concurring. The primary question in this appeal is whether language in the levying ordinance and in the ballot title itself for the 1997 bond issue can be read two ways. I believe it can. The levying ordinance and ballot title read in relevant part as follows:
Levying Ordinance
WHEREAS, the City can finance the Town Center'including incidental expenses and expenditures in connection with constructing and equipping the Town Center and expenses in connection with authorizing and issuing bonds by the issuance of bonds in an amount not to exceed $6,950,000.00(the “Bonds”) under the authority of Amendment 62 to the Constitution of the State of Arkansas ....
Ballot Title
VOTE FOR OR AGAINST the issuance of bonds of the City of Fayetteville to finance the construction of the Fayetteville Town Center as a new, multi-purpose, civic center for meetings, conventions, exhibitions, entertainment events, related uses and parking. The bonds will be issued in an amount not to exceed $6,950,000.00 and for a term not to exceed twenty-two years and will be retired from all or any part of the proceeds of the city’s existing 1% hotel and restaurant gross receipts tax.
Williams argues that this language in the Ballot Tide tells the voter that only $6,950,000 is needed to finance the Town Center. The City claims that neither instrument limits the City to a $6,950,000 price tag. I can read the instruments both ways, and because of this, I conclude that the language is unclear and ambiguous. The question is whether that fact, in and of itself, constitutes an illegal exaction.
This court has recognized two types of illegal exaction: (1) “public funds” cases where there is either a misapplication of public funds or recovery of funds wrongly paid to a public official; and (2) illegal tax cases where the tax itself is illegal. See Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992). The instant case is not an illegal-tax case. Nor does it involve the diversion of funds from one purpose to another, at least with regard to the bond issue. What the voters approved is bond financing of $6,950,000 for the project. The fact that that represented part or all of the money necessary to do the job does not equate to an illegal exaction. Like the majority, I do not view Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), as holding to the contrary. In that case, a lack of clarity was not involved but a deliberate misleading of the voters. The voters were told in the Ballot Title that the “estimated cost” of the electric light plant was $65,000, when in point of fact a week later it was shown to be more than twice that amount. That type of deliberate subterfuge is not evident in the case before us.
Where I disagree with the majority is in its suggestion that the voters should have understood the bonds were only partial financing for the project because the bonds were to be issued in accordance with Amendment 62 to the State Constitution. Reference to Amendment 62 appears only in the ordinance, and that fact appears to me to be irrelevant to our inquiry. I would not require the voting public to have knowledge of the intricacies of the State Constitution, such as Amendment 62, when they vote. What we have said in the past is that it is only the plain language of the Ballot Title that the public should look to for information. See Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998); Arkansas-Missouri Power Corp. v. City of Rector, supra. Indeed, in Daniel, we made it clear that mere references to an Act of the legislature in a ballot title was not sufficient to inform the voters about what they were voting. Here, Amendment 62 was not even mentioned in the ballot title. Yet, somehow the majority believes that the voters should have been aware of Amendment 62 and understood it. That goes way beyond what our cases have said and puts a horrendous burden on the voter. I would adhere to our previous cases and look only to the levying ordinance for the City’s stated purposes and to the ballot title for information to the voter. See Daniel v. Jones, supra.
Where I also disagree with the majority is over the definition of “municipal services,” as referenced in the 1993 levying ordinance for the one percent sales and use tax. The majority concludes that “municipal services” includes capital improvements and building projects. A “service” is defined as “the duties, work, or business performed or discharged by a government official . . . useful labor that does not produce a tangible commodity.” Webster’s Third New International Dictionary, Unabridged p. 2075 (1993). Services such as police, fire, and sanitation services differ qualitatively from capital improvements, such as construction of the Town Center.
The City argues that a Resolution was passed by the City Board on the same day as the 1993 levying ordinance for the one percent sales and use tax which clearly specified that the tax revenues would be used for construction projects. But that information was not part of the levying ordinance, and this court has recently held that City resolutions and other extraneous information cannot supersede the purposes stated in a levying ordinance. See Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). The majority opinion does not rely on the City’s argument regarding the Resolution but, instead, concludes that a building project is a service.
As with the bond issue, the City’s draftmanship suffers from a lack of clarity. Had the term “municipal services” been included in the 1993 Ballot Title, I would reverse on this point. Since it was not, I cannot say that this deficiency in the levying ordinance warrants reversal.
Corbin, J., joins.