This appeal involves the question of the constitutionality of act 342 of the General Assembly of 1941. The title of the act is: "An act to provide for the more efficient collection of delinquent personal taxes; to provide for the appointment of delinquent tax collectors; fixing their compensation; and for other purposes."
The act provided in 1: "The county judge, the mayor of the municipality that is the county seat, and in those counties having more than one county seat the mayors of the municipalities of both county seats, and the chief county officer of each of the counties of this state are hereby constituted a board to be known as the `Delinquent Tax Board.' It shall be the duty of said board to appoint a collector, or collectors of delinquent personal taxes for its respective county and to supervise and direct collector, or collectors, appointed by them. *Page 20 The board members shall receive no compensation or expenses for or incident to the discharge of their duties. The board shall meet upon the call of the chairman. The county judge shall be the chairman of the board."
The appellee, L. J. Edwards, brought suit in the Pulaski chancery court to restrain and enjoin the appellants, C. P. Newton, as county judge of Pulaski county, Arkansas, Charles E. Moyer, as mayor of the city of Little Rock, Arkansas, and N.M. Hamilton, as county examiner for Pulaski county, Arkansas, from appointing a delinquent personal tax collector under the provisions of act 342. Appellee alleged that he was a resident and citizen of Little Rock and brings this suit in behalf of himself and all other taxpayers of Arkansas. Appellee alleges that act 342 is unconstitutional; that it is in violation of 1 and 2 of art. 4 of the Constitution.
Section 1 of art. 4 reads as follows: "The powers of the government of the state of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another."
Section 2 of said article reads as follows: "No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted."
Appellee also alleges that said act is in conflict with 46 of art. 7 of the Constitution, which reads as follows: "The qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law; one assessor, one coroner, one treasurer, who shall be ex-officio treasurer of the common school fund of the county, and one county surveyor, for the term of two years, with such duties as are now or may be prescribed by law. Provided that no per centum shall ever be paid to assessors upon the valuation, or assessment of property by them."
Appellee alleged that the board is now preparing to appoint delinquent tax collectors under the provisions *Page 21 of said act; that said appointment, if made, will be without authority of law, and void.
The appellants filed their demurrer to the complaint, which states: first, that the court has no jurisdiction of the person of the defendants or the subject of the action; second, that the plaintiff has no legal capacity to sue; third, that the complaint does not state facts sufficient to constitute a cause of action.
The court overruled the demurrer of the defendants, and they refused to plead further, but elected to stand on their demurrer, and the court found that act 342 of the Acts of 1941 is unconstitutional and against public policy, and therefore void. The chancery court enjoined and restrained appellants from electing a collector or collectors under said act. To reverse said decree, this appeal is prosecuted.
The appellee contends that act 342 is unconstitutional for the following reasons:
"1. The county judge is a judicial officer. The appointment of a collector of delinquent personal taxes, when appointed, is an executive officer. It is unlawful to combine two of the state departments in one authority.
"2. The act puts the county judge in a dual position of passing on assessment appeals and then appointing a collector to collect the taxes.
"3. Under the constitution the sheriff is ex-officio collector, and the office is elective.
"4. It is against public policy to subdivide the collector's office.
"5. Who constitutes the `Chief School Authority'?
"6. The legislature cannot delegate to a municipal officer power to act beyond the limits of the municipality."
In volume 1, Cooley's Constitutional Limitations, p. 175, it is said: "There are two fundamental rules by which we may measure the extent of the legislative authority in the states:
"1. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power to any country, subject only to such restrictions *Page 22 as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion."
In 25 R.C.L., 1000, the following rule is stated: "When the constitutionality of a statute is questioned it is the duty of the courts, and also a rule of construction, to adopt such construction as will make the statute constitutional if its language will permit. There is a strong presumption in favor of the validity and constitutionality of an act, and courts should not declare acts of the legislature unconstitutional unless satisfied of their unconstitutionality beyond a reasonable doubt."
Appellee cites and relies on the case of Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457. There is nothing in that case, we think, that tends to support the contention of appellee. The court said in that case: "In the Falconer-Shores case (37 Ark. 386) there is this statement: `Doubtless the legislature has power to provide by law for collectors to be appointed by the governor, or in such other mode as may be directed.'
"The point decided was not that the general assembly could delegate to judicial officers the power to appoint executive officers, but, rather, that the lawmaking body was authorized to provide by law for the collector to be appointed by the governor, `or in such other mode as may be directed'."
