(dissenting.) Blackstone says: “An act of parliament * * * is the exercise of the highest authority that this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions thereunto belonging, nay, even the King himself, if particularly named therein.” 1 Black. Com. c. 2, p. 185. The “long train of abuses and usurpation” causing the Declaration of Independence impelled the signers thereof to declare that “it is their [the people’s] duty to throw off such government and to provide new guards for their future security.” In the formation of the National government and in the governments of the several States written constitutions were evolved as new guards for future safety, and in them were placed limitations on the paramount power of the legislative department of government. A system of co-ordinate powers, each supreme in itself, and each fettered by the Constitution, was created. “The courts of law, State and Federal, held a place in our system unparalleled in the political system of other countries,” says Thorpe in his Constitutional History. The same learned author points out that in the early days of American independence the idea prevailed that the legislature, succeeding to the power of parliament, was supreme; and that in 1787 the Court of Conference of North Carolina declared an act void for taking away the right of trial by jury, and its decision was vigorously assailed. It was, however, followed by other courts, and the principle was imbedded in the Constitution of the United States and the several States. 2 Thorpe, Con. History U. S. pp. 462-465. In 1803 the question came before the Supreme Court of the United States in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, and was forever put at rest by the decision of Chief Justice Marsh are. On this point the opinion is obiter dictum, but its reasoning ended all controversy on the subject, and made it clear that it was not only the right, but the solemn duty, of the judiciary to declare void any legislation violative of the Constitution. The chief'justice asked: “To what purpose are powers limited, and to-what purpose is that limitation committed to writing, if these limitations may at any time be passed by those intended to be restrained?” The answer was obvious. This subject was reviewed by the Supreme Court of the United States in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, and it was again reiterated, that “the courts must obey the Constitution, rather than the law-making department of government, and must, upon, their own responsibility, determine whether, in any particular case, those limits have been- passed.” It is uncontrovertibly true that it is the duty of this court to determine whether the constitutional limitation that “no State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the State, for defraying the necessary expenses of government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly,” has been overridden by the act in question. The act is sought to be sustained as one “for defraying the necessary expenses of government.” The argument is two-fold: (1) That the determination of what constitutes the necessary expenses of government is a matter exclusively for the General Assembly, and not the courts ; and (2) that this is a necessary expense of government, within the meaning of the above-quoted clause. .
1. Is the Legislature the final arbiter of what is a “necessary expense of government?” The same question in different form has often been before the courts, and a few of the cases may be selected to show the trend of decision. The Constitution of South Carolina provided: “Lor the purpose of defraying extraordinary expenditures, the State may contract public debts, but such debts shall be authorized by law for some single object to be distinctly stated.” The Legislature passed an act authorizing a public debt to be created “for the relief of the treasury.” The court said: “The position taken by one of the counsel for appellants that the question whether a debt proposed to be contracted is for the purpose of defraying an ordinary or extraordinary expenditure is one exclusively for the determination of the Legislature, and the fact that they authorized the loan must be regarded as sufficient evidence that its object was to meet an extraordinary expenditure, would, it seems to us, render the constitutional provision wholly nugatory. Such a provision was undoubtedly inserted as a check upon the power of the Legislature to contract public debts, and it follows necessarily that it cannot determine conclusively the limits of its powers in this respect; for otherwise there would be no check upon its powers except its own will.” Whaley v. Gaillard, 21 S. C. 560. This is equally true in this case. If this appropriation is not one “for defraying the necessary expenses of .government,” then the check upon the Legislature inserted in the Constitution from passing such bills without a “majority of two-thirds of both houses of the General Assembly” is wholly nugatory; for, if a majority of the Legislature is the sole judge of its power, it could declare any appropriation to be one for “defraying the necessary expenses of government,” and leave its own will the sole check upon the treasury. In Georgia the Constitution forbids the Legislature from delegating to any county the right to levy a tax except for purposes therein mentioned, among others, “expenses of the courts.” The Legislature passed an act requiring the county commissioner's of Fulton County to levy a tax to pay fees claimed by former city solicitors. The court said: “It may be argued, however, that the Legislature has the power to determine and define, under this paragraph, what are expenses of courts, and the courts would be bound by its definition. This may or may not be true. It is unnecessary for us to determine in this case whether the Legislature can enlarge the common and usual meaning of these words or not. It is sufficient for us to say that the Legislature did not say that the claims of the defendants in error were expenses of court.” Adair v. Bilis, 83 Ga. 464, 10 S. E. 117. In Indiana the Constitution says: “No law shall authorize any debt to be contracted on behalf of the State, except in the following cases: To meet casual deficits in the revenue; to pay the interest on the State debts, to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense.”