concurring. This concurrence in no way indicates that I do not agree with the reasons and reasoning contained in the majority opinion. It is however prompted by a two-fold purpose: One, to reply to certain arguments advanced in support of Act 442; and Two, to suggest an additional reason for sustaining the conclusion reached by the majority.
One. To uphold the constitutionality of Act 442 reliance is placed on two general principles of statutory construction: (a) The presumption of constitutionality, and; (b) Legislative construction.
(a). Presumption of Constitutionality. It is readily conceded there is a well established and universally accepted principle of law to the effect that acts of the legislature are presumed to be constitutional, but it is my purpose to point out an important limitation (also universally recognized) to this principle. A clear statement of this limitation is found in 11 Am. Jur., page 732, Constitutional Law, § 99 (sub-topic, ‘ ‘ Limitation of Doctrine ”). It reads:
‘ ‘ The principles favoring liberal construction in favor of constitutionality are accompanied by limitations as well fixed in the law as the liberal doctrines themselves. The rules are well established, therefore, that it is only where the language of the act will bear two constructions that a court is justified in adopting a construction that will sustain the act, rather than one which will defeat it. The courts are not at liberty, in order to sustain a statute, to give to it a forced construction or to read into it and interpolate words which do not appear in the language enacted by the legislature. Where the language used in a statute is plain, the court cannot read words into it that are not found therein either expressly or by fair implication, even to save its constitutionality, because this would be legislation, and not construction. Hence, if the text of an act is unambiguous, it may not be rewritten to accomplish the purpose of preserving the law.” The above principle is sustained by numerous court decisions and text writers. In 16 C.J.S. at page 408, Constitutional Law, § 99 (sub-topic, “Inapplicability or Limitation of Presumption”) there appears this statement with reference to the presumption of constitutionality:
“The presumption does not apply, or its operation is given a narrower scope, where the statute shows on its face a violation of constitutional provisions; nor does it apply where such a presumption would defeat constitutional provisions. ’ ’
There is no room for argument about the validity of the rule or the validity of the limitations. I need only to mention, therefore, what has already been established by the majority opinion — the wording in Art. 5, § 30 of the Constitution is plain and unambiguous. It reads, “. . . all (other) appropriations shall be made by separate bills, each embracing but one subject.” (Emphasis supplied.) Likewise one thing is crystal clear about Act 442: no process of reasoning or strained interpretation can erase the plain fact that it contains many appropriations relating to more than one subject. It is too plain for argument that the framers of the Constitution were not referring to money when they used the word subject. If money is interpreted to be the same as the word subject, then the Constitution has been rewritten and all safeguards contained in Art. 5, § 30 have been swept away. If what we have said above is true, and I submit it is true, then the rule of presumption of constitutionality has no application in the case under consideration.
(b). Legislative Construction. The essence of the contention of appellees in this connection is that since the legislature has frequently, over a long period of years, passed acts similar to Act 442, there arises a presumption that Act 442 is constitutional. One answer to this contention is that our legislature has never before passed an act like the Act in question, hence no foundation has been laid for the application of this well recognized rule. However, regardless of the differences of opinion concerning the similarity of Act 442 to other acts, there is another reason why the rnle invoked by appellees has no application in this case. One of the authorities which clearly states the rule of presumptions in this connection is 11 Am. Jur. at page 699, and it must be conceded that such rule is generally approved by the courts of this and other states. It is pointed out however that, as in the presumption rule heretofore discussed under paragraph (a), there is a well recognized and established exception or limitation to the general rule of legislative construction. At page 698 of the authority last above cited there appears this statement:
‘ ‘ The giving weight to contemporaneous construction put upon an enactment by those charged with its execution applies only in cases of ambiguity and doubt. Plain and unambiguous constitutional provisions cannot be varied by legislative, executive, or departmental construction. There is no room for construction of a Constitution outside of the words themselves, if they are unambiguous, and the rules as to the authority of contemporaneous exposition are unimportant in such cases. The construction placed upon a constitutional provision by the legislative and executive branches of the government will not be permitted to overturn and render nugatory a clear provision of the Constitution, in cases where the meaning of a clause in the instrument is capable of two interpretations.” (Emphasis supplied.)
It is difficult to understand how fair and reasonable minds can find any doubt or ambiguity in the language of the Constitution heretofore set out or can find that Act 442 deals with only one subject. Such being the case, the rule invoked by appellees, just discussed, has no application in this litigation, and it is our right and duty to declare said Act unconstitutional. In this connection attention is called to the language used in 16 C.J.S. at page 293:
“It has become a settled canon of American jurisprudence that the final authority in determining whether or not the legislature, in enacting a statute, acted within its constitutional authority is vested in the judiciary, and that, in a proper case, it is not only the right of the courts but also their duty to consider such a question, and to declare invalid an unconstitutional statute, and this obligation of the courts to act exists no matter how desirable or beneficial the attempted legislation may be, . . . (Emphasis supplied.)
It is permissible liberty for the courts to construe related matters (in doubtful situations) as one subject, as was done in State v. Sloan, 66 Ark. 575, 53 S. W. 47, and Ward v. Bailey, Governor, 198 Ark. 27, 127 S. W. 2d 272, but it is an abuse of liberalism — -it is license— to classify a penitentiary, a training school, an armory, a diagnostic clinic,, and a state park as one subject. Therein lies the essence of the paramount issue in this litigation.
