dissenting. It has never been supposed that the functions of a court include the right to read out of the constitution and statutes their obvious essentials, and to substitute matters of convenience thought by some of the judges to be wholesome from a standpoint of public emergency.
Perhaps nothing is more accurate by way of summation than the general but erroneous belief that Chief Justice Hughes of the U. S. Supreme Court once remarked that the constitution is just what the judges say it is. The statement was taken from context and is not a correct presentation of what that great official said.
But today we are having brought home to us the factual realization that in Arkansas the" constitution — far from being the fundamental law of the land — is what a majority of the court says it is or is not.
Amendment No. 42 was conceived and adopted in consequence of a praiseworthy purpose to measurably remove the Highway Commission from the control of any governor. To what extent the plan may succeed depends upon sincerity of the state’s chief executive and an unswerving course by the commissioners: a hands-off policy upon the one hand and a refusal upon the other to be influenced or coerced.
In an opinion fortunate from the standpoint of expediency and in its recognition that the constitutional maximum of $5,000 per annum allowable to state officers is not sufficient to compensate a competent engineer as Highway Director, but unfortunate in that resort is had to strange reasoning in disregard of constitutional and statutory provisions, the court’s majority holds that one designated by statute as an officer is nothing more than an employee, and by parity of logic says that neither the General Assembly nor framers of the constitution, including Amendment No. 42, knew very much about what they were doing.
The gist of the majority’s pronouncement is that the Director is not a state official within the meaning of Art. 19, § 23, of the constitution, Amendment No. 42, or any of our statutes. True, the opinion mentions what is judicially termed Enabling Act No. 123 of 1953, but whether through inadvertence or carelessness the substance of that Act is bypassed does not appear from any affirmative language. Stress is then placed upon Act 451, which appropriates for highway maintenance, the director’s office, and miscellaneous highway expenditures. We are then relegated to 42 American Jurisprudence for a determination of what the law in Arkansas is,1 together with the very comprehensive statement of Chief Justice Marshall that although an office is an employment, it does not follow that every employment is an office, for “A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without being an officer”.2
In contradiction of the very statute cited as an enabling act, the majority says, “In short, we hold that the essential requirements necessary to constitute the Director of Highways an officer are lacking, and he is an employee only”.
Now let’s see what the lawmaking authority has said. As has been shown, Amendment No. 42 creates the State Highway Commission and invests it with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper . . .” — to do what? “To enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the [Department]”.
No finesse of construction is involved when one draws from this language the idea, (a) that the Commissioners are officers, and (b) that the commission is authorized to engage two classes of persons — officers and employees. Since the commissioners are officers and the Amendment speaks of “its officers or employees”, the meaning is too clear to admit of a suspicion of a doubt.
Now the only employment mandate contained in the Amendment, § 6, is that the Commission shall appoint a Director of Highways who shall have such duties as may be prescribed by the Commission or by statute.
It is now enlightening to turn to that portion of Act 123 not mentioned in the majority opinion — a statute expressly referred to as an enabling act and constructively approved. Section 3 of Act 123 says that the Director ‘ ‘ shall be the chief executive officer of the State Highway Department”, and § 4 is an imperative that he take an oath “that he will faithfully and honestly execute the duties of the office during his continuance therein”.
Act 251 of 1949 was a legislative effort to change the Director from an officer to the role of an employee in order to justify an annual salary of $7,500. Section 2 of the Act eliminated the word “office” from the secondary oath the Director was required to take. But in 1953, with full knowledge that Amendment No. 42 required the appointment of a Director, the status was restored.
This, however, is not all. Methods by which possession of land taken for state highway purposes under the right of eminent domain is set out in Act 115 of 1953. In any proceeding instituted “by and in the name of the state”, involving the acquisition of any real property or any interest therein, or any easement for public highway purposes, the petitioner [State of Arkansas] may file with the condemnation petition, or at any time before judgment, ‘ ‘ a declaration of taking signed by the Director of Highways, declaring that said real property or any interest therein or any easement is thereby taken for the use of the State of Arkansas.”
Is this an act of sovereignty?
The history of the office of Director of Highways is interesting. By Act 65 of 1929, Ark. Stat’s, § 76-305, the Treasurer of State could not pay money on warrants drawn against the highway fund unless they were countersigned by the State Highway Engineer; and at one time bonds had to be countersigned by the Director.
