concurring. I concur in the reasoning and result reached in the majority opinion. However, I concur to implore the General Assembly to resist future pressure to enact special and local legislation. It is not basically the fault of the General Assembly that such legislation is enacted. It is more the fault of special interest groups because it is they who generally initiate such special and local legislation through their lobbying efforts. However, the General Assembly can stop this practice by rejecting such proposals.
If the members of the legislature would simply refuse to consider such bills, it would save much of their time and a great deal of the taxpayers’ money. The people still retain the constitutional right to initiate and refer matters to the voters for consideration. In my opinion, that is the manner in which changes in local government ought to be handled. What could be more democratic than allowing the people in the counties and cities to control their own affairs to the fullest extent possible?
I had intended to end this concurrence with the two paragraphs above. After rereading the majority opinion and the concurring and dissenting opinions, I am compelled to add to my concurrence.
On October 5,1926, the people of Arkansas voted 80,500 to 44,150 to adopt Amendment 14 which simply says:
The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.
Slightly more than two years later this court was called upon to interpret this amendment and declare an act of the General Assembly unconstitutional. In the case of Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929), this court reviewed the history and purpose of Amendment 14. This court stated in Webb that the legislature had so disregarded the power to enact local legislation that the people took it upon themselves to remedy the situation. The court, speaking of the reason for enactment of Amendment 14 stated:
Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the state were excepted, and this amendment was adopted to remedy the evil, and the power of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special act.
The Webb case concerned a general sounding act that had been passed by the General Assembly applying to all of the counties in Arkansas. However, there was a provision which stated: “The provisions of this act shall in no way apply to or affect Gosnell Special School District in Mississippi County, Arkansas; provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp Counties.”
The opinion in the Webb case contained a sentence which could not be improved upon for the opinion in the present case. The first sentence of the opinion by Justice Kirby stated: “The act appears, from its title indicating the purpose and its terms, to be general . . . .” The opinion continued by stating:
Amendment No. 17 [sic] reads: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” The language of the amendment is plain and unambiguous, and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the constitution on the legislative power relative to the passing of local or special legislation, leaving its exercise to the discretion of the Legislature, had been so disregarded and abused as to create an intolerable condition.
The court went on to hold that the act of the legislature excepting the Gosnell Special School District and Faulkner and Sharp Counties from it rendered it special legislation and thereby invalid. The Webb opinion was so well written and so clearly reasonable that I again quote from it as follows:
If two counties and a special school district can be excepted from the provisions of a law otherwise general and operative equally and uniformly throughout the whole state, there would be no reason to say that twenty-five or fifty counties or seventy-four of the seventy-five counties of the State could be so excepted, leaving its application as a general law to but one county, abrogating by legislative determination and judicial construction the Constitutional Amendment prohibiting the Legislature from passing “any local or special act.” The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute.
Two years later this court decided the case of Simpson v. Matthews, 184 Ark. 213, 40 S.W.2d 991 (1931). The act of the legislature under attack in the Simpson case applied to “counties which now are or hereafter may have a population of 75,000 inhabitants according to the last federal census.'1'’ There, as here, the act applied only to Pulaski County. The Simpson opinion clearly stated that classifications of counties and municipalities, according to population, might be reasonable, but to do so it must bear a reasonable relation to the subject of the legislation. The opinion was careful to point out that there must be something more than mere designation by population before such classification may be considered valid. The court stated:
The marks of distinction on which the classification is founded must be such, in the nature of things, as well, in some reasonable degree at least, account for or justify the restriction of the legislation.
Our opinions up until this time have generally held that the conditions attached to legislation must act uniformly upon all of its class and all of the conditions should be appropriate to accomplish the purpose for which the legislation was enacted. Much special legislation has been passed even after the people adopted Amendment 14. The Simpson opinion stated:
Judging from much recent legislation in this State, it would seem that the impression is prevalent that because classification on the basis of population may be proper for the purposes of legislation on certain subjects, therefore any classification on the basis of population is appropriate for the purpose of legislation on any subject. The sooner the minds of legislators and others are disabused of this erroneous impression, the better; for under any such rule the provisions of the Constitution against special legislation would become wholly nugatory. If it is permissible to adopt for any and all purposes a classification founded upon any and every arbitrary and illusive basis of population, we might have as many acts, general in form, but special in fact, as there are counties, cities, villages, townships, wards, and school districts in the State.
This court again considered a special act in the case of Humphrey, State Auditor v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954). There we held that Amendment 14 was intended to prevent arbitrary classifications based upon no reasonable relation between the population and the subject matter of the act. Again, the court repeated that this court will look to the substance or practical operation of an act rather than to its title and form in considering its real operation. The act in question in the Humphrey case applied only to counties having a population of less than 6,000. Only Perry County met this distinction. Justice McFadden, in the Humphrey opinion, quoted from Webb v. Adams, supra, as follows:
The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute .... The courts look to the substance and practical operation of a law in determining whether it is general, special or local, and if its operation must necessarily be special or local, it must be held to be special or local legislation, whatever may be its form. ... A local law is one that applies to any subdivision or subdivisions of the State less than the whole. ... A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing, those upon which, but for such separation, it would operate.
