allowances or issue warrants in excess of the revenues for the fiscal year. With all respect for the opinion of my brethren, I cannot bring myself to believe that the framers of the constitution intended any such result. It is contrary, I think, to the plainest sort of language used. That interpretation eliminates the word "contract" entirely from the amendment and gives no force or meaning to it whatever. I see no escape from *Page 164 the conclusion that the language of the amendment plainly means just what it says — that no contract nor any allowances nor any issuance of warrants shall be made during the fiscal year in excess of the revenues for that year. It means that counties and municipalities that are to be lifted out of debt by the provisions of this amendment must stay out of debt — must not incur indebtedness for any purpose whatever in excess of the revenues for the fiscal year. Now, a valid contract creates an obligation — a debt — no matter when it is payable. The debt is not paid by postponement. It still remains an obligation. Let us consider for a moment the illustration made by the majority in the conclusion of the opinion. When Lonoke County turns into the second fiscal year after making the contract for the construction of the court house, the contractor immediately presents to the county court his claim for the second payment of $10,000. He has a legal right to do that under the opinion of the majority, and the county court is bound to issue him a warrant, regardless of other anticipated expenses. If the contract thus made is valid, the county court can be compelled to allow the claim and issue a warrant therefor. The result will be that the restriction is not placed upon the allowance for the cost of the court house, but it restricts the amount of general expenses of the county, regardless of the necessities which may subsequently arise. In other words, under the restriction made by the majority in the opinion, the county cannot expend more than $50,000, regardless of necessities. It is thus seen that this contract for future payment supplants the payment of ordinary expenses, and, after all, leaves the county in debt. But the illustration made by the majority is not apt for the reason that, if there is no constitutional restriction upon the making of a contract for future payments, then it is within the power of the county court to make any contract for future payment regardless of amount, and the only restriction upon the allowance of the *Page 165 claim in future years is the total amount of revenues for that fiscal year. It is therefore within the power of the county court to burden the county for debts payable in the future which would exclude all other necessary expenses of the county. It cannot be determined or even estimated, until the assessments are made and taxes levied, what the revenues for a fiscal year will be; that is only determined by an ascertainment of the total amount of the assessments when the quorum court meets, and there is a levy of taxes to meet the appropriation. How can it be known in future years what the amount of the revenues is going to be? It is thus seen that this interpretation of the language of the Constitution involves us in a mass of uncertainty, which clearly demonstrates to my mind that the framers of the amendment never intended any such result, but, on the contrary, they used plain language which means just what it says.
The majority seek justification for a departure from a literal application of the language of the amendment by staying that "it would prevent the (expenditure of surplus revenue by a county, city or town to construct a building which would exceed the revenue of a single year." I scarcely think that any one would put such a narrow construction as that on the language so as to prohibit the spending of accumulated surplus. It requires no strained interpretation to say that the term "revenue from all sources for the fiscal year," is broad enough to include accumulated surplus. By such accumulations, public buildings may be constructed and paid for without making a contract in excess of revenues for the fiscal year, and this method would, in the language of the amendment, keep the counties on a "sound financial basis" — that is to say, out of debt.
Reflection upon the events of the past — the financial history of the counties and municipalities of the State — makes plain what was in the minds of the framers of amendment No. 11 and the people who voted upon it. When the Constitution of 1874 was framed, most of the *Page 166 counties of the State and many of the municipalities were heavily in debt and scrip was at a discount. This prompted the framers of the Constitution to put in a provision permitting counties and municipalities to issue interest-bearing bonds and to levy an additional rate of taxation to cover indebtedness which existed at the time of the adoption of the Constitution. But it was thought necessary, in order to keep the counties out of debt, to put in a provision absolutely prohibiting counties and municipalities from issuing interest-bearing evidences of debt in the future. It was doubtless in the minds of the framers of the constitution that the counties and cities would keep out of debt. This proved to be a vain hope. They did not keep out of debt, and it was found that there was no provision in the Constitution to prevent them from going in debt. Notwithstanding the inhibition against issuing interest-bearing evidences of debt, counties and municipalities found a way to float future evidences of indebtedness without there appearing upon the face of the obligations a provision for the payment of interest. Many of the counties again got heavily in debt, as well as the larger cities of the State, and there has been an urgent demand for the enactment of a constitutional amendment permitting counties and cities to issue bonds. The people in subsequent elections demonstrated their unwillingness to confer upon counties and municipalities a continuing power to issue bonds, but at last by amendment No. 11 they conferred authority to issue bonds and levy additional taxes for the purpose of paying indebtedness existing at the time of the adoption of the amendment. It was intended to carefully guard the situation by not only prohibiting counties and cities and towns from issuing more scrip than could be absorbed by the revenues for a given fiscal year, but they put in this provision prohibiting contracts which would incur indebtedness in the future.
It seems to me that the interpretation now placed upon the language of the amendment thwarts the *Page 167 expressed will of the people who framed the amendment and adopted it. The decision of the majority is, I must say — though I say it with great respect — founded upon the doctrine of necessities, that is to say, what appears to them to be the necessities of the situation. It is another verification of the maxim that "necessity hath no law."