The emergency clause attached to Act 187 of the Acts of 1943 was not adopted. This resulted from the fact that the majority vote for the act was sufficient to pass it, but was not sufficient to adopt the emergency clause. A majority vote suffices for the first purpose, while a two-thirds vote of all the members elected to each house of the General Assembly is required for the second. But the presence of the emergency clause is not without significance. It manifests the purpose and intent of its promoters to make the act effective at the earliest possible date, which intent was abortive, because the vote required for the adoption of the emergency clause was not secured.
We have, therefore, an act without an emergency clause, which, under the provisions of Amendment No. 7 to the Constitution, became effective 90 days after the *Page 486 adjournment of the session of the General Assembly at which it was passed.
When did this act become effective? When does any act become effective? The answer would appear to be that it became effective when it became a law, and it is not questioned that the act became a law 90 days after the adjournment of the General Assembly which passed it, the date of adjournment being March 11, 1943.
At 48 of the chapter on Statutes, 25 R.C.L., p. 799, appears this statement of the law: "Provisions Postponing Time of Taking Effect. It is a principle self-evident, as well as declared in all the authorities on the subject, that statutory provisions go into immediate operation, unless by force of some general law, constitutional provision, or provision contained in the act itself, the operation is postponed to some future period or event; and the special provision which would create such postponement must be stated in express words to that effect, or in terms so clear and certain as to admit of no other rational interpretation."
Stress is put on the fact in appellant's brief that Act 386 of the Acts of 1941, which Act 187 of the Acts of 1943 amends, became effective July 1, 1941, thereby making the fiscal year for the disbursement of funds (for raising which Act 386 provides) begin and end July 1st of each year.
Act 386 did become effective July 1, 1941; but this was true because 21 of that act so expressly provided. And why was that provision inserted? The answer is, to prevent the act from being effective from and after its passage upon any date prior to July 1, 1941.
Now, Act 187 contains no such provision. It contains a contrary provision. Section 4 of Act 187, which immediately precedes what would have been the emergency clause, had it been adopted, provides that "all laws and parts of laws in conflict herewith are hereby repealed and this act shall take effect and be in full force and effect from and after its passage." This section 4 became, and is, a part of the act, and is as effective as any other portion of it, although the emergency clause was *Page 487 not adopted. It is true the absence of an emergency clause postponed the date on which the act would be effective for a period of 90 days after the adjournment of the session of the General Assembly which passed it; but there is nothing else which postponed its effective date beyond that time. It appears to us, who dissent from the majority opinion, that Act 187 has been in effect as a law since June 10, 1943, the date which marks the 90 day period after the adjournment of the 1943 session of the General Assembly.
If so, what then? The answer is, that after that date Act 386 should be read as though Act 187 had been a part of Act 386 when that act was passed. Southerland on Statutory Construction, 237.
It is argued that this would change the fiscal year from the beginning which Act 386 provides, which date is July 1st. It may be answered that the General Assembly had the power to change the fiscal year, had it elected to do so, but it must first be said that Act 187 does not change the fiscal year.
What Act 187 does, and all it does, is to add another beneficiary to share in the distribution of the funds which Act 386 authorizes to be collected. It did not attempt to set up a new fiscal year, and it did not attempt to change the scheme of allotting funds on a fiscal year basis. Now, Act 187 will affect the apportionment of funds, which would otherwise have gone to other beneficiaries, but it does not affect funds collected before the act became a law. The cities, counties and towns of the state, the new and additional beneficiaries, seek to share only in the funds collected after the act became effective as a law. It is stipulated "that the sum of $700,000 was collected under Act 386 and turned over to the State Treasurer, during the 21 days of June, 1943," and it is in the distribution of this fund which it is stipulated was collected after the act became effective, in which the cities, counties and towns seek to share in the proportion provided by the act. There is another provision of Act 187 which should not be ignored, but which on the contrary is significant and, in our opinion, is of controlling *Page 488 effect. In providing for the participation of cities, counties and towns in the distribution of this fund, the act recites that "The State Treasurer is hereby directed to create a fund to be known as the `Cities and Counties Fund' and the remaining 5 per cent. thereof shall be paid into said fund until $400,000 is paid into said fund for each fiscal year or part thereof."
