(dissenting.) I agree that a prosecuting attorney is an “officer of this State,” within the meaning of sec. 23, art. 19, of the Constitution. I agree that a taxpayer may maintain suit to compel a delinquent officer to account for fees in excess of the constitutional limit when the Attorney General refuses to act, unnecessarily delays action, or is disqualified from acting; but I do not agree that said clause of the Constitution is not self-executing and needs legislation to make it effective.
The clause reads as follows: “No officer of this -State, nor of any county, city or town shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.” Sec. 23, art. 19, Constitution.
That the Legislature can render this clause more effective than at present, and prescribe a method of enforcement and punishment for failure to obey it, I readily concede; but that a failure to prescribe a method of enforcement has defeated obedience to this plain constitutional mandate I do not regard as a sound principle of constitutional construction.
An officer of the State takes an oath to support the Constitution ; that Constitution says that he shall not receive for salary, fees or perquisites more than $5,000 net profits per annum in par funds, and that any and all sums in excess of this amount shall be paid into the State treasury.
Because the Legislature has not required monthly, quarterly or annual statements and prescribed punishment for failure to comply with this provision, is the Constitution less binding on the conscience of the officer ? If binding upon him, and he fails to obey it, is the State remediless? Is it unenforceable in a proper suit by proper parties in. a court having jurisdiction to adjust and settle the account? To my mind the answers to these questions are self-evident.
I fail to see the injustice which the majority see of paying this excess into the State treasury, instead of distributing it to the counties where derived. There is less injustice in the State receiving it than the officer retaining it when the Constitution forbids him to do so.
This court in Jones v. Jarman, 34 Ark. 323, approved this statement from Judge Cooley: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which these principles may be given the force of law.”
The constitutional provision in question lays down no mere abstract principle to be worked out by legislation, but it lays down a very concrete limit to salaries, and prescribes where the excess shall be paid.
The Attorney General, or, on his default, a taxpayer, certainly ought not to be denied the right to enforce this constitutional provision against a State officer who receives more than the legal limit of fees and fails or refuses to turn over to the State'such excess. To the extent of the excess the sum received by him is the State’s money illegally held by him. Why the Attorney General (or in proper case a taxpayer) cannot compel him to pay it over to the State, when the Attorney General or taxpayer could unquestionably prevent a like sum being taken from the State treasury, involves a distinction I fail to see.