This appeal involves the constitutionality of Act 107 of the 1959 Legislature. On a hearing, the trial court held the Act unconstitutional on two grounds: (1) that it violates Amendment No. 40 to the Constitution of the State of Arkansas and, (2) that it also violates Amendment No. 14 for the reason that it was special and local in its effect.
Since we have concluded that the Act clearly, we think, violates Amendment 40 on two grounds, which we shall point out it becomes unnecessary to consider whether it violates Amendment 14.
A brief summary of Act 107 may be stated as follows:
(1) Upon the petition of not less than 10% of the qualified electors of each of the school districts within any county that may now or hereafter have a population of 100,000 or more, the County Board of Election Commissioners of the county shall call a special election on the question of whether the county shall he a County Equalizing School District.
(2) If a majority of the “qualified electors in the county voting on the issue” shall vote for the County Equalizing School District, the same shall be established and if a majority vote against the County Equalizing School District, the same shall not be established, and another election shall not be held in the same county for a period of two years.
(3) If the vote is for County Equalizing School District, the County Board of Election Commissioners certify the same to the County Clerk and the district is named for the county voting for the same.
(4) The County Equalizing School District shall be composed of the territory of the school districts of the county voting the same but “The establishment of a County Equalizing School District shall, in no way, alter, change, or affect any of the powers, duties or existence of any of the school districts of the county”.
(5) The electors of the County Equalizing School District (thus the electors of the entire county) have the power at the annual school election to vote for the allocation of a portion of the total tax proposed by the school board of each school district and such revenue as may accrue from the annual tax allocated to the county Equalizing School District shall be distributed to the respective school districts of the county to be used for equalizing educational purposes.
The County Board of Education serves as the board of the County Equalizing School District and the County Board of Education ‘ ‘ shall provide for the placing on the ballot” in each school district the question of the voting for the allocation of nine mills at the first annual election after the establishment of such Equalizing District, and thereafter eighteen mills. “If a majority of the qualified electors in the County Equalizing School District voting on the issue” votes for the allocation, the appropriate county officials levy, collect and distribute the revenues from the tax to the Equalizing District to be used for the purposes of the Act. If a majority votes against the allocation, the millage shall be levied, collected and credited to the respective school districts by the appropriate county officials. The Act states its purpose to be that the school boards of the respective school districts shall propose the total millage levy for vote in each school district of the county.
(6) The County Board of Education distributes moneys derived by the Equalizing District as follows:
A. To each district a proportional part of the total funds as the average daily attendance of pupils in said district for the previous year bears to all pupils in average daily attendance for the previous year in all school districts of the county. Average daily attendance, in the case of a school closed by Governor’s Proclamation of Act 4 of the Second Extraordinary Session of 1958, is defined to be that of the year immediately preceding sneh closing and shall so continue until one full year after the school has been reopened.
B. The funds are to be distributed and credited by the County Treasurer upon order of the County Board of Education, to the school districts as now provided by law for distribution of funds derived from school millage levies. Funds so received may be used for maintenance and operation, erection and equipment of buildings and retirement of existing indebtedness.
(7) Section 7 of the Act repeats the intent that nothing shall amend, alter, diminish or change any of the existing powers and duties of school districts of the state.
(8) The Act contains a separability clause, a repealing clause, and an emergency clause.
Amendment 40 provides: “Poll tax — School district tax — Budget—Approval of tax rate by electors. — The General Assembly shall provide for the support of common schools by general law, including an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years; and school districts are hereby authorized to levy by a vote of the qualified electors respectively thereof an annual tax for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness, the amount of such tax to be determined in the following manner: The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any concinuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by the Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election. Provided, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”
Sections One (1) and Two (2) of Act 107 make provisions for calling special elections for determining fiscal affairs of a school district which we have heretofore held to be in violation of the provisions of Amendment 40 which does not permit, or recognize, special elections, but only annual school elections for such purpose. In 214 Ark. 771, 218 S. W. 2d 359, Adams v. DeWitt Special School District No. 1, in considering Amendment 40, we held that “Special Elections are not recognized by the Amendment,” (headnote 3) and in the opinion we said: “The Amendment [40] is comprehensive in that it removes all prior financial restrictions upon the electorate. Buildings, equipment, existing indebtedness, maintenance, all may be cared for in the Board’s recommendations, and finality needs only the approval of a majority of those voting. The entire plan revolves around the annual election, mentioned four times. ’ ’
In Sims v. Hazen School District No. 2, 215 Ark. 536, 221 S. W. 2d 401, where there was involved the question, whether a school district could impose a tax to support a bond issue at a special election held for that purpose, we there said: “We hold that it cannot for the reason that Amendment No. 40 of our Constitution, adopted November 2, 1948, prohibits the imposition of such a tax unless it has been approved by a majority vote of the qualified electors of such School District at an annual school election, and not at a special election, as was attempted here.
“The General Assembly could not by any provision of Act 161, supra, do anything forbidden by the Constitution. We said in Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39: ‘The Act . . . could not have the effect of amending the Constitution, as would be the result if the contention of counsel be correct. The Legislature cannot cure a proceeding made void by the Constitution, and no act that it passes can breathe vitality into a thing that is dead. The Legislature cannot do indirectly a thing directly prohibited by the Constitution.’ ” We hold, therefore, that the Act is void for this reason.
We hold also that the Act is clearly void and unconstitutional for still another reason: It will be observed that Section Five (5) of the Act attempts to place a limit on the number of mills that the electors in a school district may vote upon themselves for school purposes by providing that, “The number of mills to be allocated to the County Equalizing School District at the first annual school election after the establishment of such District shall be nine (9) mills, and thereafter the number of mills to be allocated to the County Equalizing School District shall be eighteen (18) mills.”
This attempted limitation is right in the teeth of Amendment 40 which places no limitation whatever on the number of mills that any school district may vote at any annual school election. Amendment 40 specifically places the amount needed to operate a school district in the hands of the voters of such district and removes all financial restrictions as to their powers in determining these amounts deemed necessary by the Board of Directors of the District for maintenance of schools, the erection and equipment of school buildings and the retirement of school indebtedness, while Act 107 provides that the millage cannot be less than nine (9) mills in the first school election and eighteen (18) mills thereafter, whether those amounts are needed or not.
Accordingly, the decree is affirmed.
George Rose Smith, MoFaddin and Robinson, JJ., concur. Johnson, J., dissents.