Dermott Special School District v. Brown

John A. Fogleman, Justice,

dissenting. I am unable to join in the court’s retreat from what seems to me to be an obviously correct legal result reached in the original opinion handed down July 17, 1972, in spite of the fact that it is probably less appealing because of its potential impact upon the adequacy of financing the law enforcement at the county level in certain counties in this state. No one is more aware than I of the plight in which some sheriffs find themselves when they are forced to try to man, maintain and equip an effective, modern law enforcement agency without resort to anything except the fees that office may collect. However desirable it may be to assist in seeing that these officers have resort to some other funds, our constitution and statutes do not permit any portion of the collector’s fees derived from ad valorem school tax collections to be used for law enforcement purposes. Alleviation of the problem is a legislative responsibility, either of the General Assembly, or, at the local level, of voters by enacting adequate measures through initiative procedures. The solution is not judicial “legislation” taking funds raised for hard-pressed schools.

We have two constitutional barriers to diversion of taxes collected for school purposes. They are Article 14, Section 3, as amended by Amendment 11 and by Amendment 40, and Article 16, Section 11. The first section provides that no tax levied for maintenance of schools, the erection and equipment of school buildings or the retirement of existing indebtedness in a school district shall be appropriated for any other purpose. The latter section states that no moneys arising from a tax levied for one purpose shall be used for any other purpose. Both prohibit the use of tax funds levied for school purposes to defray expenses of law enforcement.

This court once construed a similar provision in Amendment 3 of the Constitution authorizing a millage levy for county roads, to actually prohibit the payment of any part of the salary of the county judge as road commissioner or any administrative expenses. Burrow v. Floyd, 193 Ark. 220, 99 S.W. 2d 573. The court then recognized in Ladd v. Stubblefield, 195 Ark. 261, 111 S.W. 2d 555, that it could be urged, with convincing logic, that supervision by the road commissioner is an essential part of the cost of road and bridge construction and repair, but adhered to the extremely narrow limits prescribed in Burrow. In Lawhon v. Johnson, 196 Ark. 991, 120 S.W. 2d 720, this court receded from the very narrow construction applied in Burrow, but only upon the basis that a portion of the salary of the county judge from these funds would not be a misappropriation because his services in the supervision of construction and repair of roads and bridges were as much a necessary expense as the driving of a grader, or the use of a plow or other instrumentality. This holding went no further than to say that such expenditures came within the purposes for which the tax was levied. It is clear from this action, however, that payments for services from taxes levied for a specific purpose must contribute directly to the accomplishment of that purpose.

Law enforcement makes no direct contribution to the accomplishment of the purposes for which our constitution authorizes the levy of school taxes, although collection of the taxes does. In Dew v. Ashley County, 199 Ark. 361, 133 S.W. 2d 652, we said that perhaps there was no better settled principle of law than the one providing that taxes levied and collected for one purpose may not be diverted or appropriated to any other purpose. Unitl today it has remained just that firmly settled.

In holding that the payment of county superintendents of schools and county boards of education from the common school fund did not constitute a diversion of school funds in violation of constitutional prohibition, this court said that the constitution does prohibit the application of the common school fund to “any other brancli of state expenditures except that immediately and directly connected with the establishment and maintenance of a common school system.” Little River County Board of Education v. Ashdown Special School District, 156 Ark. 549, 247 S.W. 70.

We have uniformly adhered to the philosophy expressed by the Supreme Court of Washington and first quoted by us in Dickinson v. Edmondson, 120 Ark. 80, 178 S.W. 930, Ann. Cas. 1917C 913, which is:

To take from the one and give to the other by indirect methods that which was designed for a special purpose would defeat the whole scheme of the law and open a way for the ultimate transposition of funds held under a most sacred trust. Courts have been zealous in protecting the money set apart for the maintenance of the free schools of the country. They have turned a deaf ear to every enticement, and frowned upon every attempt, however subtle, to evade the .Constitution. Promised benefit and greater gain have been alike urged as reasons, but without avail. They have endeavored to say in unmistakable terms that the common school fund is just what it purports to be, a fund to be used for the sole purpose of supporting the graded schools of the commonwealth under the sanction of fixed and uniform laws. * * *

See, County Board of Education v. Austin, 169 Ark. 436, 276 S.W.; Terry v. Thornton, 207 Ark. 1019, 183 S.W. 2d 787.

