In the former opinion, to which the majority refer, it appears that the attempt to refund the state's highway indebtedness lead been made pursuant to acts 130, 151 and 278 of the Acts of 1937 and act 257 of the Acts of 1939, and it was held by the majority that these acts did not confer the authority which the governor had attempted to exercise; but of these acts the majority said: "We holds that acts 130, 151, 298 and 257, mentioned in the pleadings, were lawfully passed, and that no constitutional impediments void the measures."
The effect of that opinion is that there was no constitutional objections to the refunding plan, but that legislative authority for it was lacking. It became necessary, therefore, to repair to the General Assembly to acquire the authority which the majority said the acts referred to did not confer. A special session of the General Assembly was convened to confer this authority, and act No. 4 was passed at the special session of the General Assembly to confer that authority. The governor is now attempting to refund the state's highway indebtedness pursuant to the authority conferred by act No. 4 of the special session, but the majority opinion aborts this second attempt.
The majority reserve the question whether act No. 4 is inoperative, in that it confers legislative authority upon the governor, by permitting him to determine whether the new bonds shall be callable on demand or payable only on fixed maturity dates, and permits him to determine the rate of interest which the bonds shall bear. The former executive order for refunding was attacked with even more enthusiasm and eclat than is the present plan, and the objection just stated, which the majority reserve, was raised to the former order in a number of the briefs filed in that case. *Page 845
The opinion in the former case enumerated these objections, concluding with the statement that "The governor may, at his option, authorize issuance of bonds containing a clause reserving to the state the right to call for redemption prior to maturity, on thirty days' notice.
"Assuming that act 130 conferred upon him all of the powers necessary to do those things set out in the executive order, one provision of the order is:
"`Said bonds shall be dated October 1, 1939, and shall bear such rates of interest and shall mature at such time or times not exceeding forty years, as shall be hereafter fixed by executive order approved by the Board of Finance; provided, however, that the interest rates borne by the refunding bonds shall be so fixed that for the aggregate amount of outstanding obligations bearing any one rate of interest there shall be at least an equal amount of refunding bonds hearing a lower rate of interest, except that there may be an amount of refunding bonds equal to the amount of outstanding obligations, which bear interest at the rate of 3 1/2 percentum per annum, which may bear interest at a rate not exceeding such rate, and an amount of refunding bonds equal to the amount of outstanding obligations, which bear interest at the rate of 3 percentum per annum, or no rate of interest, which may bear interest at a rate not exceeding 3 percentum per annum.'
"If authority for the procedure affirmed in the order has been expressly conferred by act 130; or if, by fair construction, it can be said that the things the governor contemplates doing were intended by the legislature, and if that intent can be gathered from the language used, then the lower court's action in denying injunctive relief should be sustained."
Having thus held in the former opinion that there was no delegation of legislative authority, we do not understand the necessity of reserving that question in the instant case.
Act No. 4 confers the power which act No. 130 was said not to contain, and if the former rule is adhered *Page 846 to, "then the lower court's action in denying injunctive relief should be sustained."
Act No. 4 no more delegates legislative power than did act 130. The duties imposed upon the governor under both acts, and specifically under act No. 4, are to perform the functions under which the law becomes operative. The bonds are authorized by the act, and are to be issued pursuant to it. The bonds are not issued by the legislature, and could not be. It was essential that the legislature designate all agent to execute its will, and authorizing its agent to negotiate for the best terms obtainable was not a delegation of legislative authority.
The objection that the state had delegated legislative authority was made to the creation of the Revolving Loan Funds by act No. 119 of the Acts of 1927, under which the State Board of Education was authorized to borrow and lend money. In overruling that contention in the case of Ruff v. Womack, 174 Ark. 971,298 S.W. 222, it was said: "7. Constitutional Law — Delegation of Legislative Power. — The Revolving Loan Fund Law providing for the sale of state bonds by the State Debt Board, for the purpose of borrowing money from permanent school fund, and for lending the money obtained to needy school districts by the State Board of Education, is not invalid as delegating legislative power to either of these boards, as the power conferred is merely that of enforcing the law after making investigations."
The emergency clause is held inoperative for two reasons, the first being that the act grants vested rights and is, therefore, not subject to have an emergency clause attached.
In our opinion, this holding is, not only unsound, but is very unfortunate, and, if followed, will lead to great confusion in future legislation.
The majority have misconceived the meaning of a vested right. The definition in Webster's New International Dictionary is: "Law. That has become a complete and consummated right; that has taken effect as an *Page 847 immediate fixed right to present or future enjoyment, as vested interests, vested rights, a vested legacy, etc."
