# Strawn v. Campbell > Supreme Court of Arkansas · July 2, 1956 · 226 Ark. 449 URL: https://www.frixlaw.com/law-library/cases/9857368 ## Case - **Full name:** Strawn v. Campbell, County Judge - **Court:** Supreme Court of Arkansas - **Decided:** July 2, 1956 - **Citations:** 226 Ark. 449; 291 S.W.2d 508 - **Precedential status:** Published - **Opinion:** Dissent by McFaddiN - **Judges:** Seamstee, Smith, McFaddin - **Cited by:** 14 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/9857368 ## Opinion text Ed. F. McFaddiN, Associate Justice (Dissenting). I respectfully dissent in this case because it is my studied conclusion that in affirming the Trial Court the majority has made mistakes both of omission and commission. I. Omission. The majority — in considering the appeal only on the four points listed in the opinion— has omitted all mention of subsequent Legislative enactments that materially concern this matter of equalizing assessed values. Some of these Legislative enactments may — and I suspect, do — repeal the said Act 351 of 1949 here involved. At least, the majority should have mentioned the Acts, and decided whether any of them repealed Act No. 351 of 1949. Here are some of the Acts on the same general subject of increasing or equalizing assessed valuations: (a) Act. No. 10 of the Extraordinary Session of 1951 (involved in the case of Campbell v. Little Rock School Dist., 222 Ark. 615 , 262 S. W. 2d 267 ); (b) Act 371 of 1955; and (e) Act 153 of 1955. This last mentioned Act — No. 153 of 1955 — provides in its caption, inter alia-. “An Act Providing for a Complete Appraisal and Assessment of All Property in this State that is Eequired by Law to Be Assessed By County Assessors: . . .” Section 1 of the Act says, in part: “There shall be a complete new appraisal and assessment as of January 1,1957, of all property in the State of Arkansas, both real and personal, that is required' by law to be assessed by County Assessors.” If this Act means what it says, then, as of January 1, 1957, all previous assessments will be discarded; and the assessment here involved can hardly be made effective before January 1, 1957. Certainly the majority opinion should have examined this Act 153 of 1955 to see if it repealed the Act 351 of 1949 here involved. The Act 153 of 1955 is a comprehensive Act that seems to take up the entire matter of equalizing assessed valuations; and our cases hold, that when the Legislature takes up an entire subject and legislates at length on it then other laws on that subject are impliedly repealed. In Louisiana Oil Ref. Co. v. Rainwater, 183 Ark. 482 , 37 S. W. 2d 96 , this Court held that the provisions in the old corporation law (requiring the filing of annual statements with the County Clerk) were impliedly repealed by a 1927 Act which dealt with the subject of corporations generally, but which omitted any provision about the annual report. In other words, the old provision’s were impliedly repealed by a new law which omitted such details. Here is what the Court said in that ease: “As above stated, the act of 1927 provides a new scheme or system for the organization and regulation of corporations. It takes up the whole subject-matter anew and sets up a new plan. It is in no sense amenda-tory to the old act, but it is a new enactment covering the same subject-matter. It runs through 40 pages of the printed acts, with 57 sections. As we said in Cordell v. Kent, 174 Ark. 503 , 205 S. W. 404 , cited with approval in State ex rel Atty. General v. Standard Oil Co., 179 Ark. 280 , 16 S. W. 2d 581 : ‘Where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect’, and further, even though the old statute contains provisions not covered in the new.” It seems to me that in the case at bar the majority-should have discussed this Act 153 of 1955 because, if Act 351 of 1949 is impliedly repealed by Act 153 of 1955, then that fact should have been stated in the majority opinion, even though neither side in this present litigation saw fit to raise the issue. The failure of counsel to raise this question cannot excuse this Court, because, when the present opinion becomes final, every question that could have been raised — whether urged or not — is precluded from further consideration. In McCarroll v. Farrar, 199 Ark. 320 , 134 S. W. 2d 561 , this Court held, that where a citizen and taxpayer brings an action on behalf of himself and other taxpayers (just as is the situation in the case at bar), then such suit is a representative suit and every question that could have been raised in that suit— even though not raised — is barred in a subsequent suit. In McCarroll v. Farrar there was the .question of whether Act 310 of 1939 was unconstitutional because of certain omissions in the Legislative procedure. There had been a former suit (Caldarera v. McCarroll, 198 Ark. 584 , 129 S. W. 2d 615 ) challenging Act 310, but the question sought to be raised in the Farrar suit had not been raised in the Caldarera suit. Nevertheless, this Court held that the Caldarera suit was res judicata against the claims that Farrar sought to raise, even though the questions had never been considered in the Caldarera suit. So here, in the case at bar, the question is the constitutionality and present validity of the Act No. 351 of 1949. The majority is holding that the Act is constitutional and valid and now in existence; and such holding will be res judicata even when some suit may arise involving Act 153 of 1955. Thus the Court is ruling out of existence, in advance of consideration, any question about the validity and effect of Act 153 of 1955 on the Act 351 of 1949 here involved. I most strenuously maintain that, in omitting any consideration of subsequent Legislative enactments on the Act 351 of 1949, the majority is guilty of the fault of omission. This Court is not excused merely because counsel for the parties in this suit did not see fit to raise the question. At least, such