#### Arkansas-Missouri Power Corporation v. City of Rector.

4-8729

217 S. W. 2d 335

Opinion delivered February 14, 1949.

*651 P. A. Lasley, Ponder & Ponder and Verlin E. Upton, for appellant.

T. A. French, Arthur Sneed and E. G. Ward, for ap-pellee.

Smith, J.

In the endeavor to construct and operate a municipal light plant and distribution system in and for the City of Rector, the council of that city passed Ordinance 212 on February 12,1946, entitled:

> “An Ordinance Calling, Authorizing, and Directing a Special Election to be Held in the City of Rector, Arkansas, for the Purpose of Testing the Sense of the Qualified Voters of Said City upon a Proposition to Issue and Sell Bonds on Said City of Rector in the Amount of $65,000, with the Proceeds of Which to Build and Construct an Electric Light Plant in and for Said City and to Provide a Distributing System Therefor. ’ ’

Section One of the ordinance ordered and called a 'special election to be held on March 26, 1946, “for the purpose of testing the sense of the qualified voters of said City upon a proposition to issue and sell bonds of the said City of Rector in the amount of $65,000 with the proceeds of which to build and construct an electric light plant in and for said City and to provide a distributing system therefor.”

Other sections of the ordinance designated the polling places, and the rate of interest the bonds should bear, and provided that all of the money realized from the sale of bonds should be used to build and construct the electric light plant and distributing system to be used for the purpose of providing and furnishing to the city and its inhabitants electric power or energy for light and other purposes. Provision was made for giving notice of the election and section eight provided that the ballot to be used at the election should be in the following form:

*652“SPECIAL BOND ELECTION BALLOT

City of Bector, Arkansas

PBOPOSITION:

“To issne and sell bonds of the City of Bector, Arkansas, in the sum of $65,000, with the proceeds of which to bnild and construct an electric light plant in and for said City and to provide a distributing system therefor.

FOB THE BONDS AGAINST THE BONDS.”

The preamble to Ordinance 212 recites that “The Council finds that the estimated cost of said plant and distributing system is Sixty-five Thousand Dollars, and that the ordinary income and revenue of said City are insufficient to meet an expenditure of such an amount.”

Due notice of the election was given, which recited that the election was called for the purpose of testing the sense of the qualified electors of said' city upon the proposition above stated.

Pursuant to this notice, the election was held on March 26, 1946, and a large majority of the electors voting thereat voted in favor of the bond issue, and a week later, on April 2,1946, an ordinance, No. 213, was passed, levying the tax for the purpose of paying the bonds authorized by ordinance No. 212. Section 2 of ordinance 213 reads as follows:

> “In order to better secure the payment of said bonds, the Mayor of the City of Bector is hereby authorized and directed to pledge the net revenues derived from the operation of an electric light plant and distributing system constructed by and with the proceeds of said bonds, over and above the necessary expenses incurred in operating such light plant and distributing system. It is intended by this section to authorize the irrevocable pledge of all revenues derived by the City of Bector from the operation of an electric light plant and distributing system *653pur chased with the money derived from the sale of said bonds, after having first paid, all necessary expenses incurred in the operation of said electric light plant and distributing system.”

Section three of ordinance 213 directs the City Clerk to transmit a copy of the ordinance to the County Clerk to the end that the taxes may be extended.

Appellant power company filed a complaint on April 24, 1946, against the City, its Mayor, the City Aldermen, the City Clerk, the Board of Commissioners of the City, and the County Clerk and Collector of Clay county, in which county the City of Rector is situated, praying that ordinances 212 and 213 be declared void, and that the defendants be enjoined from constructing the proposed plant, the issue and sale of said bonds, and the collection of the taxes to pay therefor.

The plaintiff brought this suit as a taxpayer of the City of Rector, to enjoin what is alleged to be an illegal attempt to collect taxes upon its property. Certain citizens intervened, joining in the plaintiff’s prayer for relief. The interventions were dismissed along with plaintiff’s complaint as being without equity, and the inter-veners have not appealed, but the plaintiff power company has.

The answer denied that a Board of Light Commissioners had been constituted and that allegation is not denied. The complaint and the answer, together with the exhibits to both pleadings and the testimony in the case, raises the issues which we shall discuss.

The complaint alleges that the electors were misled by the recitals of the ordinance, the notice of the election and the ballot title, to believe that the plant could be erected at a cost not to exceed $65,000, whereas its cost would be more than twice that amount, and that the Council had caused no estimate of cost to be made when ordinance 212 was passed.

It is conceded that no estimate of cost had been made before ordinance 212 was passed. The Mayor was asked: “You knew when ordinance 212 was passed'that the plant *654could not be built for $65,000, did you not?” And be answered: “At no time bave we attempted to establish tbat. Tbe $65,000 was used because it was tbe amount of taxable bonds we were able to vote.”

It is strenuously denied tbat there was any attempt to deceive tbe electors or tbat they bad been deceived. Testimony was offered tbat tbe matter bad been discussed not only in tbe sessions of tbe City Council, but by tbe citizens generally and at a mass meeting held tbe night before tbe election when it was explained tbat while tbe plant could not be erected out of tbe proceeds of tbe bond sales, it was planned to issue revenue bonds in an amount sufficient, with tbe $65,000 which tbe electors were asked to authorize to construct tbe plant and distributing system.

