This is the first time since 1836, and the only time during the *Page 822 75 years of rule under the Constitution of 1874, that there has been judicial affirmation of the proposition that a public fund belonging to the people in their governmental capacity may be dealt with by boards, commissions, institutions and agencies under a plan giving to them unrestricted authority to act with complete indifference to the public treasury, absent the formality of appropriation.
No appellate court, in similar circumstances, has made a more far-reaching determination — nor one so fanciful and better adapted to extravagant expediency.
To say that after the lawmaking power has created an agency with the right in it, either express or implied, to collect an appreciable part of the state's money, and that this agency may in turn disburse it at its will for salaries, wages, commodities, travel expense, and multitudinous incidentals in respect of which the legislature has intentionally or through inadvertence withheld formal sanction, and to hold that any such public money not actually deposited in the treasury or earmarked by an Act for that department is an asset subject to the discretionary use of those who have been appointed, selected, elected or employed, — these mere statements and the liberality of opinion that christen their birth are, to say the least of it, novel to the point of seeming incredibility.
We must therefore turn to the assigned reason upon which the innovation rests for a guiding rule. We must see whether a rule of construction applied by the Court's majority, or the interpretation of constitutional language, finds support in precedent or sanction in reality.
It is pertinent that we ascertain whether that at reason comports with the dignity of purpose, the clarity of expression, and the penetrating vision attending deliberations of Grandison D. Royston as president, and other delegates to the constitutional convention. We are permitted to inquire if meaning given to Articles devoted to revenues, and to Sections on expenditures, carries into effect with practical certainty the thought of our founding fathers in creating within the government three *Page 823 coordinate departments: the legislative to say by express enactment from what sources money should come and how spent; the executive to collect and apply this revenue when affirmatively authorized by appropriations to do so; and the judicial, when conflict arises, to adjudge whether either department has transgressed the inherent rights of the other, or trespassed upon its sanctions.
It is said that interpretation differs from construction in that the former is the art of ascertaining the true sense of any form of words; that is, the sense which their author sought to convey. Construction, on the other hand, is the drawing of conclusions as to subjects that lie beyond direct expressions of the text. Thus conclusions are reached which are in the spirit, though not in the letter, of the text. Construction comes when there is contradiction in different parts of the same writing, or conflict between terms used in separate documents that should be read together.1
The majority's citation to Straub Lohman v. Gordon,27 Ark. 625, does not add to or detract from the issues presented here. The decision was under the Constitution of 1868, and it merely held that when the general assembly was told to tax all useless privileges, pursuits, and occupations, and directed that the money should be paid into the treasury, the sheriff who held the fund should remit to Little Rock, and not to Phillips County.
But, say the participating Judges, since "treasury" means state, and since, by the organic law of 1874, no money may be drawn except by appropriation, this language "necessarily refers only to money that has reached the state treasury, and does not refer to money held elsewhere."
The corollary is implicit, under this construction, that if public funds have not actually reached the treasurer, and the general assembly has not legislated with reference to their use, expenditure may be lawfully made without the formality of appropriation. *Page 824
Cash Fund money comes, in some instances, from fees authorized by law, but with no express provision for handling it. In other cases the agency assesses under its self-asserted implied power of discretion. Millions pass through administrators who act independently of legislation, relying upon usage for approval.
The record does not suggest that those drawn into the controversy are dishonest in exercising this so-called privilege; nor does the writer here intend to create a suspicion that irregularity of a personal nature is practiced. The contrary appears to be true. For example, the Supreme Court itself is one of the defendants. Filing fees are deposited in a local bank and drawn by check for library purposes. But the fact that this has been done under unofficial judicial sanction for nearly a century does not make it legal. On the contrary, it serves to emphasize the fruits of prolonged legislative procrastination, and the unwholesome consequences that can follow.
I think one effect of today's opinion is to say that the state treasurer, whose constitutional status in the executive department was provided for by 1 of Art. 6, has permissive duties only, and that responsibility does not begin until affirmative requirements have been legislatively prescribed. If Cash Funds are public moneys, as the opinion concedes, and if there is no requirement that "public money" must pass into the treasury, and if, as the opinion points out, the absence of such mandate ". . . [was] a studied and deliberate omission" from the Constitution, — then certainly, if these conclusions of the Court's majority are sound, the general assembly is left to its own devices in avoiding other parts of the Constitution. For example, maximum official salaries are fixed by 23, Art. 19, at $5,000. Reasonable persons will concede that under existing conditions, and with constantly increasing duties, many public officials whose compensation has not been increased through constitutional amendment are deplorably underpaid. Others serve under statutory authority, and at least prima facie they cannot be paid more than the maximum fixed in *Page 825 1874. But today's opinion points a way to better pay through failure of the general assembly to fix these salaries, or by repealing those already fixed. It may, by negative or affirmative action, permit all fees and commissions to be withheld from the treasury.
By wiping out statutes fixing salaries of the several agencies, such as the Commissioner of Education, Penitentiary Superintendent, Commissioner of Insurance, Bank Commissioner, and may others similarly situated, administrators or supervising boards especially created for that purpose could fix all salaries not constitutionally set, name the number of employees, apportion their compensation — and, by and large, handle the state's undeposited money in any manner not expressly prohibited. While money arising from excise and ad valorem taxes and assessments is not discussed in the opinion, yet the decision at least inferentially draws within its scope all funds that for any cause other than legislative action may be found outside of the treasury.
I do not assume that the lawmaking body will undertake to exercise its full power within this fertile field of finance. The presumption should be that it will not lend an attentive ear to the entreaties from pressure groups, however indefinite the Constitution may be said to be.
Most writers agree with Judge Cooley in his assertion that a principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. "It is with special reference to the varying moods of public opinion", says he, "and with a view of putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. These beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections. . . *Page 826 Public sentiment and action affect such changes, and the courts recognize them; but a court or legislature which would allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of the founders would be justly chargeable with . . . disregard of public duty; and if its course should become a precedent, these instruments would be of little avail. The voice of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity for bills of right in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary excitement and passions among the people, to adopt oppressive enactments. . . . The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it."
If I could agree with my five associates — who with all the certitude of crystal discernment ascribe "studied and deliberate purposes" to the omission of phrases so obviously implied; if I could believe that the people of this state, in adopting their Constitution, intended that public money should not, without legislative command, find its way to the only official repository created for that purpose, or that agencies inferior in dignity to the departments so carefully established could by failure to deposit nullify the genius of a harmonious purpose; if I could feel that the makers jockied with a joker, but did the work so cleverly that for three-quarters of a century the subtle transaction was not openly suspected, — then, with these assurances, a concurrence might be possible. But, convinced as I am that the delegates of 1874 had attained that mature intellectual stature their handiwork suggests, and that nothing was farther from their thoughts than today's eventuality, I must respectfully dissent.
1 See Cooley's Constitutional Limitations, 8th Ed., ch. 4, 223 S.W.2d 38 1/2. *Page 827