We first applied Section 11, Article 16, to fees of county officials in Gray v. Matheny, 66 Ark. 36, 48 S.W. 678, when we said that the excess fees or commissions on funds paid over to a county treasurer remaining after the payment of his salary belong to the county, and go to the respective funds for which the tax was levied and collected. The holding in Gray v. Matheny was sustained (even though it was dictum) by a divided court in County Board of Education v. Austin, supra, in which the dissenters argued vigorously that the pertinent language in Gray was dictum, and took the position now taken by the majority, saying that an act requiring the payment of excess fees into the county treasury constituted a legislative determination that the commissions of the collector and treasurer fixed by general statute were a reasonable exaction to cover the expenses of collecting and handling the taxes. This case directly involved an excess fee situation because the act involved required the payment into the county general fund by all county officials of all fees and commissions in excess of the respective salaries and fees allowed them by a special act of the General Assembly. Any idea that the school districts ever lost, even temporarily, their interest in these funds while in the hands of the county officials is dispelled in the opinion in that case, when the court said:

Before the present law was passed, the commissions allowed for the collection and handling of school funds raised by taxation were paid out of such funds. Indeed, they are a part of such funds. * * * The Legislature is wholly without power to command that fees, emoluments, and commissions, allowed for the collection and handling of school funds by the county officers, be covered into the county general fund.

We recognized in Austin that the payment of a just proportion of the cost of the collection of taxes levied for the support of schools was not a diversion of the taxes, but held that withholding any excess over the just proportion of these funds was an unconstitutional diversion. We said:

Certainly the school fund should not be made to bear more than its just proportion of the salaries of the collector and treasurer. This fund, however, should be required to bear its just proportion of these salaries. To so require would not be a diversion of such fund, because the school fund must be collected and paid into the treasury, and must be handled and disbursed after it is covered into the treasury. So the act of the officers in collecting and handling the school fund is germane to the purpose for which it is raised.
Therefore the county court, in determining the excess of commissions to be credited to the school fund, should apportion or prorate the amount to be paid by the school fund toward the salaries of the collector and treasurer in the proportion that the total amount of the school fund collected and disbursed by these officers for one year bears to the total amount of all funds raised by taxation for that year; that is, by taxes for county, state, municipal, school, road and all general taxes, for these come within the purview of article 2, § 23, and article 14, § 3, and article 16, § 11, of the Constitution of 1874.

Any infirmity that might be attributed to this decision because of the sharp division of the court and the majority’s adoption of dictum from a previous case was dispelled by the unanimous decision in Terry v. Thornton, 207 Ark. 1019, 183 S.W. 2d 787, in which one of the Austin dissenters participated. There Austin was directly attacked as unsound. In Terry, the initiated salary act endeavored to do just what the majority opinion does, i.e., make the excess fees from tax collection bear the burden of unpaid expenses of unrelated governmental agencies. This was to be accomplished by placing the excess of fees, costs, and commissions over and above salaries of the county officers into a sinking fund to retire outstanding warrants. The court meticulously reviewed and examined the Austin decision and affirmed and adhered to it.1

These cases seem to me to be clearly indistinguishable. As the court said in Crowell v. Barham, 57 Ark. 195, 21 S.W. 33, confusion only arises when two offices are held by one person. But that confusion has been completely dispelled by subsequent decisions.

There can be no doubt that the office of sheriff and the office of collector have uniformly been held by this court to be two sepatate and distinct offices for all purposes even though held by one person. None of the language of any of these decisions is dictum, as, in each instance, it was necessary to the conclusion reached by the court. In McCabe, Ex Parte, 33 Ark. 396, we said:

The relator, under existing laws, holds two offices; he holds the office of sheriff, and Ixe holds the office of collector. They are distinct offices though held by the same person, and he is required to give bond as sheriff, and also to give bond as collector.

In Falconer v. Shores, 37 Ark. 386, we repeated:

A person who is sheriff and collector, under existing laws, holds two distinct offices, and is required to give bond as sheriff, and also to give bond as collector.

Then in Crowell v. Barham, 57 Ark. 195, 21 S.W. 33, we reiterated:

The offices of sheriff and collector, though usually exercised by the same person, are as separate and distinct as though held by different incumbents.

