dissenting. I do not agree with the majority opinion. Having served in the State Senate and thus fully realizing the disastrous effects the opinion by the majority will have on future deliberations of the Legislature, I cannot in good conscience remain silent.
Each two years the Legislature is faced with a multitude of problems pertaining to the financing of our State Government and the services rendered to our people. In recent years these problems have been dealt with astutely by a number of able Chief Executives and literally hundreds of dedicated men who have served in the Executive Department of our Government or as members of the House of Representatives or the Senate. The enviable position occupied by Arkansas among all the States of our Union with reference to the financial stability of our State Government is a monument to this record of ability, understanding and hard work by these people. (Compare the financial stability of Arkansas to the so-called progressive states of Michigan, Massachusetts, Minnesota, and Ohio.) Now for the first time since our Constitution went into effect in 1874, the majority of this Court, in my opinion, is encroaching upon the constitutional prerogatives of the Legislature and in so doing, I am convinced that the action of the majority will come back to haunt this Court and the people of the State in the years to come.
As I see it, the majority opinion lifts out of context of the State Constitution, Article 5, Section 30, and narrowly construes this provision, whereas all precedents in this State and throughout the Nation require this Court to resolve every reasonable doubt in favor of the constitutionality of an Act of the Legislature. Hundreds of decisions could be cited but our own early case of State v. Sloan, 66 Ark. 575, 53 S. W. 47, 74 Am. St. Rep. 106, suffices to make this point. This was the decision from which the trial court quoted in sustaining Act 442 of 1961. I feel that I cannot improve on the Court’s words which are as follows:
“In concluding this Opinion, I repeat that I am required to resolve all doubts in favor of the Act. I follow the course set by the Supreme Court of this State when it wrote the Sloan case, supra, approving Act 128 5f 1899 to build a new State Capitol and a new penitentiary and for other purposes. I adopt the words of the Supreme Court when it said ‘ giving to the Act the benefit of all reasonable doubts as to its validity, which it is our duty to do, we hold that it is constitutional. ’ ’ ’
In my opinion, the majority of this Court has concluded that all reasonable doubt should be resolved against the validity of Act 442 and in doing so has fallen into error. The majority opinion has seen fit to quote the Sloan case, supra, as authority for reversing the trial court. I think that unquestionably it is authority for affirming the trial court. In that case the Court approved an appropriation Act for the building of the new State Capitol, for the purchase of new grounds for a new State Penitentiary, for the purpose of building a new State Penitentiary and for other purposes. I cannot see and do not agree that this case is a precedent for support of the majority view in the case now under consideration.
The majority also relies upon Fletcher v. Oliver, 25 Ark. 289. Again, I do not consider this case as a precedent to support the views of the majority. In sustaining the Act under attack in that case the Court said:
‘ ‘ It is the bounden duty of courts not to defeat the will of the People, expressed through their representatives in the legislative halls, unless it is clearly manifest that some vested right or provision of the Constitution has been invaded. If the validity of every law is to depend upon the mere fact that the judiciary, if they had been legislating, would not have so arranged the law, we think that the Constitutional Convention reposed more confidence in the judicial department than sound discretion would warrant.”
The majority relies upon another earlier case in the history of our State Palmore v. The State, 29 Ark. 248. Once again the act of the Legislature under attack was held to be constitutional. This is what the Court then said:
“This section is not obnoxious to the constitutional objection interposed by appellant, for the act of 1871, from which this section was taken, does not conflict with sections 22, 23, Art. Y, Constitution of 1868, by embracing more than one subject, and in failing to copy the law, revised or altered, entire. The constitution required singleness of subject, to prevent omnibus bills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures which, alone, could not be passed. It was not intended to require that minute separation of subjects as is here claimed.’’ (Emphasis added.)
