dissenting. The lengthy and complex majority opinion boils down to the following simple issue: Did the citizens and voters of Fayetteville understand they were levying and pledging one penny of the city’s existing local sales and use tax for a capital improvement program? Four members of this court answer, “No,” and effectively set aside two Fayetteville elections where the voters of that city authorized a penny tax for such purposes. The trial judge and three members of this court say, “Yes, the Fayetteville voters did approve a tax for a capital improvements program.” You, as an interested reader, can decide for yourself merely by reading the two ballots that were presented to the Fayetteville electors at elections held on November 8, 1988, and May 29, 1990.
The first ballot giving Fayetteville voters an opportunity to vote for or against such a one penny sales and use tax for capital improvements was printed on the Washington County General Election Ballot on November 8,1988, and in pertinent part reads as follows:
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As can be seen, all questions on the 1988 ballot were separated from each other by printed lines. The same is true regarding the sales and use tax and capital improvement question and the question pertaining to the school district bonds. The Fayetteville voter could separately vote for or against either of the two questions — the sales tax and capital projects question or the school bonds question. Instead, they voted for both, 60 % in favor of the tax and city’s capital improvements program and 68 % in favor of the Fayetteville School District’s educational facilities program.
Because the issuance of the bonds for school facilities was a primary purpose, the majority court suggests that the inclusion of the school bonds question on the 1988 ballot misled the Fayetteville voters into passing the city’s sales tax and capital improvements program. Such a suggestion is clearly not supported by the record. No such finding was made by the trial court, nor was evidence submitted to support that finding.
The city improvement project was made a part of the sales and use tax question, and that being so, the city improvement program was clearly the primary purpose of any sales taxes approved by the Fayetteville voters. Nonetheless, to avoid any argument that the voters could have been misled as to the purpose of any approved tax, the city placed its capital improvements program before the voters once again and this time in unmistakable detail. The following ballot was before the Fayetteville voters at a May 29, 1990 election:
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As stated above, the city listed the foregoing menu of capital improvements, totaling more than $33 million, to assure the city voters that their one penny sales tax would be utilized for such city improvements, if approved. Obviously, if the voters thought they had been in any misled by their earlier 1988 ballot, they could have voted against any or all of the capital improvements offered them on the May 29, 1990 ballot.1 They did not.
While the parties in this appeal argue a number of issues, the majority opinion reverses the trial court only because the majority court suggests the vote on the tax and the vote on the school district bonds were inextricably linked, and the issuance of school district bonds was a primary purpose of the tax. The court then concludes the school bonds are illegal, and because they are invalid, the sales tax and capital project purposes must also fail. The majority court further suggests the city admits the tax proceeds cannot be used to issue the school bonds approved at the 1988 election.
Again, the sales tax involved here had a two-fold purpose in 1988 — city improvements and school construction — and clearly the capital improvement purpose was primary and approved by the voters, not once, but twice. If any doubt clouded the 1988 vote, Fayetteville voters removed those doubts when they unmistakably approved those city capital projects in 1990.
Finally, I do not read .the city’s argument on appeal to admit the sales and use tax proceeds cannot be utilized to issue the $10 million in school bonds. However, even if such school bonds would be invalid and could not be issued (which I am inclined to believe), that conclusion under the facts of this case does not defeat the sales tax and city capital improvement bonds approved by the Fayetteville voters.
We do Fayetteville voters a real disservice by assuming, without proof, that they did not know what they were doing when casting their ballots at the 1988 and 1990 elections. This case does not involve a city government that, by intention or deed, exercised bad faith or misled the electorate into approving a sales tax and issuance of bonds without first having an intelligible vote on such questions. The voters are entitled to the city projects they approved even though the school district projects may prove invalid. Accordingly, I would affirm the trial court’s decision.
847 S.W.2d 41 John Lile, for appellant. Friday, Eldredge & Clark, by: Larry W. Burks and Jeffrey H. Moore, for appellee Arvest trust Company. Jerry E. Rose, Fayetteville City Attorney, for appellee.If both the city improvements program and school district construction project failed to obtain voter approval or failed for other legal cause, the tax approved by the voters could not be collected and use for any other purpose, and the taxpayers are then entitled to a refund. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989).