To whom has act No. 4 granted a vested right? Who has now a present right arising under this act? No one has, and no one may ever have. It is possible bonds may never be issued under act No. 4. If not, who has been deprived of some right conferred upon him by the act? Now, of course, vested rights may be acquired under thin act, just as they may be acquired under nearly every act of the General Assembly. But they have not yet been, and until rights have been acquired they cannot be vested. The prior acts herein referred to authorized the refunding of the state's highway debt, and had the state's highway debt been refunded under those acts, vested rights would have been acquired; but it was not refunded under those acts. Can it be said that vested rights have been granted under these prior acts? Act No. 4 no more grants vested rights than did the former legislation on the same subject.
In the case of Little Rock Railway Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, Ann Cas. 1913d 1086; Chief Justice McCULLOCH said: "It is said by a learned author on constitutional law that `the term "vested right" relates to property rights only, and does not apply to personal rights.' Black on Constitutional Law, p. 429." Judge McCULLOCH then further said: "Judge RIDDICK, speaking for this court and quoting in part from Mr. Black, said: `Now, a vested right must be something more than a mere expectation based upon the anticipated continuance of existing laws. It must have become a title, legal or equitable, to the present or future enjoyment of property in some way or another.' Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050."
We ask again, who has acquired title, legal or equitable, to anything under act No. 4?
In the case of Pearsall v. Great Northern Railway Co., 161 U.S. 646, 16 S. Ct. 705, 40 L. Ed. 838, it was said: "A vested right is defined by Fearne, in his work upon Contingent Remainders, as `an immediate fixed right of present or future enjoyment;' and by Chancellor *Page 848 Kent as `an immediate right of present enjoyment, or a present fixed right of future enjoyment.' 4 Kent Com. 202. It is said by Mr. Justice COOLEY that `rights are vested, in contradistinction to being expectant or contingent. They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. They are expectant, when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent, when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.' Principles of Const. Law, 332."
If the majority opinion should hereafter be followed, the value of the emergency clause has been destroyed, for the reason that under nearly every act of the Legislature vested rights may accrue, and many acts of every session of the General Assembly authorized things to be done, which, if done, will create vested rights; but this is quite a different thing from the act itself creating the right. We submit that act No. 4 does not create a vested right. It authorizes action which, if taken, will create a vested right; but that is true of most legislation.
The majority have much to say about the emergency clause attached to act No. 4. It is the opinion of the judges, who join in this dissent, that this discussion is beside the question, as, in our opinion, this act is not subject to the referendum, even though it had no emergency clause.
It is true that under the original I. R. Amendment the practice of adding the emergency clause became so common as to be an abuse, which the second and our present I. R. Amendment (No. 7) attempted to cure. This was by requiring the General Assembly to state the facts which constituted the emergency, and by requiring a separate vote upon the emergency clause. To adopt this clause, an affirmative vote of two-thirds of all the members elected to each House was essential, but the amendment authorized the people to order a referendum *Page 849 notwithstanding the adoption of the emergency clause. However, it was required that the petition be signed for the referendum by not less than six per cent. of the legal voters, and so the law remains except in the matter of legislation authorizing the state to issue bonds. Amendment No. 20 effects a complete change in the referendum in this respect. This Amendment No. 20 was adopted in 1934, the very year in which the original refunding act was passed — act No. 11 of the 1934 Special Session. It was as well known, when Amendment No. 20 was adopted, as it is now, that our own highway debt could not be paid under act No. 11, and that future refunding legislation would be required. In the adoption of Amendment No. 20 the issuance of state bonds was prohibited "except by and with the consent of the majority of the qualified electors of the state voting on the question at a general election or at a special election called for that purpose," It was made unnecessary for the people to invoke the referendum by filing petitions and otherwise complying with the I. R. Amendment No. 7. The referendum was automatic, and was a prerequisite to a bond issue by the state except for the purpose of refunding the existing indebtedness of the state. This did not involve the creation of a new or additional debt. The state's obligations in regard to the highway debt had been recently fixed by act No. 11 of the 1934 Special Session, and that this debt would at some time have to be refunded was a matter of common knowledge.