- An act was passed authorizing a loan for the .purpose of carrying on the State government, and making-provisions for funding an outstanding temporary loan. The co'urt said: “Governments cannot be conducted without lodging power somewhere. Wherever it may be lodged, it is liable to be abused, or to be imprudently exercised. But, while we assert the power of the courts to decide on the constitutionality of every law that may be passed, we nevertheless recognize the rule is well settled which declares that when an act is passed in the exercise of a power or duty expressly committed to the Legislature, or when the validity of an act depends upon the ascertainment of facts which must have existed antecedent to the law, all that the courts can do is to inspect the act and determine from its scope and tenor and the concurrent history, of which they take judicial notice, whether or not it is apparently within the power conferred, assuming that the requisite facts were ascertained. * * * It by no means follows that the power of the Legislature is without limit or control in respect to creating or contracting debts against the State. As before remarked, courts are supposed to take cognizance of the current public history of affairs, and to construe enactments of the General Assembly in the light of concurrent history. If, under pretense that an invasion was threatened, or that insurrection was imminent, the Legislature should authorize a loan when it was a known fact to every intelligent person that the assumption was a mere pretense, courts would not hesitate to declare the act void.” ■ Other illustrations are given of legislating for one purpose under the guise of another, which the courts must arrest. Hovey v. Foster, 118 Ind. 502, 21 N. E. 39.
This case plainly marks the limits of the Legislature, and designates the class of cases where the discretion of the Legislature must control; for instance, in determining whether a general law could be made applicable to a matter covered by a special one. The Indiana court, like this court in Davis v. Gaines, 48 Ark. 370, 3 S. W. 184, holds that no issue can be made on such discretionary matters, which are addressed solely to the discretion of the Legislature. As illustrating the finality of facts determinable by the Legislature may be found cases where the Constitution requires evidence of publication of notice of local bills. This class of cases was recently discussed and the authorities reviewed in Waterman v. Hawkins, 75 Ark. 120. The appellee urges State v. Sloan, 66 Ark. 575, 53 S. W. 47, as an authority conclusive on this court that the Legislature is the sole judge of what is. necessary expense of government. In that case the then Attorney General called in question an act providing for the erection of a new capítol, and appropriating money therefor, on the ground that it was not a necessary expense of government, and consequently required two-thirds vote in each house. The court held that the Legislature was the proper forum in which the necessity for a new capítol was to be tried, and when it passed a bill in effect so declaring, then such finding was conclusive. Manifestly, this decision is right, for there was a question of fact and of legislative judgment on the necessity for such a public building, and, as aptly said in the Indiana case heretofore quoted from, “courts cannot make an issue of fact, or review the facts as such, upon which the Legislature must be presumed to have passed, in order to determine the validity of an act of the Legislature.” Had the General Assembly declared new carpets- necessary for the legislative halls, no question could be raised on that fact. The determination of it is solely with the Legislature. And in no lesser degree the housing of the State government is a matter addressing itself solely to the Legislature, and its determination of the necessity final. But it could not be questioned that if a succeeding Legislature, or several succeeding ones, should appropriate each $1,000,000 for a new capítol, these multitudinous capitals would be a pretext. The language of Mr. Justice Harlan in Mugler v. Kansas, supra, would be applicable to such legislation :“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority.” - Other instances are supposedin Hovey v. Poster, where, even in face of legislative declarations bringing the act within a certain class, if the concurrent history proved it to be an evasion of the Constitution, the courts must annul it. Therefore it is plain that, even in that class of legislation essentially in' the discretion of the Legislature, like capitols and public buildings and works and other matters of that class, the legislative authority is not beyond the power of the judiciary when it palpably invades the Constitution, and its own declarations are not conclusive on the subject. In view of these authorities, it cannot be said that the Legislature was, in the class of legislation now before the court, the final arbiter of whether the appropriation was a necessary expense of government.