Judge Butler, in Arkansas State Highway Commission v. Nelson, 191 Ark. 629, 87 S. W. 2d 394, quoted with approval this statement from a Florida case: ‘ ‘ The road department is a state agency and component part of the state government. The product of its work is state property. It exercises a part of the sovereign power of the state, . . . ” etc. Under Act 115 of 1953 a part of the sovereign poAver of the state — the initiation of proceedings to take private property for public purposes — is committed to the Director. Does he act as an employee, or as an officer 1
In mentioning various Acts the purpose here is to stress the legislative concept of the office of director. Some of these Acts may have been amended, some superseded, and any reference to them is not for the purpose of calling attention to existing substantive law, but to illustrate how the General Assembly felt when it was treating the subject. For example, consider Ark. Stat’s, § 76-201, where it was provided that any Commissioner, or the Director of Highways, could be removed by the Governor without the consent of the Senate for inefficiency, negligence of duty, or misconduct in office.
Section 76-203 imposed upon the Governor the duty of appointing a Director of Highways, who would be “the chief executive officer of the State Highway Department ’ ’. Incidentally, this is the exact language employed in Act 123 of 1953.
Section 76-207, Ark. Stat’s, provided that wherever [in the laAv then applicable] an authority is granted or duty imposed upon the chairman of the State Highway Commission, “the same shall be vested in the office of the Director of Highivays”.
Section 76-209, Ark. Stat’s, permitted the Director of Highways to employ in the Highway Department the personnel set out in detail.
Section 76-215 compels the Director to swear that “I will [not] use any information or influence I may have by reason of my official position to gain any pecuniary reward”, and by § 76-220, Ark. Stat’s, premiums on bonds required of officials or employees of tbe Highway Department were payable as public obligations.
The Governor, State Comptroller, and Director of State Highways were made an official board by Act 115 of 1935, Ark. Stat’s, § 76-228.
In Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60, we held that members of the Arkansas State Police were officers, and in actions involving official duties they could be sued in Pulaski County only.
An opinion written by Judge Frank G. Smith, Carter v. Bradley County Road Improvement Districts, 155 Ark. 288, 246 S. W. 9, dealt with the status of the State Highway Engineer who was required (like the present Director) to subscribe to an official oath. Carter, the engineer, had contracted with road improvement districts to do certain work. In a statement of facts Judge Smith said that Carter “took the oath of office” prescribed by the applicable statute. It required all officers and employees of the [Department] to take the oath of office provided by the constitution, and in addition a separate oath not to be interested in contracts, etc.
At that time the Engineer’s duties were to make surveys, investigations and inspections, and prepare such maps, plans, specifications, estimates and reports, and do such other technical work as might be required by the Department, and “He shall, under the direction of the [Commission] perform such other duties as may be required by law and may be proper and convenient for carrying out the purposes of this Act ’ ’. After citing Bradley County Road Improvement District v. Jarratt, 144 Ark. 260, 222 S. W. 14, the opinion said that the law announced in Tollman v. Lewis, 124 Ark. 6, 186 S. W. 296, was applicable.
Tallman was a commissioner of a drainage district and had been employed by the commissioners to supervise construction of a ditch. “The law under which he was proceeding”, says the decision, “did not provide that any contract made by a commissioner with the drainage district should be void, but it did require the commissioner to make oath that he would not, directly or indirectly, be interested in any contract made by the board”. The opinion then goes to this point: “So here the oath of the highway engineer must be treated as a prohibition against entering into contracts whereby he became interested, directly or indirectly”, in the result.
Quite clearly Judge Smith, and this Court’s majority, held that Carter was a public officer. Reinforcing this construction is a paragraph in the opinion on rehearing, also written by Judge Smith : “It is argued that we should not hold the contract in question void as against public policy, for the reason that on March 11, 1919, tohile Garter was filling the office of State Highway Engineer, the General Assembly passed a number of acts ’ ’ [urged in absolution] .
For venue purposes an action on the official bond of the Sheriff of Montgomery County was restricted to that county. But effect of the opinion was much broader. It included members of a posse who assisted the sheriff, and who were sued in Polk county. Edwards v. Jackson, 176 Ark. 107; 2 S. W. 2d 44.
A reconciliation of today’s opinion with what this court has formerly said, and with the statutes and constitution, can only be achieved by applying the famous comment of Mr. Justice Roberts of the U. S. Supreme Court. In characterizing a particularly objectionable decision the justice likened it to a railway ticket, good for today and one way only.
For a discussion of the propriety of citing a work of this nature see article by George Rose Smith, published in Arkansas Law Review, 1947, Vol. 1, No. 2.
With this statement no rational person would disagree. It would not, for instance, be urged that a contractor who for stipulated sum, builds a highway, is an officer; nor could it be said that a school professor who does not exercise any of the sovereign powers of the state is an officer. Many such examples might be mentioned.