In the case of Talkington v. Turnbow, 190 Ark. 1138,83 S.W.2d 71, the facts were that Pope county had issued bonds under the authority of Amendment No. 10, which the county was unable to pay as they matured. It became necessary to refund those bonds by extending maturity dates, and that action was taken under the authority of the order authorizing the original issuance of the bonds. Headnotes 1 and 2 in that case read as follows:
"1. Counties — Refunding Bonds. — The general rule is that the power conferred on counties to issue bonds in the first instance includes the power to refund them, provided *Page 850 that the refunding bonds do not increase the amount of the outstanding bonds or the rate of interest.
"2. Counties — Refunding Bonds — Notice. — Notice of an order of the county court refunding the county's bonds is not required by act 102 of 1935."
In the body of the opinion in that case it was said: "The power and authority conferred by said constitutional amendment on counties to issue interest-bearing bonds to pay their existing indebtedness necessarily implied that they might refund said bonds if it became necessary, provided they should not increase the amount of the outstanding bonds or the rate of interest. By doing this, no additional burden would or could be imposed the taxable property of the county. The general rule is that power conferred to issue bonds in the first instance includes the power, by necessary implication, to refund said bonds."
In the later case of Arkansas Mortgage Securities Co. v. Street Improvement District No. 419, 191 Ark. 487,86 S.W.2d 917, we said that "refunding bonds are only a new acknowledgment of an old debt."
Amendment No. 20 fully covers the subject of the issuance of bonds by the state and suspends the provisions of Amendment No. 7 in that respect. It renders unnecessary any action on the part of the electors to have submitted to them the question whether the state shall issue additional bonds for any purpose except bonds to refund existing outstanding indebtedness of the state, which, as was said in the Arkansas Mortgage Securities Company Case, supra, would only be a new acknowledgment of an old debt.
It is, therefore, in our opinion, unimportant whether act No. 4 has an emergency clause or not, and the fact that the General Assembly took the precaution to attach the emergency clause does not alter the law of the case.
However, we are of the opinion that the act contains a valid emergency clause. The facts recited in this clause as constituting an emergency are known to the entire citizenship of the state. *Page 851
We are asked in the briefs of counsel for appellant to overrule the case of Jumper v. McCollum, 179 Ark. 837,840, 18 S.W.2d 359, but this the majority declined to do, and it has not been done. The rule there announced as to the sufficiency of the emergency clause must, therefore, be followed. It was there said: "Of course, an emergency clause which did not state the fact constituting the emergency would not suffice; nor would a recited fact which was so obviously and demonstrably inefficacious to constitute an emergency that all fair-minded and reasonably intelligent men would say to the contrary. But the converse of this proposition is equally true. If the fact which constitutes the emergency is recited, and if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding. See the many cases under the subhead, `Encroachment on Legislature,' 15 of the chapter on Constitutional Law volumes 1 and 5, Crawford's Digest of the Decisions of the Supreme Court, and the same section and subhead of Crawford's Supplement."
In addition to the holding that the emergency clause was invalid, in that act No. 4 conferred vested rights, that clause is held invalid for the reason that its adoption was effected by the vote of Senator Gutensohn, who was not, in fact, a senator. The majority hold that Senator Gutensohn, appointed by the Governor to succeed Senator Armstrong, who was elected to the office, but who never qualified as such, because he died prior to the convening of the regular session in January, 1939, was not a senator, either de facto or de jure, and that his vote in favor of the adoption of the emergency clause cannot be counted, leaving only 23 votes in favor of adoption, whereas 24 votes are required.
We cannot agree. In our judgment this holding overrules all our previous decisions to the effect that each house of the General Assembly is "the sole judge of the qualifications, returns, and elections of its own members," including that of eligibility, from which there is no appeal, and that the courts are without power to unseat *Page 852 a member seated by either house or to hold invalid any law enacted by the necessary vote of such member. The opinion of the majority in this respect is, not only unprecedented in the decisions of this court, but is in direct conflict therewith as well as the decisions of courts of other states and the Supreme Court of the United States.
It is undisputed that Senator Gutensohn was appointed by the Governor; that he was seated as a Senator by the Senate: and that he participated in all the proceedings coming before the Senate as a member thereof. Let it be conceded that the Governor did not have the power to appoint Gutensohn, and that his act in doing so was in violation of 6 of art. 5 of the Constitution, and 1 of Amendment No. 29 thereof, and that by reason thereof he did not have the right to serve. Another provision of the Constitution is 9 of art. 5, which provides that no person convicted of certain crimes shall be eligible to serve in the Legislature. These provisions are limitations on the Governor and the Legislature, but if they disregard these wholesome provisions, the courts are powerless to interfere. This is true, because another provision of the Constitution, 1 of art. 5, provides: "Each house shall appoint its own officers, and shall be sole judge of the qualifications, returns, and elections of its own members. . . ." Substantially the same provision is in all the state constitutions, and the Constitution of the United States, in part, is as follows: "Each House shall be the judge of the election, returns, and qualifications of its own members. . . ." in ours it says "Each house shall be sole judge," whereas in the federal Constitution it leaves out the word "sole" and says: "Each house shall be judge," etc.