The earlier authorities were followed in State v. Landers, 183 Ark. 1138, 40 S.W. 2d 432, where we said:

We think that he is necessarily only one officer but holding two separate and distinct offices, until such time as the Legislature sees fit to separate them. * * * The sheriff by virtue of being sheriff holds the office of collector. Until the Legislature sees proper to separate the offices of sheriff and collector and require them to be filled and the duties performed by separate persons, we think the plain provisions of both the Constitution and the statute are that the two offices shall be filled by one officer and that he is entitled to receive for performing the duties of both offices only the net compensation fixed by the Constitution for one officer. Article 19, § 23.

See also, Marshall v. Holland, 168 Ark. 449, 270 S.W. 609.

We have never deviated from this, position. Therefore, the sheriff is only one officer and his total compensation is limited to $5,000 by Article 19, § 23. State v. Landers, supra. He may receive this total from the net fees of both offices, and if there are not sufficient fees remaining after payment of expenses incurred in the discharge of one of the offices to pay the amount of that compensation proportionate to the fees collected in that office, the balance may be charged against the other. State v. Harman, 190 Ark. 621, 80 S.W. 2d 619. But in Harman, decided more than 35 years ago, we laid to rest any idea that the fees or expenditures of one office have any relation to the other. There has been no relevant constitutional or statutory change since that date.

The most patent error in the majority opinion is in the unfounded assumption that Ark. Stat. Ann. §§ 12-1805 and 12-1807 (Repl. 1968) may be complied with by a single statement charging the expenditures of both offices against the total fees from both and that fees are in excess of constitutional limits only when the fees from both offices exceed the expenditures from both. These two sections were a part of Act 47 of 1875 and a part of the enabling act putting Article 19, Section 23 into execution. See State v. Landers, supra; Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380. As pointed out in Griffin, the act was enacted by the first legislature which convened after the adoption of the Constitution of 1874, and which included many members of the Constitutional Convention.

The first section of this act requires each officer of a county to keep a record book in which shall be entered an account of all moneys received by him in payment of fees or by way of emoluments pertaining to “his office.” Ark. Stat. Ann. § 12-1801 (Repl. 1968). The officers of each county are required by Ark. Stat. Ann. § 12-1805 to report to the circuit judge the total amount of money received by such officer during the preceding year, on account of “such office” whether from salary, fees or other emoluments or perquisites of office. This report must be made in any event and not just when the total fees exceed the expenses plus $5,000 as stated in the majority opinion. Under Ark. Stat. Ann. § 12-1807, if the total receipts of “the office” (not the officer) exceed $5,000, then the officer must report the amount expended by him in the conduct of the business of “his office” for the year, and all such expenditures as are approved by the examining,judge are to be deducted from the gross receipts and the balance in excess of $5,000 is to be paid into, the treasury of the county.

Any question about the necessity of separate reports for the two offices was laid to rest in State v. Harman, 190 Ark. 621, 80 S.W. 2d 619, when this court said:

* * * the fees collected and the expenditures incurred in the discharge of the office of sheriff have no relation to the office of collector, and vice versa. Accordingly, the one holding the office of sheriff and ex officio collector should prepare and file separate statements of account of the fees and disbursements of each office, and where any liability exists for failure to account and pay into the treasury excess fees collected as sheriff, the sureties on the collector’s bond are not liable; and, in cases where the fees are collected by the sheriff as ex officio collector of revenues, the sureties on his bond as collector are liable and not the sureties on his bond as sheriff.

The majority seems to omit the conjunction “and” between the word “office” and the word “where” in the first clause of the last sentence, and arrive at a conclusion that separate statements for the separate offices are not required except when there is a question as to the liability of sureties on the official bonds for the separate offices. I submit that the language as written cannot properly be so construed.

When a constitutional provision or a statute has been construed and that construction consistently followed for many years, such construction should not be changed. O'Daniel v. Brunswick-Balke Collender Co., 195 Ark. 669, 113 S.W. 2d 717.

I submit that no reason for changing either the construction or application of the pertinent constitutional and statutory provisions by a long line of decisions has been shown, even though I might arrive at a result more pleasing to me if the whole subject had never been considered. I feel compelled to adhere to the original opinion.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Jones join in this dissent.

In treating a similar constitutional limitation in the same article, we held that action of diversion may not be done by indirection when it is prohibited to be done by direction. Walls v. State Board of Education, 195 Ark. 955, 116 S.W. 2d 354.