# Newton, County Judge v. Edwards > Supreme Court of Arkansas · November 10, 1941 · 203 Ark. 18 URL: https://www.frixlaw.com/law-library/cases/3269782 ## Case - **Full name:** Newton, County Judge v. Edwards. - **Court:** Supreme Court of Arkansas - **Decided:** November 10, 1941 - **Citations:** 203 Ark. 18; 155 S.W.2d 591; 1941 Ark. LEXIS 318 - **Precedential status:** Published - **Opinion:** Dissent by Smith - **Judges:** Smith, Mehaeey, McHanev - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3269782 ## Opinion text Grifein Smith, C. J. (dissenting). The majority opinion correctly says that the only question is whether Act 342, approved March 26, 1941, is violative of the Constitution. I think it is. The general assembly has the right to separate the office of collector from that of sheriff; but, when so severed, and before, the collector’s office is a constitutional one and may not be rent for distribution among a possible 2,800 appointees. 1 That the status of the collector as a constitutional officer remains after the office has. been severed was decided in Oates v. Rogers, 201 Ark. 335 , 144 S. W. 2d 457 . It was there said that § 46, art. 7, of the constitution, as it affects sheriffs, had been construed to provide for a two-year term. In the opinion it was said: “By reference to the section ... it will be seen that the expression ‘for the term of two years’ follows words which confer upon the general assembly power to create the separate office of collector. It must be held, therefore, that the collector’s term could be for but two years, as distinguished from the five-year period stated in Act 137” of 1939. Marshall v. Holland, 168 Ark. 449 , 270 S. W. 609 , held that the collector’s office could not be taken from the sheriff’s office and the duties conferred upon a county treasurer. But the opinion, written by Chief Justice Mc-Culloch for an undivided court, went further. It held that “the position of tax collector is a separate office,” and “The offices of sheriff, collector, treasurer, and certain other county officers are all embraced in § 46, art. 7, and this necessarily groups them as officers in the-same department.” Again, in discussing authority conferred by the constitution, it was said: “Placing the collector’s office under legislative control does not imply authority to annex it to another office, for to do so would bring it in conflict with the other provisions of the constitution prohibiting dual office holding. ’ ’ There is this further holding. . Nor can it be said that the mere fact that the office of tax collector is referred to in art. 7, § 46, forces the conclusion that the lawmakers may continue to treat it as an ex officio office and annex it to another office.” ' Attention is directed to the particular words used by Judge McCulloch. Pie speaks.of the “offices” of sheriff, collector, etc. Then, in respect of the constitutional grouping, he refers to the incumbents as “officers.” First, the “offices” are mentioned; and then, when separated, they are to be occupied by “officers” —a sheriff and a collector for each county. Act 342 vests discretion in the delinquent tax board •to select two or more collectors “. . . and to divide the territory of the county into districts and appoint a collector for each district; provided, that in dividing the county into districts the board may not divide school districts unless a school district includes territory in two counties; and provided further, that in cities of more than 25,000 population the board may appoint a collector for one or more wards of such cities.” Not only may a collector be appointed for each school district, but where a district, lies partly in one county and partly in another, a collector may be appointed for each fraction; such area, within.the terms of the Act, being susceptible of designation as a district. If the general assembly may parcel collection of delinquent personal taxes, it may likewise parcel other taxes; or it may designate that any function of the collector’s office be assigned to a board, commission, or receivers generally. I think the construction given by the majority loses sight of the perplexities created, and that it attributes to those who framed the constitution and the people who adopted it a plan not even vaguely contemplated. The construction seems to be founded more upon expediency, or what is termed necessity for more thorough collection, than upon practical analysis. There will be repercussions distasteful in the extreme. It may be answered that the legislature declares the state’s public policy. The reply is that it does, within the constitution. We now have a situation whereby the sheriff, as ex officio collector in those counties where severance has not been enacted, and the collector, in those counties where the general assembly has caused separation, is required to execute bond on or before the first Monday in January each year. Pope’s Digest, §§ 13775-76-77, as amended by Act 85' of 1927; Act 198 of 1929, and Act 329 of 1937. Amount of the bond is determined by a board composed of the attorney general, auditor of state, and treasurer of state, “. . . in accordance with the degree of responsibility,” not to exceed 25 per cent, uf the amount of money handled. Pope’s Digest, 10440-41. Under Act 342 the delinquent tax board for each county meets immediately after the last publication of the delinquent personal tax list and-appoints collectors. Publication of the delinquent personal list is directed by § 13834 of Pope’s Digest. Payment for publication is on the basis of ten cents per name, “. . . which sum, together with five cents per name for the collector preparing and furnishing the list, shall be charged to the delinquent taxpayer, and shall be paid by the collector from any moneys in his hands derived from payment of personal property taxes.” But by § 6 of Act 342 the delinquent tax collectors make settlement with the county clerk rather than with the regular collector. The constitutional collector must pay into the county treasury on the first and fifteenth of each month “and within two days thereafter” all funds in his hands belonging to the county. Pope’s Digest, § 13905. Under § 13834 the county is not required to pay publication fees, and the newly-created delinquent tax board cannot function until publication has been completed. Inasmuch as the constitutional collector does not receive funds from his appointed co-collectors, it is difficult to see how payment for publication can be legally made. This is a mere detail and does not affect validity of the Act; but it does illustrate what may occur when fundamental moorings are severed. The essential consideration is that a constitutional, office has been vivisected and its parts widely scattered. Mr. Justice McHanev joins in this dissent. 1 As of June 30, 1941, (latest compilation) there were 2,799 school districts in the state. Add to 2,799 the number of wards in cities of more than 25,000, and school districts partly in one county and partly in another. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3269782. Public record. Not legal advice.