Sanders v. County of Sebastian

Jim SANDERS v. COUNTY of SEBASTIAN, Arkansas,
and Bud Harper, in His Official Capacity as
Sebastian County Judge

95-1014                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 20, 1996


     
1.   Appeal & error -- strong presumption in favor of validity of
     prior decisions -- prior decisions upheld unless great
     injustice would result. --  There is a strong presumption of
     the validity of prior decisions; while the supreme court does
     have the power to overrule a previous decision, it is
     necessary, as a matter of public policy, to uphold prior
     decisions unless a great injury or injustice would result;
     adherence to precedent promotes stability, predictability, and
     respect for judicial authority. 

2.   Taxation -- request that Foster v. Jefferson Quorum Court be
     overruled declined -- no convincing authority given for
     appellant's argument. -- Appellant's request that the court
     overrule Foster v. Jefferson County Quorum Court, 321 Ark.
     105, 901 S.W.2d 809, 116-A, 901 S.W.2d 809 (1995), in which
     the court explained at length why Article 16,  9, limits
     county tax levies to the ad valorem property tax, and does not
     fix a limit on sales-and-use taxes, was declined by the court
     where appellant did not give any convincing authority or
     reasons why Foster should not be followed.

3.   Constitutional law -- emergency clauses controlled by
     Amendment 7 to the Arkansas Constitution -- when not enacting
     law no emergency clause required. -- The significance of an
     emergency clause is its effect on the people's reserved right
     of referendum; as a result, the subject of emergency clauses
     is expressly controlled by Amendment 7 to the Arkansas
     Constitution; when not enacting law, no emergency clause is
     required.

4.   Counties -- ordinance calling special election not a law -- no
     emergency clause required. -- Appellant's claim that the
     emergency clause of the ordinance calling the special election
     failed to adequately define an emergency in accordance with
     Ark. Code Ann.  14-14-908(c) (1987) was not reached where no
     emergency clause was necessary; the county quorum court called
     a special election to submit the one-cent sales-and-use-tax
     issue to its voters, it was not a legislative enactment; thus,
     no emergency clause was required. 

5.   Statutes -- ordinance did not levy taxes within meaning of
     statute -- appellant's argument without merit. -- Appellant's
     assertion that the ordinance violated Ark. Code Ann.  14-14-
     908(b), which states that an emergency ordinance or amendment
     shall not levy taxes was without merit; the ordinance itself
     did not levy the tax within the meaning of this statute, it
     was merely the first step in a process authorized by Act 26 of
     1981, for the collection of the tax; the ordinance merely
     called for an election on the issue. 

6.   Limitation of actions -- appellant's argument barred --
     election results not challenged in timely manner. -- The
     chancery court did not err in finding that the numerous claims
     of alleged misconduct by appellees were barred by the statute
     of limitations; Ark. Code Ann.  26-74-209(c) requires that
     any person desiring to challenge election results file such a
     challenge within 30 days after the date of publication of the
     proclamation, here the proclamation of the results of the June
     21, 1994, special election was published on June 28, 1994 and
     appellant did not assert these election-based claims until he
     filed his amended complaint on July 31, 1995. 

7.   Appeal & error -- appellant's request denied -- appeal
     affirmed. -- Appellant's request that, regardless of the
     disposition of this case, the appellees be required to pay the
     costs of the supplemental transcript, was denied in accordance
     with Ark. Sup. Ct. R. 6-7(a); the court affirmed the appeal.


     Appeal from Sebastian Chancery Court, Division III; Jim
Spears, Chancellor; affirmed.
     Oscar Stilley, for appellant.
     Daniel Shue, for appellees.
     Friday, Eldredge & Clark, by:  J. Russell III, and R.
Christopher Lawson, amicus curiae for Association of Arkansas
Counties.

     Bradley D. Jesson, Chief Justice.  05-20-96   *ADVREP*SC1*







JIM SANDERS,
                    APPELLANT,

V.

COUNTY OF SEBASTIAN, ARKANSAS,
and BUD HARPER, in His Official
Capacity as SEBASTIAN COUNTY
JUDGE,
                    APPELLEES,





95-1014


APPEAL FROM THE SEBASTIAN
COUNTY CHANCERY COURT, DIVISION
III (E95-71)


HONORABLE JIM SPEARS
CHANCERY JUDGE




AFFIRMED.



                Bradley D. Jesson, Chief Justice.

     This appeal concerns a one-cent sales-and-use tax adopted by
the majority of Sebastian County voters in a June 21, 1994, special
election.  Over one year after the election, on June 28, 1995,
appellant Jim Sanders filed this illegal-exaction suit against
appellees Sebastian County and Sebastian County Judge Bud Harper,
claiming that the one-cent tax was in excess of the one-half of one
percent permitted by Article 16,  9, of the Arkansas Constitution. 
Citing our decision in Foster v. Jefferson County Quorum Court, 321
Ark. 105, 901 S.W.2d 809, supp. op. granting reh'g, 321 Ark. 116-A,
901 S.W.2d 809 (1995), in which we held that Article 16,  9,
applies to ad valorem property taxes, the appellees moved to
dismiss appellant's complaint.  Thereafter, appellant amended his
complaint to include allegations that the emergency clause in the
ordinance calling the election was invalid and that county
officials had failed to properly publish the ordinance and had
engaged in various acts of election misconduct.  The appellees
moved for summary judgment, and appellant filed a cross-motion for
summary judgment.  The chancery court granted summary judgment in
favor of the appellees.  We affirm.  
     