Now, in Act 187 the General Assembly set up a scheme of allocation to endure through the entire succeeding fiscal years, and certainly until the act might later be amended, and this provision for participation for a partial year could only have been intended to apply to the cities and counties fund. It was unnecessary for any provision to be made for the participation of the other beneficiaries for a part year, as provision had otherwise and previously been made for them, which was not on a partial year basis.
The cases of Collins v. Humphrey, 181 Ark. 609,27 S.W.2d 102, and Cone v. Hope Imp. Dist., 169 Ark. 1032,277 S.W. 544, are to the effect that there has been here no diversion of funds in violation of the constitution.
We concur in the view that it was error for the court to order the fund here in question to be paid to the clerk of the Pulaski chancery court for distribution by that official, but, for the reasons herein stated, we dissent from the holding that the cities, counties and towns do not have the right to share in the distribution of the funds turned over to the State Treasurer during the last 21 days of June.
I am authorized to say that Justice ROBINS and Justice McFADDIN concur in the views here expressed.
McFADDIN, J. (concurring in denying petition for rehearing on February 7, 1944).
In a splendid and exhaustive brief on rehearing the appellees have urged:
"(1) Distribution of the sales taxes to the cities and counties fund on the basis of receipts by the Commissioner of Revenues rather than on the basis of receipts by merchants making the sales is not an unlawful *Page 489 diversion of taxes under Article 16, 11 of the Constitution.
"(2) The court erred in holding that this was not a class suit out of which a reasonable attorney's fee could be allowed."
And under the second point above appellees have argued:
"A. This is a class suit.
"B. The allowances of attorney's fees is proper.
"C. The beneficiaries of the cities and counties fund are not exempted from paying a reasonable attorney's fee."
Over half of the brief is devoted to these last two points, being B and C, as above listed.
I still adhere to the views stated in the dissent by Mr. Justice FRANK SMITH and concurred in by Mr. Justice ROBINS and myself. But since so much emphasis in the rehearing brief has been placed on the question of the attorney's fee, I explain here why I think the court is correct in denying the petition for rehearing on this point.
Most of the cases cited by the appellees are cases where various parties leave come into court and affirmatively sought relief and then have been held liable for attorney's fees. In the case at bar the only litigant which came into court was the city of Little Rock. The other cities in Arkansas, and all of the counties, never made any appearance in this case; so cases where parties came into court are not in point with the situation here. The question here is whether the counties of Arkansas and all the cities other than Little Rock should each be assessed attorney's fee in absentia.
Even if it be conceded that this is a class suit under 1314 of Pope's Digest (which is not conceded), still the only attorney's fee that could be awarded in this case is the fee that the city of Little Rock paid to its counsel in this case; and there is no evidence that there was any fee agreed to be paid by the city of Little Rock. *Page 490
Appellees cite and rely on the case of Sprague v. Ticonic National Bank, 307 U.S. 161, 83 Law Ed. 1184. That case, and the orders of the district court on remand (as found in 28 F. Supp. 229) illustrate thoroughly my views. There, Lottie F. Sprague employed attorneys and recovered approximately $5,000 for herself; and through her efforts and the application of the doctrine of stare decisis, fourteen trust funds likewise benefited. Against the funds created through her suit, Sprague sought to have taxed as costs the amount she had actually paid her attorneys. In other words, she sought reimbursement of her expenses from the trust funds that had benefited from her efforts. The United States Supreme Court spoke of it as "the petition for reimbursement" and allowed it as such; and on the remand the United States District Court (Sprague v. Ticonic National Bank, 28 * Fed. S. 229) allowed Mrs. Sprague to prove that she had actually paid attorney's fees amounting to $1,214.51, and she was reimbursed to that amount. It is thus apparent that reimbursement for the amount actually paid out in attorney's fees is the basis for taxing attorney's fees as costs as in a class suit.
Applying this case from the United States Supreme Court to the case at bar would mean that the city of Little Rock could recover in this case only the attorney's fees that it has actually paid out in this case. But as I understand the brief filed herein, the attorneys are seeking a fee based on the entire recovery for all the cities and towns even though they never came into court. In my opinion, the case cited by the appellees does not sustain the contention here urged, which is far different from the theory of reimbursement.