Notwithstanding all this, tbe fact is undisputed that nowhere in tbe title of tbe ordinance, in tbe preamble thereof, or in tbe body thereof, or in tbe proposition to be voted on in tbe ballot, or in tbe notice of the election, is there anything to indicate tbat tbe bond issue was to partially construct an electric light plant and distributing system, or merely to contribute to tbe cost thereof.

On tbe contrary, tbe language used was to “build and construct a light plant and to provide a distributing system therefor. ’ ’

It is to tbe sources just mentioned tbat tbe electors bad tbe right to look to ascertain what they were asked to approve, and not to discussions in tbe Council meetings, or to street conversations, or to speeches made at a mass meeting which may or may not bave been largely attended. Neal v. Morrilton, 192 Ark. 450, 92 S. W. 2d 208; Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26.

Tbe ballot title is tbe final word of information and warning to which tbe electors bad tbe right to look as to just what authority they were asked to confer, and we think its implication and ordinary meaning is tbat it was proposed to construct tbe plant with tbe proceeds of tbe bond sale. There is no intimation tbat tbe proceeds of *655the bonds were intended merely to supplement other sources of revenue.

In the case of Hoffman v. Kline, 300 Pa. 485, 150 Atl. 889, the Supreme Court of Pennsylvania said: “ ‘Where ordinary words are used in the Constitution, they must he construed in their popular and general sense, as the people who voted for it would understand them. ’ This principle is particularly applicable in the present case. There are no express words or sentences in the entire section which invest the term ‘construction’ with other than its general, popular meaning, such as is ordinarily given to it by the people at large, by architects, and by those engaged in building enterprises. The standard dictionaries unite in defining the word ‘construct’ as ‘to build,’ ‘to erect,’ ‘to make,’ in the sense of to create; and the term ‘construction’ they define as the act of constructing or making a completed structure.”

In opposition to the relief which the taxpayer seeks, that is that the levy of the tax be enjoined, it is urged that the plan of the Council is to issue revenue bonds and that the proceeds of the sale thereof, together with the proceeds of the sale of the $65,000 bond issue, will suffice to construct the proposed plant. This may be true and we assume that it is, but the question here presented is that of the validity of the $65,000 bond issue.

We do not mean to hold, and we are not holding, that the proceeds of the bond issue, authorized by the- electors, must alone suffice to build the light plant, and cannot be supplemented by federal grant, or the issue of revenue bonds or otherwise. We held to the contrary in the case of Rhodes v. City of Stuttgart, 192 Ark. 822, 95 S. W. 2d 101. There a bond issue was upheld for certain street improvements which admittedly was insufficient to pay the cost thereof, but the bonds were voted to be used in connection with a donation of the Federal Government through the P.W.A. agency, of which the electors were advised when they voted for the bond issue. So here, had the electors been advised that they were voting for a supplementary source of revenue, it would not defeat the *656bond issue because tbe issue of itself would be insufficient to erect tbe plant, but tbe electors bad tbe right to be correctly advised as to tbe Council’s plans. It is readily conceivable that tbe electors might consent to tbe erection of a plant costing only $65,000 and yet be unwilling to consent to tbe erection of a plant costing much more, for tbe reason, if for no other, that tbe light rates would be influenced, if not controlled, by tbe cost of tbe plant producing tbe required electricity.

Tbe subject of tbe “Statement regarding cost of proposed public improvement in ballot for special election in that regard” is annotated in tbe case of Drenning v. Topeka, 117 A. L. R. 894. Tbe annotator summarizes bis review of tbe cases cited with these statements: Independently of statutory provisions or inferences, there is no requirement that ballots used in special election with reference to a proposed public improvement shall state tbe cost or tbe estimated cost of tbe improvement. But tbe cases cited in tbe note are to tbe further effect as summarized by tbe annotator that tbe ballots used in a special election with reference to a public improvement must not be misleading in any statement or implication as to total costs. And further that tbe cost of tbe 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. This statement accords with our bolding in tbe case of Cisco v. Caudle, 210 Ark. 1006, 198 S. W. 2d 992.

Tbe right of appellant, a foreign corporation, to maintain this suit is questioned. But this is a taxpayer’s suit, brought to enjoin tbe imposition of what is alleged to be an illegal exaction. Appellant is a taxpayer on property in tbe city, which will be subject to tbe tax, if it is imposed, and the suit is authorized by § 13 of Art. XYI of tbe Constitution. In tbe case of McCarroll, Commissioner, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977, it was said: “We are of tbe opinion, therefore, that an individual has the right to go into a court of equity to enjoin tbe enforcement of any illegal tax or exaction and that this same right in*657ures to the corporation, appellee, in the instant case, since a corporation is a person within the meaning of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. ’ ’

It follows from what has been said that an illegal exaction is being imposed upon the property within the City of Eector, and the decree from which is this appeal is therefore reversed, and the cause remanded with directions to enjoin the collection of the proposed tax.