dissenting. The general purpose of the bond issue stated in the ballot title was “street improvements,” followed by some parenthetically stated specific projects including the ill-fated canal from Faulkner Lake to the Arkansas River. The issue presented is whether the city council can use the money raised by the bond issue for the general purpose stated in the ballot title when one of the specific purposes has been determined infeasible.
Although the court’s opinion quotes the chancellor’s statement that the voters were “misled” by the ballot title, the opinion makes it clear that there was no fraud. I find it objectionable that the opinion recognizes that rhetoric accompanying the proposal and the ballyhoo of the election is irrelevant and yet refers to an “advertisement” as a supporting fact. As the court’s opinion states, quoting Arkansas-Missouri Power Corporation v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), “[t]he ballot title is the final word.”
This case is made especially difficult by the fact that the city segregated $700,000 for the canal project, and that money can be readily identified as that which by ordinance, and not by ballot title, the city intended to spend on the canal. Were it not for the fact that the money can be so readily identified, I suspect this court would not hesitate to follow the general law in this area which permits the city to use the money for a purpose stated in the ballot title. The precedent set here is unfortunate because the next time taxpayers perceive a particular project stated as part of a bond issue ballot title has not been accomplished, and no money has been set aside for it, this case will be cited and someone will have to decide whether the entire bond issue is invalid or, if it is not, just how much money should be returned to the taxpayers as being representative of the omitted project.
Amendment 13 provided that if more than one purpose was stated in the bond issue ordinance the voters be allowed to vote on them separately. In Rhodes v. City of Stuttgart, 192 Ark. 822, 95 S.W.2d 101 (1936), we held that “construction, straightening and paving . . . streets, alleys, and boulevards” was one purpose and that Amendment 13 did not require each item to be stated separately. Perhaps the bond issue in this case could have been challenged as stating separate purposes if building the canal was so unrelated to street improvements as to constitute a separate purpose requiring a separate vote. It was not so challenged, and that is not the issue here.
In Arkansas-Missouri Power Co. v. City of Rector, supra, the ballot title informed the citizens that the $65,000 to be raised would be used to construct an electric power plant. It turned out that no power plant could be constructed for that amount, and the intent of the city authorities had been to combine the money raised with additional sources of revenue to construct a much more expensive plant. We held there had been an illegal exaction because “the cost of the proposed public improvement as stated in ballots used in a special election in reference thereto is a limitation upon subsequent official acts based upon a favorable vote.” 214 Ark. at 656, 217 S.W.2d at 338. The testimony recited showed that the voters had been intentionally misled because city officials had not even attempted to establish the actual cost of the power plant prior to bringing the bond issue to a vote.
This case does not present a situation analogous to that in the Arkansas-Missouri Power Corp. case. Here there was no evidence of intentional misleading. If there were, it would be incumbent on us to declare the entire bond issue invalid rather than some part of it which, but for the fortuity of the ordinance segregating the canal money, would be undefined.
There is no Arkansas case exactly on point. Perhaps the closest I have found from other jurisdictions is Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149 (1971). The city sponsored two bond issues. One was for construction of a new auditorium, and the other was for construction of a new arts center. By the time the election had been held and the plans made, costs had risen to the extent that both projects could not be done with the money raised. The city council decided to use the money to make one project instead of two by renovation of its old auditorium building into an arts center and adding a new auditorium to be connected to the old building. A taxpayer complained, and the Supreme Court of North Carolina held that the change was permissible because it was done to accomplish the general purpose of the two bond issues.
The North Carolina court quoted language from a leading treatise on municipal corporations which now appears at 15 E. McQuillen, Municipal Corporations, 43.68 (3rd Ed. 1985):
A law authorizing a bond issue for various purposes which does not declare what proportion of the proceeds of the bonds shall be applied to each specific purpose is not void. Such matter may properly rest within the sound discretion of the municipal authorities.
The court then quoted from a number of decisions from other jurisdictions as well as from earlier North Carolina cases. I need not repeat all of them here, but a typical quotation is:
“It lies within the sound discretion of the legislative body of the City *** to decide whether to proceed with one of the projects, even though there would be insufficient funds to proceed with the other project. *** [T]he legislative body of the city *** is not subject to the control of the courts in the absence of an abuse of discretion, fraud, or collusion.” Krieg v. City of Springfield, 92 Ohio App. 436, 106 N.E.2d 652 (1952).
I find nothing at all wrong with using the $700,000 plus the accumulated interest for street improvements in the Rose City area which would presumably have benefitted from the canal. Such a holding would not mean that a city government could hoodwink voters by intentionally promising that which it had no intention of delivering. Again, that is not an issue in this case, and I fear the precedent we will set by returning the bond money to the taxpayers instead of allowing it to be used for a purpose stated in the ballot title will haunt us. While the disappointment of those who hoped for the construction of the canal is understandable, I conclude that the city’s proposed use of the bond money for one of the purposes stated in the ballot title does not constitute an illegal exaction.
I respectfully dissent.
Hays, J., joins in this dissent. JANUARY 16, 1990 Jim Hamilton, City Attorney, by: Francis D. Crumpler, Jr., for appellants. Mitchell and Roachell, by: Richard W. Roachell, for appellees.