Now let ns turn to a much later case cited by the majority in support of its views, Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272. Once again the Act of the Legislature under attack was sustained as constitutional. In that case Act 223, approved March 10, 1939, was challenged on the same grounds as are alleged against the validity of Act 442 here under consideration. Section 1 of the Act then challenged set up a Board composed of the Governor, Lieutenant Governor, Attorney General, Secretary of State, Treasurer of State, State Bank Commissioner and State Comptroller, known as the State Investment Board. The Board was invested with all the powers necessary to carry out the provisions of the Act. Section 2 of the Act states:
“The primary purposes of this Act are to provide, * * *” and then goes on to provide for the retirement of “Penitentiary Funding Notes”, “Outstanding Valid Penitentiary Warrants”, “by the issuance of State Penitentiary Refunding Bonds”. The same treatment is given to “Arkansas State Teacher Certificates of Indebtedness.” It goes on to deal with “Permanent School Bonds” issued under several earlier State Acts, with “State Debt Board Notes” issued under an earlier Act and provides for the issuance of “State Permanent School Refunding Bonds. ’ ’ Then a provision is made ‘ ‘ for the investment of a limited amount of funds in the State Treasury * * * for the purpose of providing additional revenues to pay the principal and interest of bonds which are now and which may hereafter be charged against the State Sinking Fund. ’ ’
Sections 3, 4, 5, 6 and 7 authorizes the Board to issue the bonds, describes the character of the bonds, deals with interest rates, notice of sale and manner of sale of the bonds.
Section 8 requires that the deposit of money obtained for the bonds be credited in the State Treasury to designate funds.
Section 9 creates a “Bond Purchase Account” in the State Treasury and other accounts.
Section 10 authorizes the Board to purchase certain full faith and credit State of Arkansas Bonds and sets out the procedure for making such purchases.
Section 11 authorizes for the use of the Board 50% of the average daily State Fund balances on the records of the Treasurer of State during a certain period for investment purposes.
Section 12 provides that the interest received from Bonds in the Bond Purchase Account shall be credited to the State Sinking Fund, and all monies thus credited to the State Sinking Fund during any fiscal year in excess of the debt service requirements for such year shall be transferred, upon certification of the State Comptroller, to the excess par value bond account, et cetera.
Section 13 provides that if the “State Depository Board” finds it necessary to sell bonds in the Bond Purchase Account for the purpose of increasing the cash account in the State Treasury to meet unusual demands for such cash, then the State Depository Board would notify the State Investment Board as to the amount of cash needed. After that the State Investment Board is authorized to decide which bonds in the Bond Purchase Account shall be offered for sale, et cetera. The procedure for the sale of the bonds is then outlined.
Section 14 provides for the distribution of money received from the sale of State-owned bonds.
Section 15 requires the State Treasurer to transfer certain funds from the “Board of Penal Institutions Fund” upon certification of the State Comptroller. It also directs the State Treasurer to transfer to the State Sinking Fund $1,000.00 each month from the cigarette tax due the Arkansas State Teachers College and then it pledges these transferred funds in payment of bonds.
Section 16 directs the State Treasurer upon certification of the State Comptroller to transfer funds from the General Revenue Fund to the State Sinking Fund when necessary to pay obligations incurred under tbe provisions ■of the Act.
Section 17 authorizes redemption of the bonds before maturity.
Section 18 appropriates $313,519.67 from the State .Sinking Fund for the purpose of paying Penitentiary Funding Notes and Warrants. It designates all monies ■collected and paid into the State Treasury as revenues available for investment in the manner provided in the Act and it appropriates out of such revenues the sum of ■$4,000,000.00 for investments. It appropriates from the State Sinking Fund $5,000.00 for paying legal notices, printing and legal and incidental expenses.
Section 19 authorizes the State Investment Board to borrow money from a bank, Trust Company, or any other lending agency or from any Federal agency and to pledge the bonds or any portion thereof purchased under the provisions of this Act for such debt. Then it provides for the use of such borrowed money. This section concludes with the following: “For the purpose of this Section there is hereby appropriated for the use of the State Investment Board the sum of $6,000,000.00. ’ ’
Section 20 is a severability clause and provides special procedure in the event of attack upon the constitutionality of the Act.
Section 21 is the emergency clause and states that the Act is necessary to meet matured and maturing obligations in order to avoid a default by the State which would jeopardize the credit of the State.
Even though this Act was assembled and arranged to meet all the various “purposes” outlined therein and made appropriations for the distinct purpose of redeeming Penitentiary Funding Notes and Warrants for the distinct purpose of correcting the financial situation for Ark. State Teachers College, for the distinct purpose of making investments, for the distinct purpose of paying for legal notices, printing, legal opinions, et cetera, and for the distinct purpose of using borrowed money as follows:
‘ ‘ Such, money so borrowed shall be used to purchase bonds in the manner and of the kind and character described in said Section 10, and the bonds so purchased by the Board may be pledged as herein provided for borrowing more money with which to purchase additional bonds and such operation of borrowing money, pledging bonds .as security for money borrowed and purchasing additional bonds may be repeated from time to time as in the discretion of the board may seem advisable.”