The reason for this wise provision of the Constitution was and is to make the legislative department independent of the judicial, and to make each house an independent court in respect to the election, qualification and eligibility of its own members. There is no provision to be found anywhere in the Constitution that authorizes the courts to upset a decision of either House in this regard. *Page 853 Perhaps, one of the best statements of the reason and necessity for such a constitutional provision is that of Judge Brewer, of the Supreme Court of Kansas, later a Justice of the Supreme Court of the United States, in State, ex rel. Martin, v. Gilmore, 20 Kan. 551, where he said: "The constitution declares, article 2, section 8, that `Each House shall be judge of the elections, returns, and qualifications of its own members.' This is a grant of power, and constitutes each House the ultimate tribunal as to the qualifications of its own members. The two houses acting conjointly do not decide. Each House acts for itself and by itself; and from its decision there is no appeal, not even to the two Houses. And this power is not exhausted when once it has been exercised, and a member admitted to his seat. It is a continuous power, and runs through the entire term. At any time, and at all times during the term of office, each House is empowered to pass upon the present qualifications of its own members. By Section 5 of the same article, acceptance of a federal office vacates a member's seat. He ceases to be qualified and of this the House is the judge. If it ousts a member on the claim that he has accepted a federal office, no court or other tribunal can reinstate him. If it refuses to oust a member, his seat is beyond judicial challenge. This grant of power is in its very nature (and so as to any other disqualification) exclusive; and it is necessary to preserve the entire independence of the two houses."
Another splendid statement is the following from Judge Cooley's opinion in the case of People ex rel. Drake, v. Mahoney, 13 Mich. 481: "While the constitution has conferred the general judicial power of the State upon the courts and officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers; and among them is the power to judge the qualifications, elections and returns of members of the Legislature. The terms employed clearly show that each House, in deciding, acts in a judicial capacity, and there is no clause in the constitution which empowers this, or any other court, to review their action. . . . *Page 854
"It may happen, as suggested, in the argument, that with each House, not only deciding for itself questions of fact, but also construing for itself the law, we may sometimes witness the extraordinary spectacle of two bodies construing and enforcing the law differently, while a third construction is enforced by the courts upon the public at large. But with this possibility in view, the evils of allowing the courts a supervisory power over the decisions of the Houses upon the admission of members, are so great and so obvious that it is not surprising that the framers of the constitution refrained from conferring the power."
In our own recent case of State, ex rel. Evans, v. Wheatley, 197 Ark. 997, 125 S.W.2d 101, a case written by one of the majority, in which Wheatley had, some years prior to his election been convicted of a felony, and appellant was seeking to prevent him from serving under 9, of art. 5, of the Constitution, the question for decision was stated as follows: "The appellant insists here that the trial court had jurisdiction to near and determine this cause; that the action of the Senate in seating Wheatley as a member of that body did not deprive the courts of jurisdiction to pass on his eligibility to serve as a senator, and that the constitutional provision, that each House of the General Assembly shall be the sole judge of the elections, and qualifications of its members, did not include the power to judge as to the eligibility or ineligibility of anyone who might be elected to such a body." After quoting art. 5, 11, of the Constitution, and after citing cases as to the proper construction of the language quoted, it was said: ". . . It is undisputed here that the Senate had passed upon the qualifications of Senator Wheatley and held him qualified. Article V, 9, of the Constitution provides: `No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.' Appellant insists that Senator Wheatley is ineligible to a seat in the Senate under this provision of the Constitution for the reason that he has been convicted of an infamous crime. *Page 855 We hold that the Senate is the sole judge of his eligibility under this section. It may be that the Senate in passing upon his eligibility or qualifications found that the crime with which he was charged was not infamous. But be that as it may, the action of the Senate in that regard and in seating him is final, and the trial court in this case was without jurisdiction to determine that matter. We cannot agree with appellant that the word `qualifications' as used in 11, art. V, of the Constitution, should be given the restricted definition and interpretation which he insists should be placed upon it. We think it includes and embraces the word `eligibility.'"