One of the basic facts in the Humphrey case was highlighted by the following questions and answers from a witness which are stated as follows:
QUESTION: Would you know of any reason why that differential in population would make Perry County need a vocational school more than Montgomery County?
ANSWER: None.
QUESTION: And there would be no reason for Perry County having any special need over these counties that have a few more population than Perry County?
ANSWER: I wouldn’t know of any, no, sir.
Turn these questions around slightly in the present case and ask why Little Rock needs this act more than the others with a different population and the answer is bound to be — there is no reason. There is no reasonable or rational basis for the classification by population of the cities as to the form of government they have. In the present case population gerrymandering is more conspicuous than was the geographical gerrymandering which caused the revolution in the law known as “one man one vote.” All citizens are entitled to be heard on matters concerning their form of government. Allowing only some citizens to be heard will not suffice. Democracy does not start at 16,000 or 100,000.
A law is general when it operates on all counties, cities and towns alike, but it is special when it arbitrarily separates some person, place or thing from those upon which it would apply except for the exception. Laman v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961). The legislation in the Laman case applied only to cities having a population over twenty thousand in a county which had a population over fifty thousand. The way it was worded it applied only to the city of North Little Rock. We held the act unconstitutional.
From early times our opinions have all recognized that in making a determination of whether an act is general or special, we look to the substance and practical operation of the legislation rather than its title, form and phraseology. Burrow v. Jolly, 207 Ark. 515, 181 S.W.2d 479 (1944). We struck down an act of the legislature which attempted to enact a law in counties having a population between 10,275 and 10,290 in the case of Wilson v. State, 222 Ark. 452, 261 S.W.2d 257 (1953). The present law mimics the population gerrymandering which was found to exist in Wilson. Another opinion of this court struck down a law which applied to only one county in a two county judicial district. Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).
We have likewise struck down an act of the General Assembly applying to counties having a population of 10,200 to 11,000, according to the last federal census. The act applied only to Searcy County. Hensley v. Holder, 228 Ark. 40, 307 S.W.2d 794 (1957). Another act applying only to Pulaski County was struck down in City of Little Rock v. Campbell, 223 Ark. 746, 268 S.W.2d 386 (1954). We have also struck down legislation applying to certain municipal employees in counties having a population of over 150,000. See Special Board of Trustees v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981).
In my opinion the case of Knoop, et al. v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), is dispositive of this case. The legislature had enacted legislation affecting the election of mayor in cities having a population of over 100,000 with the city manager form of government. The act denied the same power to cities having the manager form of government and with populations of less than 100,000. The opinion, written by Justice Frank Holt, properly disposed of the matter in a paragraph which I wish to set out in full:
The mayor in a city, regardless of its size, having a city manager form of government merely presides at board meetings, is recognized as head of the city government for ceremonial purposes, and signs all written agreements on behalf of the city. § 19-708(b). These powers are not altered in any way by Act 539. They are the same whether the mayor is elected by the directors or by the direct election with a majority vote. In the absence of some reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not to others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks after the general election. Consequently, we must hold that Act 539 is special legislation which contravenes Amendment 14. We deem it unnecessary to discuss appellant’s additional argument that the act is local legislation.
Another special legislation case was decided by this court in Ferguson v. Brick, 279 Ark. 288, 652 S.W.2d 1 (1983). In the Brick case the legislation purported to apply only to cities having a population between 57,000 and 61,000. It was clearly unconstitutional. Shortly following that we decided the case of Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984). Special legislation in that case involved creating a municipal court in counties having a population of 26,500 to 28,000. Obviously only one county was affected by the legislation and we unhesitatingly declared it special legislation in violation of Amendment 14.
There are some cases when the population classification has been allowed to stand. In Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959),weallowedastatuteto survive which applied to cities of over 50,000 and were governed by the mayor-council form of government. In my opinion that is as far as this court has ever gone in upholding legislation based upon population. Even so it applied to all cities having a population of more than 50,000 and retaining the democratic form of government.
I cannot believe that the electors of any one city in the state of Arkansas are any smarter than the electors of another city. Neither the geographical size nor the population has any bearing on the intelligence of the citizens nor their right to vote for a representative form of government. It is my opinion that the constitution requires members of the city council or board of directors to be elected by the voters in districts and the mayor to be elected by the voters of the entire city. I see no reasonable basis or legitimate state purpose in classifying cities into separate categories for the purpose of exercising their right to vote for their representatives.
Neither the duties of the mayor nor those of the board of directors would be any different if the present act were upheld. Therefore, the Knoop case would clearly require that the legislation be held invalid. Since there is no reasonable purpose in using population as the basis for this type of gerrymandering, if this legislation is upheld, it must qualify on some other ground. The only other possible argument supporting this legislation is that it creates equality among the voters by giving the black residents of Little Rock an opportunity to vote on certain positions. If that is the case why not give them more opportunity and allow all of the directors to be elected by district.
The parties to this action have again waited until the last minute to appeal, thereby forcing this court to hurriedly dispatch its opinion. This same situation repeats itself every two years. Therefore, it is no wonder that our opinions are not unanimous. It is time that we return to fundamental constitutional precepts.
One provision of Act 840 exempted cities with a population of between 16,000 and 16,700, which applied only to Benton, Arkansas. Another one exempted governments formed under Act 498 of 1973, which included only Fayetteville.