I concur in the majority opinion that by act 16 of 1935 the treasurer of *Page 704 Lonoke County and her bondsmen were relieved from all liability for all public funds on deposit in banks as found by the circuit court, but cannot agree that act 325 of 1935 relieves appellants from liability. As pointed out in the majority opinion, this act became effective April 4, 1935. By the proviso: "This act shall apply only to such banks as were closed by the proclamation of the President of the United States and/or State Bank Commissioner" was retroactive only to the date of the proclamation of the President of the United States or the State Bank Commissioner. The bank in which these public funds were on deposit became insolvent and was voluntarily placed in charge of the State Bank Commissioner for liquidation more than one year prior to March 6, 1933. It is universally held that courts take judicial notice of proclamations of the President of the United States and of State officials. Booe v. Road Imp. Dist.,141 Ark. 140, 216 S.W. 500; Arkansas-Ash Lumber Company v. Pride Fairly, 162 Ark. 235, 258 S.W. 335; 23 C.J., p. 101, 1900. Therefore we take judicial notice that the President of the United States issued his proclamation on March 6, 1933, closing all National and Federal Reserve Banks in the United States and its provinces. This proclamation did not take into account the solvency or insolvency of any bank or banks — it was a blanket order and closed every National and Federal Reserve Bank situated in the United States and its provinces. Furthermore we take judicial notice that simultaneously with the President's proclamation the Arkansas State Bank Commissioner issued his proclamation closing all State banks situated in this State, and moreover the question of the solvency or insolvency of said banks was not considered in this blanket order. We also know and are required to take judicial knowledge thereof that the State Legislature had this information when act 325 of 1935 was introduced and enacted. We also know and the Legislature knew that but one blanket proclamation has ever been issued by the President of the United States or the State Bank Commissioner closing all banks. We also know and the Legislature knew that insolvent banks are not closed for liquidation by proclamation of *Page 705 the President of the United States or the State Bank Commissioner.
We also know, unless we close our eyes to the facts, that no such proclamation has ever been issued by the President of the United States or the State Bank Commissioner save the one issued on March 6, 1933. It appears therefore that the Legislature could have had but one date in mind, namely, March 6, 1933, when it deliberately wrote the word, "Proclamation" into the provision of act 325 of 1935.
The purpose of act 325 of 1935, if indeed its purpose is pertinent to this inquiry, was to relieve county officials and their bondsmen of liability caused by the closing of all banks whether solvent or insolvent, by the peremptory proclamation of the President of the United States and the State Bank Commissioner. Many banks which were closed by these peremptory proclamations although going concerns up to that time, were never able to comply with conditions prescribed by the Comptroller of Currency of the United States or the State Bank Commissioner, and were therefore prohibited from reopening for transacting a banking business. Examples need not be sought elsewhere than in Little Rock. To relieve county officials and their bondsmen of deposits in apparently solvent banks on the date of the peremptory orders of the President of the United States and the State Bank Commissioner or on March 6, 1933, and which were denied the privilege of reopening for business because of more stringent rules and conditions were the exclusive class of banks selected as exempt by the provision of this act. From the majority opinion it is uncertain whether they deliberately ignore the proviso in act 325 or so construe its language as to produce the same result, but either theory is equally fallacious. Apparently the majority opinion ignores the proviso and treat its effect as if it were stricken therefrom. They say that the act relieves "all county officials and their bondsmen from liability * * * reference to the time when they were closed." This unwarranted departure, ignotum per ignotius, sets this court up as a legislative body, and cannot be justified under the Constitution of this State. *Page 706 The proviso in the act emphatically says: "This act shall apply only, etc." The majority opinion says it shall apply to all banks, regardless. Since when until now has this court assumed the power and authority to ignore plain and simple language which appears in a legislative enactment and substitute therefor a construction wholly at war with the plain and unambiguous language employed in the act? No case is or can be cited from this court justifying such interpolation, and I dare say none can be found in the printed reports.
The majority further say that their conclusion is strengthened when it is considered that act 325 was amended on its passage by striking out the phrase "on and after February 28, 1933," and leaving the act to read as it became a law; they say that this is very persuasive that the Legislature intended to make the act applicable to all banks irrespective of the time they were closed. In my opinion this amendment shows no such intent. On the contrary, it demonstrates that this phrase was stricken out because leaving it in would create an irreconcilable conflict in the language employed in the proviso. The President's proclamation was issued March 6, 1933, and with the language left in the proviso "on and after February 28, 1933," created such conflict as to be irreconcilable. In other words the Legislature by its amendment sought to avoid the very inconsistent and irreconcilable conflict into which the majority has fallen. The proviso in act 325 should be construed as it reads, and, when this is done, only such county officials and their bondsmen who had funds on deposit in National, Federal Reserve and State banks on March 6, 1933, would be relieved because closed by the proclamation of the President of the United States and the State Bank Commissioner. If the majority opinion be a construction of the language employed in the proviso of act 325, it creates the anomalous situation that by judicial construction an act of the Legislature is made applicable and retroactive to all National and Federal Reserve banks as of March 6, 1933, but as to State banks is made applicable and retroactive to the first day of the year one. This judicial interpolation is arrived at from plain *Page 707 and unambiguous language used in the proviso. If such unwarranted construction be not discriminatory, unconstitutional and void, an act could hardly be found that is. Just why should county officials and their bondsmen who had funds on deposit prior to March 6, 1933, in National and Federal Reserve banks be held liable but those who had funds in State banks be relieved of all liability? It occurs to me that such discrimination is not only abhorrent to common honesty and decency, but is prohibited by positive law. See article 2, 18, Constitution of 1874; Jonesboro, L. C. E. Rd. Co. v. Adams,117 Ark. 54, 174 S.W. 527.
I am unwilling for this court to usurp the power vested in the State Legislature by the Constitution of this State, and this I conceive to be the direct effect of the majority opinion.
For the reason stated, I most respectfully register my dissent.
I am authorized to say that Mr. Justice BAKER concurs in the views here expressed.