This was the unanimous decision of the court, but the majority have departed from it and, in effect, have overruled it.
In Young v. Boles, 92 Ark. 242, 122 S.W. 496, we held (to quote a syllabus), "Where in an election contest for the office of State Senator, the circuit court directed a recount of the ballots, and pending an appeal from such order to the Supreme Court, the contestee was declared by the State Senate to be entitled to retain his seat, . . . the appeal, on motion of the appellee, should be dismissed."
See, also, Parish v. Nelson, 186 Ark. 786, 55 S.W.2d 922; Barry v. United States, 279 U.S. 597, 49 S. Ct. 452,73 L. Ed. 867; Reif v. Barrett, 355 Ill. 104, 188 N.E. 889; State, ex rel. Boulware, v. Porter, 55 Mont. 471,178 P. 832; Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124; and note to 107 A.L.R. 205.
In the Montana case, supra, the court said: "The authority thus recognized as lodged in each House is indispensable to its independence and existence. It emanates directly from the people to each House as an independent entity, and cannot be delegated or granted away. Each House acts for itself, and from its decision there is no appeal. No individual, officer, court, or other tribunal can infringe upon its exclusive prerogative to determine for itself and in its own way, whether a person who presents himself for membership is entitled to a seat. . . . Either House may even act arbitrarily and in disregard *Page 856 of fundamental rights. It may oust a member whose election is beyond controversy, and seat as a member a person who is disqualified for the office, but, if it should do so, there is still no recourse."
From these and many other cases that might be cited, it is perfectly clear that the qualification and eligibility of Senator Gutensohn were questions for the "sole" consideration of the Senate, and that its action in seating him is conclusive, and cannot be reviewed by this court.
In any event, Senator Gutensohn was a de facto officer, whose right to serve and vote cannot be attacked collaterally. Forrest City Gro. Co. v. Catlin, 193 Ark. 148,97 S.W.2d 910; Hodges v. Keel, 108 Ark. 184,159 S.W. 21; Davis v. Wilson, 183 Ark. 271, 35 S.W.2d 1020.
In Stevens v. Shull, 179 Ark. 766, 19 S.W.2d 1018, 64 A.L.R. 1258, it was held that an ordinance creating an improvement district cannot be collaterally attacked as being improperly passed, because one of the aldermen whose vote was necessary to its passage, did not reside in the city, since he was at least a de facto officer, and his qualifications to serve could not be inquired into in that suit. Citing McClendon v. State, 129 Ark. 286,195 S.W. 686, L.R.A. 1917F, 535.
If the decision of the majority is to stand, upsetting and holding void the action of the Senate in seating Senator Gutensohn, and in holding his vote on the emergency clause void and of no effect, an intolerable condition will arise with reference to every act passed by the 1939 session of the General Assembly. No one can certainly know, no lawyer, no judge, whether any act of that session has been lawfully enacted, without a search through the Senate Journal to determine how Gutensohn voted, and whether his vote was necessary to the passage or defeat of any measure. The published acts of the Legislature will no longer import verity. They stand stamped by the decision of the majority with uncertainty and doubt. No longer can the Acts of 1939 be cited without a showing from the Journal of the Senate that the vote of Gutensohn was not necessary for the passage of the act cited. And this most intolerable condition is a red *Page 857 flag of warning of danger in repealing or making nugatory the constitutional mandate that "Each House shall . . . be sole judge of the qualifications, returns and elections of its own members." The framers of this provision knew what they were about. They knew that, if each House were not made the judge of the qualifications of its own members, and such matter be left to the courts, no one could tell whether a published law be valid or not, without an exhaustive search of the records to determine who were lawful members and who were not, and how they voted.
No importance is to be attached to the fact that the Legislature passed act 81, appropriating $1,000 "for the purpose of paying Paul Gutensohn for services rendered to the State of Arkansas," without reciting that it was for services rendered as a State Senator. The whole context of the act shows it was for such purpose, and 3 recites "that without such services, the county of Sebastian would be deprived of representation in the Senate of the General Assembly," etc. The only service rendered was as a State Senator.
In our opinion, act No. 4 confers no vested right.
We are of the opinion, also, that, if the act is, in fact, subject to the referendum without an emergency clause, it has a valid clause of that character, which makes it immediately effective, and we, therefore, dissent from the holding of the majority, which overrules the opinion of the court below denying injunctive relief.
I am authorized to state that Justice McHANEY and Special Justice HOLLAND concur in the views here expressed.