dissenting, with whom Leelar and Dunaway, JJ., concur, dissenting. On the surface the majority decision seems to be favorable to the taxpayers, since it orders a refund of money that would otherwise be spent for municipal purposes. But the practical effect of today’s decision is to order the useless and wasteful expenditure of public funds that may well amount to hundreds of thousands of dollars. I am not convinced that in adopting Amendment 13 the people intended such extravagance.
This amendment, adopted in 1926, authorized bond issues for at least twenty municipal purposes. Almost every city in the State has bonds outstanding under this amendment. The majority decision may apply also to county issues under Amendment 17, as that amendment contains about the same language as that now relied on by the majority. Nearly all our counties have issued bonds under Amendment 17. Both amendments contemplate long-term issues, which are only now beginning to mature. Within the next ten or fifteen years hundreds of these issues will at last be retired. This means that practically every city, and perhaps the counties as well, will suffer from today’s decision.
For in every instance there will be a surplus in the bond fund when the last bond is paid. It is manifestly impossible to levy an ad valorem tax that will produce to the penny the sum needed to pay principal and interest. If the bonds are to be sold at par a margin of safety must be allowed for changes in assessed values and for delinquencies in tax payments. That margin of safety makes a surplus unavoidable. The only real question in this case is what should be done with these surpluses.
Four members of the court conclude that these funds must be returned to the taxpayers whenever any taxpayer’s claim can "be regarded as substantial.” Of course in every city or county there will be at least one public utility company or other large taxpayer whose claim may fairly be said to be substantial. Hence the practical effect of the opinion is to order a refund whenever the cost of the refunding process cannot be expected to consume the entire surplus.
In many cases the expense involved in this refunding procedure will he staggering. Pulaski County, for example, has over 90,000 separate real property assessments and over 60,000 personal property taxpayers. An audit must first be made to determine the exact amount of more than 150,000 separate refunds. Next, the names and addresses of the taxpayers must somehow be ascertained. Many of them will have died; their heirs must be identified. Others will have moved away; their whereabouts must be traced. But this is not all. After an investigation that must invariably extend over a period of years there is still the matter of writing 150,000 checks, addressing that many envelopes, and affixing stamps that will themselves cost over $4,500. And even then, what has been accomplished? An insignificant number of taxpayers will receive refunds of a few dollars apiece, if that much is left after the costs have been charged against the fund. But the overwhelming majority of the taxpayer's will receive a few cents each — often not enough to pay for the stamps and stationery that bring them their checks. It is easy to see that dollars must be spent to refund pennies. Naturally the problem is not equally serious in the less populous communities, but likewise the surplus to be wasted will then be relatively smaller.
It is perfectly clear that the majority decision is inconsistent with its own major premise. That premise is that the surplus funds can be used only for the specific purpose for which the tax was levied. ' But as a result of this opinion far more than half of these funds will be diverted from the original purpose, to be dissipated in the wasteful refunding operations. These taxes certainly were not levied for the purpose of being thrown away with hardly any benefit to the city or its citizens.
If the language of Amendment 13 were so mandatory that the conclusion reached by the majority could not be escaped, then I should be compelled to agree that this court would be powerless to remedy-an unfortunate situation. But it seems to me that the plain intent of the amendment is contrary to the decision now announced. The fundamental aim of Amendment 13 is to enable cities to issue bonds for a wide variety of municipal activities. The clause forbidding the use of tax money for purposes other than that for which the tax was levied was obviously inserted to insure the marketability of the bonds, by providing the bondholder with a certain recourse in the event of default. When the bonds have been retired the whole objective of this clause has been satisfied.
Finally, the case of Oak Grove Consol. Sch. Dist. No. 9 v. Fitzgerald, 198 Ark. 507, 129 S. W. 2d 223, cannot be distinguished from the case at bar, even though the majority say that it supports their conclusion. There we construed language in Amendment 11 that is in substance identical with that in Amendment 13. The school district had levied an annual tax of seven mills for the specific purpose of paying bonds that had been issued to borrow money for a building program. That case is even stronger than this one, for the bonds had not yet been paid in full, as is the case here. There was, however, a surplus in each year that was not needed for current maturities. In holding that the constitution did not prevent the use of these annual surpluses for other school purposes we said: “The 7-mill tax was devoted to the purpose for which it was levied, and has accomplished that purpose. An excess of revenue remains after that purpose has been accomplished, and we perceive no reason why this excess may not be used for either of the other two purposes for which school taxes may be levied.” So here, the purpose of this tax levy was accomplished when the bonds were paid. The city proposes to use the surplus for additional work on the streets, which is the exact end for which these taxes were levied. It is clear that the language of Amendment 11 has been construed to mean one thing and that of Amendment 13 to mean exactly the opposite. Apparently a test case will yet be needed to determine which of these conflicting interpretations shall be applied to Amendment 17, dealing with county issues.