My vote was required, and was cast, to make the opinion in the cases of Howell v. Howell, and Stevens v. Stevens, ante, p. 298, 208 S.W.2d 22, and I assume my full share of responsibility for the opinion in those cases, but having reached the conclusion that it is unsound, I am now voting to overrule it.
On the authority of the case of Caldwell v. Barrett,71 Ark. 310, 74 S.W. 748, it was held that there could not be a de facto judge unless there was a de jure office, and I do not recede from that view. But was there a de jure office? This I think is the controlling question in the case. This question has given me the greatest concern, and I *Page 322 have endeavored very diligently to answer and refute the arguments contained in the dissenting opinions of Justices McHANEY and McFADDIN that there was a de jure office, but I have been unable to find a satisfying answer to the arguments of those judges, and I am now agreeing with them that there was a de jure office. Whether there was a de jure office of chancellor of the Second Division of the Chancery Court, depends on the answer to the question, whether the provisions of Act 42 of the Acts of 1947 are separable. If they are not, as the original opinion held, the Act must fall, as there is no difference of opinion about 4 of the act, which named Judge Hale as chancellor, being unconstitutional. The original opinion held that it was beyond the power of the General Assembly to create a constitutional office and name a person to fill it, and I have not receded from that view, which indeed is the opinion of all the members of the court. Judge Hale was not therefore chancellor de jure, but was she a chancellor de facto? The arguments of the dissenting judges and the authorities cited by them in support thereof, which I shall not repeat or review here, convince me that Judge Hale was a Chancellor de facto, if the provisions of Act 42 are separable.
The court was created by the first three sections of Act 42, which were patterned after Act 372 of Acts of 1923. This last named Act, in its first three sections, added an additional chancellor to the Seventh Chancery District, and gave that official jurisdiction in only two of the counties comprising that district. The validity of this Act 372 was upheld in the case of Gordon v. Reeves,166 Ark. 601, 267 S.W. 133. If that case is to be followed, the first three sections of Act 42 created the second division of the Pulaski Chancery Court, which court is now in existence, if the provisions of Act 42 are separable.
By 12 of Act 42, the provisions thereof are made separable by enacting that the invalidity of any section or sections of the Act shall not affect the validity of the balance of said Act. In view of this definite statement of the legislative intent, I have concluded that we have *Page 323 no power to say that the Legislature did not mean what it said. Numerous acts have been passed containing provisions similar to 12 of Act 42, and these acts have been upheld, after eliminating any unconstitutional part of the act, provided the part which remained after striking down the unconstitutional portions thereof left a workable act. See cases cited in the dissenting opinion of Justice McFADDIN. Here we have an act which creates a court, if the case of Gordon v. Reeves, supra, is followed, and when the unconstitutional provisions of the act are stricken, we have an office without a Judge, which may be filled in the manner provided by the Constitution, that is, by appointment of the Governor.
An attempt was made in this case to validate a decree of divorce rendered appellee by Judge Hale. In my opinion it was beyond the power of the chancellor to do this. He could, of course, hear the testimony on which the original decree was rendered, or hear other testimony showing grounds for divorce, and grant one, but he could not by nunc pro tunc order validate the divorce decree, if it was invalid when rendered.
Now the effect of the change of my vote is to hold that these decrees rendered by a de facto Chancellor were valid, and do not require a nunc pro tunc order to sustain their validity. The decree from which is this appeal sustaining appellee's divorce is therefore affirmed, not on the ground that a void decree could be cured by nunc pro tunc order, but is affirmed upon the ground that the decree was not void, and does not require validation.
Decree affirmed. Chief Justice GRIFFIN SMITH and Justice ROBINS dissent.