                       Article 16,  9   
     For his first allegation of error, appellant asserts that the
chancery court erred in finding that Article 16,  9, of the
Arkansas Constitution has no application to Sebastian County's one-
percent sales-and-use tax.  Article 16,  9, of the Arkansas
Constitution reads as follows: 
          No county shall levy a tax to exceed one-half of one
     percent for all purposes, but may levy an additional
     one-half of one percent to pay indebtedness existing at
     the time of the ratification of this Constitution.

Appellant asks us to overrule Foster v. Jefferson County Quorum
Court, supra, in which we were faced with essentially the same
questions presented here.  In Foster, we explained at length why
Article 16,  9, limits county tax levies to the ad valorem
property tax, and does not fix a limit on sales-and-use taxes.    
     There is a strong presumption of the validity of prior
decisions.  Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932
(1984).  While we do have the power to overrule a previous
decision, it is necessary, as a matter of public policy, to uphold
prior decisions unless a great injury or injustice would result.
Independence Fed. Bank v. Payne Webber, 302 Ark. 324, 789 S.W.2d 725 (1990); Thompson v. Sanford, supra.  The United States Supreme
Court has recognized that adherence to precedent promotes
stability, predictability, and respect for judicial authority. 
Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197 (1991), citing
Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986).  In this case,
the appellant has not given us any convincing authority or reasons
why Foster should not be followed.  As we decline to overrule
Foster, it is unnecessary to reach appellant's alternative
arguments that the chancery court erred in ruling that the tax was
levied by the State and not the county, and that the tax was not
enacted for all purposes.
         
                        Emergency clause
     Appellant next claims that the emergency clause of the
ordinance calling the special election failed to adequately define
an emergency in accordance with Ark. Code Ann.  14-14-908(c)
(1987).  In enacting Ordinance No. 94-10, the Sebastian County
Quorum Court determined that "there is a great need for immediate
improvement of general municipal and county services and for a
source of revenue to finance improvement in such services."  The
chancery court ruled that this declaration expressed an emergency,
and, alternatively, even if it had not adequately stated an
emergency, the invalidity of the emergency clause would have no
legal effect upon the vote of the people in the special election. 
While we affirm the chancery court's ruling, we do so for a reason
somewhat different than the one expressed. Patterson v. Odell, 322
Ark. 394, 909 S.W.2d 648 (1995).  In this case, we need not decide
whether the emergency clause states a fact that constitutes an
emergency because we conclude that no emergency clause was
necessary.  
     The significance of an emergency clause is its effect on the
people's reserved right of referendum.  Priest v. Polk, 322 Ark.
673, 912 S.W.2d 902 (1995); Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995).  As a result, the subject of emergency clauses
is expressly controlled by Amendment 7 to the Arkansas
Constitution. Id.  Here, the Sebastian County Quorum Court called
a special election to submit the one-cent sales-and-use-tax issue
to its voters.  It was not enacting law; thus, no emergency clause
was required.  We explained this point in Chastain v. City of
Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945), where we held that
an ordinance passed by the Little Rock City Council ordering the
annexation of certain territory to be submitted to the voters was
not a measure subject to the referendum provisions of Amendment 7. 
A referendum would have involved holding an election to determine
whether an election should be held, and we said that one election
on the principal issue presented by the ordinance was enough. See
also Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950).  To
hold otherwise
     would be to the effect that the electors of the city
     would have the right to vote at an election upon the
     question as to whether an election should be held, to
     which they would vote upon another question, or the same
     question, at a succeeding election . . . The law does not
     require a vain thing to be done.

Chastain at 147, quoting Campbell v. City of Eugene, 240 P. 418
(Ore. 1925).  See also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989).  In short, because the Sebastian County Quorum Court's
action in calling the special election was not a legislative
enactment, an emergency clause was not required.  
     Appellant also asserts that Ordinance No. 94-10 violated  14-
14-908(b), which states that "[a]n emergency ordinance or amendment
shall not levy taxes . . ."  We disagree that the ordinance itself
levied the tax within the meaning of this statute.  Rather, the
ordinance was merely the first step in a process authorized by Act
26 of 1981, codified at Ark. Code Ann.  26-74-201 et seq. (1987 &
Supp. 1995), for the collection of the tax.  In this case,
Ordinance No. 94-10 merely called for an election on the issue. 
See  26-74-207.  In sum, appellant's argument is without merit. 

                       Election misconduct
     Finally, appellant argues that the chancery court erred in
finding that the numerous claims of alleged misconduct by appellees
were barred by the statute of limitations.  In his complaint,
appellant alleged that (1) county officials failed to comply with
statutory requirements in publishing notice of the special
election; (2) they falsely claimed prior to the election that the
tax would last for only ten years, when a "sunset clause" was
omitted from the ordinance; and (3) they intentionally delayed
mailing 6,000 tax statements until after the election.   
     We agree that appellant's claims are barred by the statute of
limitations.  Arkansas Code Annotated  26-74-209(c) requires that
any person desiring to challenge election results file such a
challenge within 30 days after the date of publication of the
proclamation.  The proclamation of the results of the June 21,
1994, special election was published on June 28, 1994.  As
appellant did not assert these election-based claims until he filed
his amended complaint on July 31, 1995, they are barred.  
     In his reply brief, appellant complains that the additional
record designated by appellees, consisting of appellant's original
complaint and the appellees's motion to dismiss, was unnecessary. 
He asks that, regardless of the disposition of this case, the
appellees be required to pay the costs of the supplemental
transcript.  As we are affirming this appeal, we deny appellant's
request in accordance with Ark. Sup. Ct. R. 6-7(a).  
     Affirmed.  
     Dudley, J., not participating.