concurring and dissenting. I concur in the result because the chancellor found the retirement of these bonds included the pledging of hotel and restaurant taxes, thereby bringing the case within the caveat announced in Purvis v. Hubbell, Mayor, 273 Ark. 330, 620 S.W.2d 282 (1981) and, hence, requiring an election. Beyond that, I respectfully disagree with the majority.
By this decision the court is overruling a line of cases which began with McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W. 1037 (1932), and was quickly followed by Jernigan v. Harris, 187 Ark. 705, 187 S.W. 705 (1932) and Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). The rule, as stated in Snodgrass, is that revenue bonds for a public purpose may be issued without an election so long as the bonds are not an obligation of the taxpayers but are paid solely from funds generated by the facility built or acquired with the proceeds of the bonds.
That principle has been followed unerringly by this court for over fifty years and has been approved by scores of individual members of this court. Without saying so, the court has today overruled Snodgrass v. Pocahontas and swept away a host of cases dealing generally or specifically with the principle: Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936, 669 S.W.2d 900 (1984); Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984); Purvis v. Hubbell, Mayor, 273 Ark. 330, 620 S.W.2d 282 (1981); Holmes v. Cheney, 234 Ark. 503, 352 S.W.2d 943 (1962); Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962); McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955); Williams v. Harris, 215 Ark. 928, 224 S.W.2d 9 (1949); Jacobs v. Sharp, 211 Ark. 865, 202 S.W.2d 964 (1947); City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946); Robinson v. DeValls Bluff, 197 Ark. 391, 122 S.W.2d 552 (1938); Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932).
I concede that no court should be powerless to correct bad law, but I contend Snodgrass v. Pocahontas is sound law and should not be overturned. It has stood the test of half a century and the scrutiny of numerous judges. It has been frequently reaffirmed and ought not to be so easily rejected, at least not without more persuasive reasons than are provided by the majority.
In Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633, decided in 1960, the court quoted with approval language from the Snodgrass opinion which the court now holds to be erroneous:
It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.
Less than two years ago in Purvis v. Little Rock, (Purvis II) 282 Ark. 102, 667 S.W.2d 936 (1984), this language was quoted with approval:
This court has approved a line of cases going back at least to the 1932 case of McCutchen v. Siloam Springs, supra, which hold that municipalities may issue pure revenue bonds for purely essential public purposes without holding an election.
Moreover, in a supplemental opinion to Purvis II, five of the seven members of this court pointedly emphasized that the Snodgrass v. Pocahontas holding was not impaired by the Purvis IIdecision. A few months later in Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984), a majority of this court again embraced the principle now being renounced. Justice Dudley’s concurring opinion from Purvis II was quoted approvingly by the majority in Murphy v. Epes:
Our cases constitute a well developed body of precedent, now stretching over half a century, by which this court has consistently interpreted the constitution to authorize governments to incur long term debts, without elective approval, in order to make authorized improvement for public purposes when the debt is to be paid out of revenues. (At p. 522).
Today’s opinion has this to commend it — it provides a solution for the confusion which followed the Purvis I caveat. But that alone does not justify the extreme step taken today when a viable alternative is open, one which, I believe, is consistent with precedent. That is to adhere to the long standing principle of Snodgrass v. Pocahontas, applying at the same time the caveat of Purvis I by requiring an election as to those projects which entail the use of revenues from sources outside the improvement itself to retire the bonds. That, I submit, is what the Purvis caveat was meant to say. True, these taxes are a subordinate, rather than a primary, guaranty, but if the revenues from the Magic Springs project prove inadequate to meet the indebtedness (which appears to be the case), these tax revenues are irrevocably committed. In that respect they pose a liability that the taxpayer alone can authorize under our constitution.
713 S.W.2d 230With respect to the public purpose issue, I respectfully disagree that, the Magic Springs Theme Park is so lacking in a public purpose that the judicial branch should override a legislative decision to the contrary. Those views are discussed in a dissenting opinion in Ft. Smith v. O’Loughlin, decided today, and in general are applicable here!