dissenting. In respectfully dissenting to the majority view, I am convinced that Act 107 of 1959 does not violate Amendment No. 40 to the Constitution of the State of Arkansas.
In the past year it has been necessary for high schools in Pulaski County outside of the Little Rock School District to enroll students whose residences are within the Little Rock District due to that district’s high schools being closed. This influx of additional students has caused these schools to suffer unreasonable financial hardships. Act 107 provides an ingenious method whereby the financial difficulties of these schools may be relieved.
Act 107 cannot be viewed as a temporary measure simply because the high schools in Little Rock may be opened in the future. There will always be those in the Little Rock District who love their children enough to insist that they attend segregated schools.
It cannot be argued that the legislature does not have the constitutional authority to provide for the creation of school districts. There is no constitutional provision setting out the kind or number of school districts the legislature may cause to be created. In passing Act 107 of 1959 the legislature chose to create a “County Equali7,ing School District” to be composed of the existing school districts in the county. In the absence of a constitutional prohibition against the creation of such a district, how can it be said that they did not have the authority to do so.
The majority contends that the creation and operation of such a district violates Amendment No. 40. Let us examine this constitutional provision. Amendment No. 40 simply authorizes school districts to levy an annual tax (a) for the maintenance of schools, (b) for the erection and equipment of buildings, and (c) for the retirement of existing indebtedness, specifies that no tax levied, assessed and collected for the benefit of a school district shall be appropriated for any other purpose or to any other district than that for which it is levied. A careful review of the record reveals that Act 107 of 1959 does not appropriate any tax levied and collected for the benefit of one school district to another. It clearly provides that the electors of the County Equalizing School District must vote upon the millage allocation. The end result is the levying and collecting of taxes within the County Equalizing School District for use within the County Equalizing School District. Such procedure is expressly authorized by Amendment 40 wherein it is stated: “School districts are hereby authorized to levy by vote of the qualified electors respectively thereof an annual tax . . . ” The conclusion is inescapable that Act 107 of 1959 is valid. It follows and implements the' express purposes of Amendment 40 and should therefore be upheld.
Further, the Act does not offend Amendment 40 by authorizing a special election to determine whether a County Equalizing School District should be established. The only special election which is violative of that Amendment is one called to impose a tax to support a bond issue. Sims v. Hazen School District 2, 215 Ark. 536, 221 S. W. 2d 401.
In Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. this Court said:
“Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this Court. First, that the Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act (Straub v. Gordon, 27 Ark. 629), and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: ‘It is not to be doubted that the Legislature has the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.’ Second, that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act.”
Seeing no reason to deviate from the settled rules of this Court, I would accordingly reverse the judgment.