dissenting. The majority tries to distinguish Hartwick by surmising that the bond issue there may have been paid in full and the tax collections may have ceased by the time the taxpayers brought suit to obtain a refund for the one purpose, a drainage canal, which had not been constructed because it became infeasible. Even if the majority court’s guesswork in reading this assumption into the Hartwick opinion were true, it fails to answer the issue here. Nor is an answer to the issue here found in the majority’s recital that Hartwick stands for the proposition that an illegal exaction occurs when a primary purpose of a tax cannot be accomplished.
Here, the trial court made no finding that Fayetteville voters were misled and to the contrary, it spelled out in its order that the ballot contained twenty-two separate issues and the voters voted separately on each one. Yet, the majority in this appeal makes the finding of fact that the Fayetteville voters were misled. The court mentions no evidence to support its finding because there is no such evidence. Again, I suggest the Fayetteville voters read and understood the ballots which separately reflected each construction project issue and the exact amount each project would cost. If any project failed — as was the situation in Hartwick — the taxpayers would be effectually refunded that amount. If the monies were already collected, the funds would be remitted. If such funds had not yet been collected, then the court would enjoin collection of that portion of the sales tax required to pay the debt service on the failed project. In any event, like in Hartwick, this court’s decision finding the $10 million construction of education facilities illegal should not impair the other improvement projects, especially where, as here, the voters separately voted and approved each issue. The court should limit its holding to enjoining the collection of that portion of taxes required to pay the debt service on the $10 million improvement project for the school district.
Although Justices Hays and Newbern took a more expansive view than did the majority in Hartwick, I think the concerns they expressed in their dissent are worth repeating here. Therein, they expressed their beliefs that North Little Rock should still be allowed to use the funds that the voters approved for the canal project for the other purposes stated in the ballot title. My colleagues Hays and Newbern wisely expressed their fear that the Hartwick decision might be misapplied in the future. They stated the following:
[W]e 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 [we] 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, [we] 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.
This court has in the present case misapplied the Hartwick holding in a manner I find worse than Justices Hays and Newbern predicted. We should correct our error now, not later, by granting the appellees’ petitions for rehearing.
Hays, J., joins this opinion.