In the case of Hays v. McDaniel, State Treasurer,130 Ark. 52, 196 S.W. 934, where the act to borrow money to cover deficiencies in the state's general revenue fund was construed, the court said: "The Constitution is not a grant of power to the state, and we are not required to look to the Constitution for authority for legislative action. The state, acting through the legislature, may borrow money for its own uses unless that right is denied by the Constitution and the only inhibition against the state there contained, in this respect, is that it shall not issue any interest-bearing treasury warrants or scrip." *Page 23
In the case of Hutton, Collector, v. King, 134 Ark. 463,205 S.W. 296, the court said: "(1) It is a well established principle that a constitutional provision merely creating an office does not amount to a prohibition against legislative action varying the duties of that office. The rule is stated by Mr. Throop to be that: `Unless the constitution otherwise expressly provides, the legislature has power to increase or vary the duties, or diminish the salary or other compensation appurtenant to the office.' Throop on Public Officers, 19. That rule has been adopted and subsequently followed by this court. State v. McDiarmid, 27 Ark. 176; Board of Equalization Cases, supra; Cain v. Woodruff County, 89 Ark. 456, 117 S.W. 768."
The Constitution not being a grant, but a limitation of power, the court should, in all cases, uphold a statute unless there is an express or necessarily implied limitation of the legislative power by the Constitution. It is always presumed that the act is valid, and it will be upheld unless it is clearly prohibited by the Constitution, and where it is doubtful whether an act comes within the inhibition of the Constitution, the doubt must be resolved in favor of the constitutionality of the act.
In the case of Bush v. Martineau, 174 Ark. 214,295 S.W. 9, this court said: "`It is not to be doubted that the legislature has the power to make the written laws of the state, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.' Second, that an act of the legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act."
The court stated in the case of Oates v. Rogers, supra, that a statute is not invalid as improperly conferring executive power where the actual power of the executive department is not really diminished. There is no contention in this case that the powers of these officers, as such, are in any way diminished. *Page 24
It is contended, however, by appellee that the county judge is a judicial officer. He refers again to the Oates case in which this court said: "Duties of a county judge, primarily, are ministerial. As was said in Nixon v. Allen,150 Ark. 244, 234 S.W. 45, `The county judge is the governor, so to speak, in the affairs of the county'."
It is contended that act 342 is void because it separates the taxes to be collected; that is, it provides that the collector appointed by the delinquent tax board shall collect delinquent personal taxes only, leaving all other taxes to be collected by the sheriff, who is ex-officio tax collector. This would not make the law invalid.
In 1881 the legislature passed the "Over-due Tax law," providing for suits to be brought by persons other than the tax collector to enforce the payment of overdue taxes, which law was held valid and constitutional. Since that time the legislature has, on two or three occasions, passed back-tax laws providing that the back taxes should be collected by persons other than the tax collector. Those statutes have been held by this court to be constitutional.
It is next contended by appellee that the act is void because it violates 46 of art. 7 of the Constitution. This section provides that the qualified electors of each county shall elect a sheriff who shall be ex-officio collector of taxes, unless otherwise provided by law. The act under consideration is not in conflict with this provision of the Constitution.
The Constitution leaves the office of collector under the control of the legislature. Vaughan v. Kendall,79 Ark. 584, 96 S.W. 140. In that case Chief Justice HILL said, in discussing this provision of the Constitution: "The natural meaning to be attached to this is that the sheriff shall be collector until the legislature otherwise provides."
It is also contended by appellee that the act is against public policy. The Supreme court of the United States said in the case of Twin-City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S. Ct. 476,75 L. Ed. 1112, 83 A.L.R. 1168: "The meaning of the phrase `public policy' is vague and variable; courts have not *Page 25 defined it and there is no fixed rule by which to determine what contracts are repugnant to it. . . .
"In determining whether the contract here in question contravenes the public policy of Arkansas, the Constitution, laws and judicial decisions of that state and as well the applicable principles of the common law are to be considered. Primarily it is for the lawmakers to determine the public policy of the state."
Apparently the purpose of act 342 is to collect taxes that are due and cannot be collected in the ordinary way. We think it wholly immaterial whether the delinquent taxes could not be collected by the tax collector, or whether he through favoritism, failed or refused to collect them. In either event, the state, county, school districts, and municipalities, would be deprived of a great portion of the taxes that should be collected. The legislature evidently thought that if a separate collector was appointed for the sole purpose of collecting delinquent personal taxes, much more money would be derived than under the present system.
There is nothing in this act that violates any provision of the Constitution. The decree is, therefore, reversed and remanded with directions to sustain the demurrer, hold the act valid, and dismiss appellee's complaint.