Chief Justice Griffin Smith, who had served very ably as Comptroller for the State, wrote the Opinion for this Court and stated that the Act did not violate Section 30 of Article 5 of the Constitution. Thus, it is clear beyond question that singleness of appropriation and singleness of purpose are not required by Article 5, Section 30 of the Constitution.
In the Palmore case, supra, this Court said the singleness of subject requirement of the Constitution was to prohibit uniting together in one measure “various distinct schemes”. Nothing was said about the Constitution prohibiting various appropriations for various purposes in one measure, just as the Legislature did in the Acts that were sustained by this Court in the Ward case, supra, and .in the Cherry case hereinafter discussed. Act 442 cannot and should not be described by this Court as a combination of schemes. To do so, in my opinion, is an affront to the more than 100 members of the House of Representatives and Senate who passed this measure. In fact, Judge Cooley in his celebrated works, Cooley’s Constitutional Limitations (6 Ed.) p. 172, in speaking of such constitutional clauses or sections as we here have under consideration .said: “The general purpose of these provisions is accomplished when a law has but one general object . . . . To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone would not only be unreasonable but would render legislation impossible.”
Following the logic of Judge Cooley, I cannot escape the conclusion that Act 442 is one well designed plan to use funds not otherwise appropriated (surplus funds) and the plan of the Act is such that money found not necessary for one purpose may be used for another, each such purpose being distinctly stated by the Legislature. I think the Legislature should be commended for its studious attention to the many agencies involved and its keen desire to meet these needs insofar as available revenues permit. I cannot understand why the majority of this Court would say that if there is a single subject in Act 442 it is limited to “money”. This is a narrow approach to a broad subject and is contrary to all precedents of this Court or any other Court in the Nation which lay down the rules for construing the Constitution.
I chose to outline Act 223 of 1939 above, at length, so as to show that instead of the case of Ward v. Bailey being a precedent to sustain the majority view, it is in reality a precedent for affirming the decree of the trial court.
Also, I could review in detail the provisions of Act 11 of the Second Special Session of the Legislature in 1934 which was sustained in the case of Cherry v. Leonard, 189 Ark. 869, wherein Mr. Justice Baker, speaking for a unanimous Court, in dealing with the subject of the numerous appropriations in the Act stated:
“The writer must confess that the wording of these appropriations is such as to give trouble, but the language used as to these appropriations must be construed ‘ by the law of reason, ’ and this may be done under the same authority as we have just above cited. It certainly cannot be found harmonious with the spirit of the act to say that it was the purpose of the Legislature to create and establish dead funds. It must have been the purpose, and we so hold, that the dates fixed in the language of these appropriations, in this particular act, was intended to fix merely the amount of money appropriated out of such funds as might arise during the particular period set out in the act and that it did not intend to say, and it does not say, expressly or impliedly, that such sums of money must be used, as being appropriated for use only during that particular period. The Legislature knew something of the financial condition of the State.” (Emphasis added.)
I think it is sufficient for the purposes of this dissent to point out that the Act which the Court approved consisted of 55 sections, making appropriations for various purposes, requiring certain transfer of funds, amending the laws of the State pertaining to highway fuel taxes, amending the laws of the State pertaining to highway vehicle taxes, creating certain Boards and defining the powers of such Boards, creating numerous positions in certain agencies appropriating for the salaries of such employees, •et cetera.
While checking the records in the Secretary of State’s office relative to the vote on Senate Bill No. 8, which became the Act 11 upheld in the Cherry case, supra, I found an interesting paradox on page 120 of the Senate House Journal for the Second Extraordinary Session of 1934. Act 442 here under consideration is timid compared to the minions and millions of dollars dealt with in Act 11 of 1934.
The majority opinion cites a number of appropriations made in Act 442 and contains this language:
“The diversified purposes embraced by Act 442 are :so clearly disconnected that the appellees do not even argue that the several appropriations relate to a single subject-matter if the question is to be tested by the various •appropriations themselves.”
Certainly I agree that if a narrow, restricted and limited construction is placed on Section 30 of Article 5 of the Constitution, each appropriation could be considered a “subject” but our Constitution itself recognizes that numerous appropriations may be contained in one appropriation Act and it authorizes the Governor to veto individual appropriations appearing in an appropriation Act without being required to veto the entire Act, Article •6, Section 17, states:
“VETOES OF ITEMS OF APPROPRIATION RILLS. — The Governor shall have power to disapprove any item or items of any bill making appropriation of money, embracing distinct items; and the part or parts of .the bill approved shall be the law, and the item or items of appropriations disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the executive veto. ’ ’
Mere multiplicity of appropriations certainly cannot be given as a valid reason for striking down an Act of the Legislature.