is my humble opinion. If the Court did not want to pass on the question without briefs, we should have asked counsel to rebrief the matter, rather than to close our eyes to the question of the effect of subsequent legislation. II. Commission. But, entirely apart from the fault of omission, there is. the equally serious fault of commission, because the majority is holding in this case that a School District can lend school funds. The complaint alleged: “8. The plaintiffs are informed and believe and, therefore, allege that the defendants, Dr. William G. Cooper, Jr., Mrs. Arthur E. McLain, Mrs. Edgar P. Dixon, R. A. Lile, Harold J. Engstrom, Jr., and Dr. Dale Alford, as Directors of Little Rock Special School District, have agreed to advance to the Pulaski County General Fund a sum of money prior to June 30,1956, within the 1955-1956 fiscal year of the Little Rock Special School District, and a sum of money after July 1, 1956, within the 1956-1957 fiscal year of the Little Rock Special School District, to be applied on the sum of $310,00*0.00 provided for professional services in the contract for appraisal, and to be deducted from the amount found to be due from the Little Rock Special School District to the General Fund of Pulaski County in the year 1957, as provided in Act 351 of the Acts of the General Assembly of 1949. The said payments by the Little Rock Special School District will constitute a diversion of school funds in violation of Amendment 40 to the Constitution of the State of Arkansas.” • The demurrer filed by the appellees admits that the Little Rock School District is to “advance school money to the Pulaski County General Fund to apply on the cost of this appraisal business, and is to be repaid when Pulaski County gets increased revenues from this re-appraisal. That is a straight loan by the Little Rock School District to the General Fund of Pulaski County. In the oral argument before this Court, I asked the attorneys to cite me to some provision of law that allowed a school district to lend money; and, with becoming candor, the attorneys advised me that they could find no such law. If the Little Eock School District can lend any of its money to Pulaski County, then it can lend its money to any other corporation or individual. The money that the School District receives, either from taxes or any other source, is certainly a trust fund to be spent for school purposes and not to be loaned to a corporation or an individual. I cannot see how the majority can affirm this case in the face of a complaint that contained the allegations as herein quoted. In the oral argument it was said that the School District was merely “advancing” the money to Pulaski County and was to be repaid. It is a mere quibble of words to say that the “advance” here alleged will not be a loan; because a loan is an advance to be repaid. Nor can the loan of the school funds to Pulaski County be defended by Section 6 of the Act 351 of 1949 here involved. That section says: “Annually at the time of making the final settle-merit of taxes collected by the county tax collector, the funds of the one or more taxing units in which property has been appraised under the terms of this Act shall be charged with such unit’s respective pro rata share of such appraisal and publication costs and the amounts so charged shall be credited to the general fund of the county. ’ ’ That section means that the General Fund of Pulaski County shall be repaid — from the increased tax moneys collected — for the overhead expense that the County has been out, and thus satisfies the requirements of Hutton v. King, 134 Ark. 463 , 205 S. W. 296 , cited in the majority opinion. The Act clearly contemplates that the County shall bear the expense originally. But in the case at bar, the School District is to lend its money to the Pulaski County General Fund and then get the money back when, as, and if, the tax collector receives more money from this assessment procedure than he would have received without the assessment procedure. I urge the majority to show me any law in this state that allows (a) a school district to lend money, or (b) a county to borrow money from a school district. Until such a law can be found, I submit that this Court should not affirm this ease. School funds are trust funds and cannot be diverted In 47 Am. Jur. 363 , cases from this jurisdiction and many others are cited to sustain the following text: ‘ ‘ School funds are held to be trust funds for educational purposes which the courts will not permit to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be in its practical, ethical, or sentimental aspects. Even the legislature, itself, the fountainhead of matters educational, cannot divert school funds to other uses.” I submit that the majority opinion in this case is allowing school funds to be diverted to pay county expenses. In the case of Walls v. State Board of Education, 195 Ark. 955 , 116 S. W. 2d 354 , this Court held that the school funds could not be diverted, even to the assistance of the State School for the Blind; and yet, in the case at bar, the majority is allowing the school funds of the Little Rock School District to be loaned to Pulaski County so that Pulaski County may hire some assessors who, presumably, will increase assessed valuations so that not only the Little Rock School District, but the City of Little Rock and the other governmental agencies involved in this case will get more money. If there ever was a ease of diversion of school funds, this is it. I know that taxes should be equalized; I know that schools are entitled to more money; I believe in education. But I believe in the Law; and I believe that when a Court puts expediency ahead of the Law, the Court makes a great mistake; and I think that is what has been done by the majority in this case. For the reasons herein stated, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857368. Public record. Not legal advice.