Two. Delegation of Legislative Powers. It is my judgment that Act 442 also violates Art. 4, §§ 1 and 2 of the Constitution. Said sections, in essence, provide for three separate and distinct departments of government and that neither can exercise any power belonging to either of the others. As these sections apply to an attempt by the legislative department to delegate its power to the executive department, the rules and principles are amply and clearly defined by our own decisions. Set out below are summary excerpts from four decisions of this court where acts were held not to contain unlawful delegations, of legislative power, but in which are announced certain rules that must be applied in the case under consideration. In Boyd v. Bryant, 35 Ark. 69, (at page 74) the court said:
"'egislature can not delegate the power to make, laws, but it can make a law to delegate the power to determine some fact or state of things upon which the law makes or intends to make its own action depend. ’ ’ ’
The above quotation was approved almost word-for-word, in Nall v. Kelley, 120 Ark. 277 (at page 285), 179 S. W. 840; Johnston v. Bramlett, 193 Ark. 71 (at page 74), 97 S. W. 2d 631; Gross v. Homard, 201 Ark. 391 (at page 396), 144 S. W. 2d 705.
In the following cases this court found that unlawful delegation of legislative powers existed. In the case of City of Harrison v. Snyder, 217 Ark. 528, 231 S. W. 2d 95, this court had under consideration an ordinance of the City of Harrison fixing a garbage collection fee of $1.50 per quarter for each single family dwelling house, and empowered the Mayor, the City Health Officer, and the Sanitation Committee of the City to determine the fee to be paid by commercial and industrial houses. The court, in striking down the ordinance, because of an unlawful delegation of legislative power by a Municipal Council, first made this statement, ‘ ‘ ‘ The right to delegate power by municipal authorities rests on the same principle and is controlled in the same way as the delegation of the legislative power by state . . . . ’ ” Following this, the court quoted with approval (at page 531 of the Arkansas Reports) the following:
“ ‘The rule is well settled that legislative power cannot be delegated. So far as the powers of a municipal corporation are legislative they rest in the discretion and judgment of the municipal body intrusted with them, and the general rule is that the body cannot delegate or refer the exercise of such powers to the judgment of a committee of the council, or an-administrative officer of the city.’ . . . this rule does not preclude the appointment of administrative agents for the performance of administrative or ministerial duties in making effective the legislative will. . . . ‘ There is a clear distinction between legislative and ministerial powers. The former cannot be delegated; the latter may. Legislative power implies judgment and discretion on the part of those who confer it.’ ” (Emphasis supplied.)
In Crowly v. Thornbrough, Commissioner of Labor, 226 Ark. 768, 294 S. W. 2d 62, the court struck down Act 115 of 1955 which attempted to delegate to the Secretary of Labor of the United States the right to fix a minimum wage scale to be paid in a particular area of Arkansas. The reason for the court’s action is set forth in the following excerpt from the opinion (at page 774 of the Arkansas Reports):
‘ ‘ The Act fails to establish a standard or formula by -which a wage scale may be formulated; but rather delegates to the Secretary of Labor of the United States the right to fix the minimum wage scale to be paid in a particular area of this State. The State retains no control over the Secretary of Labor of the United States, therefore the Act violates Article 4, Sections 1, 2 and Amendment 7 to our State Constitution.” (Emphasis supplied.)
It is now in order to examine briefly the provisions of Act 442 to see if it leaves any matters of judgment and discretion to the Board, whether or not the legislature retains any control over the action of the Board, and whether or not it sets forth any standard or formula for the Board to follow in determining where any building shall be located, how many shall be constructed, or which institutions shall receive assistance. Set out below is my own interpretation, very briefly stated, of what each pertinent section provides together with appropriate comments:
Section 1 says the purpose of Act 442 is to use state revenues to implement the Act. One of appellees’ arguments to sustain the Act is that it appropriates only part of the revenues. This appears to be a fallacious argument for the reason that, by the same token and the same reasoning, the legislature could hand over all of the state’s revenues to a similar board. Section 3 creates a Board composed of the Governor, two of his direct appointees and two persons employed by the University of Arkansas. It is noted that where the money is not spent for construction and improvements, the last two members are merely figureheads. Section 5 provides money for the acquisition or construction of a penitentiary, a water system for the Training School for Girls, National Guard Armories, Livestock Shows, State Parks, a Diagnostic Clinic, etc.
I can find nowhere in the Act where the legislature has retained any control over the Board. As I read it, the legislature has made the Board the sole judge of the state’s need for many, if not all, of the enumerated projects; the sole judge of the qualifications of many of the institutions applying for assistance. In this connection it is appropriate to note the well established rule that in testing the powers granted in an act of the legislature we must look to what could he done. This is not a temporary act of the legislature, and while the legislature and the people may have complete confidence in the wisdom and discretion of the present Board, it must he recognized that great abuses of discretion and judgment are possible under the Act. The Board can, in its sole discretion, (a) build a school or an armory, (b) locate the building in any town that meets its fancy, and (c) spend as much or as little money on the project as it sees fit within the limitations provided in the Act. As an illustration, the Board could help the school teachers or not help them within its own discretion. This item is emphasized because it appears to stand in a class by itself. In all other instances the appropriations appear to be absolute and unqualified, but in the case of the school teachers it reads, ‘ ‘ $2,000,000, or so much thereof as may be available.” (Emphasis supplied.) Judging the Act, as we must, by its potentialities, the Board could be so generous in providing for the other institutions as to seriously deplete the money “available” to help the teachers.
On the whole, I refuse to believe the framers of our Constitution ever once expected the legislature to relinquish to a single Board, restrained only by its own discretion, the right and power to expend tax revenues in the best interest of all the people.