(concurring). I concur in the result reached by the majority, but I arrive at my conclusion by a process of reasoning entirely different from that contained in the majority opinion, so I give my views.
I am thoroughly convinced that the State Highway Director 1 is a State Officer. In Downey v. Toler, 214 Ark. 334, 216 S. W. 2d 60, we held that a member of the Arkansas State Police force was a State Officer; and I think that holding conclusively establishes that the State Highway Director is a State Officer.
But, having concluded that the State Highway Director is a State Officer, I then come to a study of Art. 19, § 23 of the Constitution, which is urged by the appellant as the Constitutional inhibition against any salary in excess of $5,000 to the State Highway Director. From my study of this Constitutional Section, and the cases construing it, I arrive at the conclusion that the judgment in the present case must be affirmed under the authority of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380.
Art. 19, § 23 of our present Constitution (adopted in 1874) reads:
“No officer of this State, nor 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. ’ ’
Under the authority of this Constitutional provision, the Legislature passed Act 47 of 1875, which may now be found in § 12-1801, et seq., Ark. Stats. The germane portions of this Enabling Act of*Í875 read:
“It shall be the duty of each of the following named officers, viz: the Secretary of State, Auditor of State, Treasurer of State and Commissioner of State Lands, and of each officer of any county, city, town or village receiving fees or emoluments of office, to keep a record book, in which shall be entered on each day an account of all moneys or other funds received by him, in payment of fees or by way of emolument pertaining to his office said record showing in each instance by whom, on what account and in what funds, such payment was made.
( 6
“If the total amount of the receipts of the office shall exceed in par funds, or their equivalent of value the sum of five thousand dollars ($5,000.00), then the officer shall further report the amount expended by him in the conduct of the business of his office for said year, and voucher for all such expenditures shall be produced by the officer reporting, and examined by such Judge, Mayor or other chief officer, and, if such expenditures be approved, the amount thereof shall be deducted from the gross amount or receipts as estimated as hereinbefore prescribed by the reviewing officer, and in all cases where the balance remaining in the hands of any officer shall exceed the sum of five thousand dollars ($5,000.00), or its equivalent, the excess shall at once be paid into the treasury. . . . ’ ’
With the Constitutional and Statutory provisions being as above stated, this Court decided in 1907 the case of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380. In that case, Griffin as a Taxpayer, brought suit against Rhoton, alleging: (1) that Rhoton, as Prosecuting Attorney was a State Officer; (2) that Rhoton, as such Officer, had received in excess of $5,000.00 net per annum from the Office of Prosecuting Attorney; and (3) that Rhoton had failed and refused to pay the said excess into the Treasury. The prayer was for an accounting and a payment of the excess.
The Supreme Court of Arkansas held: (1) that Rhoton was a State Officer; but (2) that Art. 19, § 23, of the Constitution was not self-executing; and (3) therefore, no action could be brought under that Constitutional provision until the Legislature passed an Enabling Act broad enough to cover such action; and (4) that the Enabling Act of 1875 did not extend to the Office of Prosecuting Attorney. The Court pointed out that the Enabling Act, as heretofore quoted, listed only the following State Officers: Secretary of State, Auditor of State, Treasurer of State, and Commissioner of State Lands. Therefore Griffin’s action as a Taxpayer against Rhoton failed, because the Constitutional provision (Art. 19, § 23, the same as here involved) was not self-executing, and the Legislature had never extended the Constitutional provision to cover the Officer there involved. Here are some of the pertinent excerpts from that opinion:
“Is the provision in question self-executing?
“Judge Cooley laid down the following general rule for determining whether or not such provisions are self-executing: ‘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 those principles may be given the force of law.’ Cooley’s Const. Lim. (7th Ed.), p. 121.
<<
“We are of the opinion that the provision is not self-executing, and that it is inoperative without legislation putting it in force.”
Griffin v. Rhoton, (supra), was decided by this Court in 1907; and I cannot find any Legislative enactment thereafter which could be called an Enabling Act to make Art. 19, § 23, of the Constitution apply to the office of State Highway Director. In fact, the 1875 Enabling Act —Act 47 of 1875 — -has never been broadened. So the effect of the holding in Griffin v. Rhoton has not been modified by the Legislature.
Furthermore, we have frequently cited Griffin v. Rhoton (supra), on this point that Art. 19, § 23 of the Constitution is not self-executing. Some of the cases are: Ark. Tax Comm. v. Moore, 103 Ark. 48, 145 S. W. 199; Gotham v. Coffman, 111 Ark. 108, 163 S. W. 1183; Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466; State v. Landers, 183 Ark. 1138, 40 S. W. 2d 432; and Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875.
Neither in Griffin v. Rhoton, nor in any of the subsequent cases, has this Court ever attempted to draw any distinction to the effect that part of Art. 19, § 23, of the Constitution might be self-executing as to salaries, but not self-executing as to fees. Neither has there been any attempt in any of the cases to say that Art. 19, § 23, was self-executing as a Constitutional limitation on the power of the Legislature to fix salaries. No: the case of Griffin v. Rhoton (supra), held that Art. 19, § 23, of the Constitution was not self-executing; and every subsequent case has assumed that the whole Section was so classified, and not a part of it.
It is not a question of what I would decide today if the matter were now here without a previous opinion.2 The point is, that either we must now overrule retrospectively Griffin v. Rhoton (supra), and every case that followed it, or we must follow Griffin v. Rhoton, which holds that Art. 19, § 23, of the Constitution is not self-executing. Faced with that alternative, I prefer to follow Griffin v. Rhoton. The results are: (1) that Art. 19, § 23, of the Constitution is not self-executing; (2) that the only Enabling Act passed by the Legislature to execute the said Constitutional provision is Act 47 of 1875 (% 12-1801, et seq., Ark. Stats.); and (3) that said Act of 1875 does not apply to the Director of State Highways. Until the Legislature enacts a more comprehensive Enabling Act to Art. 19, § 23, of the Constitution, then under Griffin v. Rhoton, this Court cannot declare void a salary appropriation like-the one in the case at bar.
Therefore, I vote to affirm the decree of the Chancery Court.
In Amendment No. 42, the title of the position is “Director of Highways.” In Act 123 of 1953, the title of the position is “Director of State Highways”; and in Act 434 of 1953, the title of the position is “State Highway Director.” These all refer to the same position.
If the matter were one here on first impression, I am inclined to believe that I would follow the reasoning contained in the opinion of the Court of Appeals of Kentucky in Shipp v. Rodes, 196 Ky. 523, 245 S. W. 157, which holds that generally prohibitive and restrictive Constitutional provisions are self-executing and may be enforced by the Courts, independently of Legislative action. The Kentucky Constitutional provision was in most essentials similar to our Constitutional provision.