2. This view brings the act itself for consideration. Read in the light of “concurrent history,” it cannot, in these days of profound peace, be sustained as necessary in order to “repel invasion and suppress insurrection.” It is gratifying to know that civil process is served and obeyed in the remotest hamlet in the State. The question recurs under the clause that this appropriation must be to defray “the necessary expenses of government,” or it is invalid. In the first place, the act bears its death wound on its face. It declares: “Whereas, in order to carry out the provisions of the act of Congress, approved January 21, 1903, it is necessary that the State render financial aid to its citizen soldiery; therefore, be it enacted,” etc. This is foreign to a declaration that the appropriation is a necessary expense of government, for the necessity for this legislation is declared to be to render financial aid to the citizen soldiery in order to obtain the benefit of an act of Congress which apportions funds to the State Guards in proportion to the representation when the State Guards hold practice marches for at least five days in each year, and assemble for drill, instruction, and practice at least 24 times a year, and other details. Hence the reason for this bill, as declared on its face, is to provide funds for practice marches, drills, instructions, etc., in order to fulfill the requirement of the acts of Congress in bringing the militia to a standard required in order to obtain more funds to be used for like purposes. The members of the General 'Assembly could well vote for this- bill, deeming it a very proper subject for an appropriation, without ever having their attention drawn to whether it was a necessary expense of government, or merely a proper expense. In fact, the bill negatives the idea that it is a necessary expense of government, and shows on its face a very proper subject for favorable consideration on other grounds; and, if two-thirds of both houses had so regarded it, then no question could be raised, but two-thirds did not regard it either proper or necessary. In the next place, aside from the declaration referred to, it cannot be said of this appropriation that it is a necessary expense of government. It is argued that the Constitution recognizes the militia, and provides for its organization, equipment, and training by the General Assembly, and therefore this appropriation made under its express sanction renders it valid as a necessary expense of government. The conclusion does not follow the premise, because the provision for this organization, equipment, and training carries no intimation or inference that the same is necessary to the government, ' but merely that it is a proper subject for legislative action. There are many similar provisions in the Constitution. For illustration, it provides that the General Assembly shall pass such laws as will foster and kid the agricultural, mining, and manufacturing interests of the State. Article 10, § 1. If the Legislature passed a law for the agriculturalists to hold county meetings at least 24 times a year, and a State meeting for five days each year, where they were trained and instructed in agriculture, no one would deny that an appropriation to meet the expenses incident to'these gatherings would be a proper field for legislation ; and yet bold would he be who asserted, as a legal proposition, that such an appropriation was a “necessary expense of government.” It has equal constitutional encouragement, and a more mandatory duty is laid on the Legislature to foster agriculture than there is is to arm, equip, and train the militia. Again, the Constitution provides: “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one may receive gratuitous instruction.” “The supervision of public schools and the execution of the laws regu-” lating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.” Const, art. 14, § § 1, 4. Certainly, article 11, providing for the organization, equipment, and training of the militia under laws to be passed by the General Assembly, is not as mandatory for such legislation as these provisions requiring the organization and maintenance of free schools under officers to be provided by the Legislature.
It is significant that, when the framers came to provide what appropriations could be made by majority vote, they classed support of the common schools on equal terms as not a part of the necessary expenses of government, and provided that these two objects and expenses to repel invasion or suppress insurrection should be the only three purposes for which .money could be voted out of the treasury without a two-thirds vote. A stronger argument could be made on the constitutionality of expenses for the maintenance of free schools as a necessary expense of State government than in favor of the militia, and yet the Constitution > makers themselves recognized that it was not within that clause, and expressly put them on equal footing. But it is argued that the militia is part of the executive branch of government, and subject to service as such. In time of invasion and insurrection it is a necessary arm of government, and the Constitution expressly provides that in such times only a majority is required to take money from the treasury to defray the expenses of militia, as- well as other expenses incident to such commotions. The Constitution makes the militia of the State consist of all able-bodied male residents between the ages of 18 and 45 years (with a few exceptions), and renders them subject to the call of the General Assembly, or, in its vacation, the Governor, to execute the laws, repel invasion, suppress insurrection, and to preserve the peace. The sheriff, in the execution of the law, the preservation of peace, and the suppression of riots and insurrection, has like power over the militia, and also over all the male inhabitants of his county. Subdivision 24, c. 49, Kirby’s Dig. The reasoning which leads to the conclusion that the training and drilling of the militia is a necessary expense of government would lead to the conclusion that the training of ejrery male inhabitant in the science of war is a necessary expense of government, for every one is subject to the same duty to the State to execute its laws and preserve its peace. The government of Germany considers such training of all its male subjects necessary for its preservation, and the result is that the empire of Germany is one great armed camp, and every citizen a trained soldier, and taxes rest heavily on the people. In consequence of this policy the flower of German youth turn to this country, where experience has taught that this burden is not necessary to government. President Washington, in his sixth annual message to Congress, said: “The devising and establishing of a well-regulated militia would be a genuine source of legislative honor and a perfect title to public gratitude. I therefore entertain a hope that the present* session will not pass without carrying to its full energy the power of organizing, arming, and disciplining the militia, and thus providing, in the language of the Constitution, for calling them forth to execute the laws of the Union, suppress insurrections, and repel invasions.” 1 Richardson, Messages & Papers of the Presidents, p. 167. Mr. Jefferson, in his first inaugural, in the enumeration of essential principles of government which ought to shape its administration, mentioned these: “A well-regulated militia, our best reliance in peace and for the first moments of war, till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense, that labor may be lightly burthened.” Id. p. 323. In presenting the cause of militia organization for favorable legislation, these greatest of the Presidents fail to present it as a necessary expense of the government, but present it as one well worthy the favorable consideration of the lawmakers. If the case could not be stronger presented when the government was just emerging from the Revolution, and when civil disorders were prevalent, and Indian warfare a menace on the border, what can be said in its favor as a necessary expense of government in these “piping times of peace ?”
The time-honored theory of a free government is that its safety depends on its citizens, not its standing army; and to that end militia organizations have always found encouragement in legislation which has heretofore been generous in titles and sparing in appropriations. Part of the laws now found in Kirby’s Digest on militia organization date back to 1845. The first appearance, however, of salaries in time of peace to militia officers, and appropriations for military training and practice, are found in this act and its prototype of 1903. These favorable considerations of militia organization and training, however, find reflection in the statutes of many of the States of the Union, in acts appropriating money for purposes in -some respects similar to the act in question. This State in 1903 appropriated $6,220 “to promote the efficiency of the State Guard,” of which $4,000 were for military encampments and practice marc'hes. There was no showing on the face of the bill that it was for any other purposes than to promote the efficiency of the militia, and this bill contains the same title, and adds in, a preamble the necessity of the appropriation in order to obtain the government aid, presumably to further promote the efficiency of the militia. This is the sole declared purpose of this legislation, and to treat it as necessary expenses of government, when the General Assembly has not so declared, and no one so declared except perchance the presiding officers of the houses in declaring the bill passed on majority votes, would be straining an act belonging to one class into another. The courts always hesitate in-differing with a co-ordinate branch of the government, but in this case the hesitation should not be so pronounced, because there is no evidence that the General Assembly has ever considered and determined that this act was a necessary expense of government. The presiding officers of both houses must have so classed it, or else it would not have been declared carried on majority votes. It may be that their attention was not called to this section of the Constitution, or in the hurry of legislative proceedings they did not have time to consider or investigate it. In fact, if they had each ruled that it required two-thirds votes, a majority could have overruled their decisions, and, without the courts determining it, a bare majority could withdraw money from the treasury, and overrule the Speaker and President, and thus set at defiance the constitutional limitations imposed upon them. The Constitution is committed to the judiciary to preserve, and, in the exercise of that duty, this act ought to be declared void.