The majority opinion complains of “* * * the fact that the determination of what constitutes surplus funds lies entirely within the discretion and control of the Legislature.” I agree that the Legislature has this prerogative and is entitled to this prerogative in order to be able to deal with the financial problems of the State Government and this is the prerogative of the Legislature that the majority of this Court would now destroy. I would point out that the Chief Executive of this State is elected each two years, the members of the House of Representatives are elected each two years and the Senators are elected each four years. Thus the Chief Executive and the members of the Legislature are amenable to the will of the people and, in my opinion, the will of the people should control our Government and its activities and I firmly believe that this was the intention of our forebears who drafted our Constitution.
The thought of our forebears who drafted our Constitution compels me to point out that many of those able men served in the General Assembly aud on this Supreme Court in the years immediately following 1874 when the Constitution was adopted. During that period of time they reflected their construction of the Constitution in the form of statutes and court decisions which have come down to us as valuable legal precedents. In my opinion, the majority of this Court in striking down Act 442 completely ignores these valuable, honored and hallowed legal precedents, and in this case voids the rule of stare decisis.
The majority opinion places a cloud upon hundreds of appropriation Acts that have been accepted without question for almost a century. It now places a definite cloud upon numerous appropriation Acts approved by the Sixty-third General Assembly, appropriation Acts upon which the Departments of this State must rely during the biennium beginning July 1,1961. What will this Court say if the Governor’s Emergency Fund Appropriation Act is challenged. It indicates without any good reason that “claims against the State” is not a fit subject for one appropriation bill. The majority opinion strikes down Act 442 without in any way attempting to give the future Sessions of the Legislature a criterion by which to meet the meaning of Article 5, Section 30, of the Constitution which the majority opinion adopts. I am convinced that utter chaos and special session after special session will be required if the Legislature is left to grope in the dark in an effort to so arrange its Acts to meet the desires of the majority of this Court as expressed in its opinion. The door is left wide open for any taxpayer to attack any one of these Acts and no doubt they will be attacked. The inescapable result of the majority opinion is that this Court has constituted itself a super Legislature. In my opinion, the majority of this Court in its opinion in this case is making new law. It is attaching a meaning and intent to Article 5, Section 30, never before attached by this Court (or by any other court in this Nation construing an identical or similar constitutional provision) even though case after case involving this particular provision of the Constitution has been before the Court. It is significant that this Court has never before struck down an Act of the Legislature as violative of this provision of the Constitution. In taking the action it has chosen, I believe the majority of this Court is leading us into a legal wilderness wherein I predict we shall become lost and will be required to wander through a maze of suits to try to find our way out and back to cleared ground where we now stand.
As an immediate result of the majority action which strikes down a bill that received more than three-fourths majority vote in the Senate and House of the General Assembly and the approval of the Chief Executive of our State, $2,000,000.00 provided to supplement salaries fo classroom teachers may never be used for this purpose* $800,000.00 in aid to our municipalities will definitely be delayed and may never become available; construction needs for the State Penitentiary and the four industrial training schools for white and colored boys and girls found necessary by the Legislature may never come about; the State at large and some community in particular will, in all probability, be denied a new vocational trade school; a library commission building is placed in jeopardy; a number of communities in this State that had looked forward to new National Guard Armories or improved Armories will be disappointed and efforts to strengthen the defensive powers of our Nation are weakened; construction for the 75 livestock shows (State, District and County) will be delayed and may be lost forever; repairs to our State Capitol which it is the duty of this State to maintain in first class condition, repairs that any citizen can determine the need for by merely looking at the building and riding in one of the dilapidated elevators, may be eliminated; State parks that have contributed so much to the economy and growth of our State will be curtailed and the clock turned back in this field; new improvements for Prairie Grove Battleground may never come about; Arkansas Post as a National Park may be lost to our State; adequate archives for the History Commission will remain a need; diagnostic clinics for cattle, swine and poultry will not be available to the people of our State; the construction of a communications system to strengthen civil defense will be delayed and may be eliminated and repairs at A. M. & N. College will be delayed and by such delay the conditions at that school will grow worse; building needs at the Sanatorium in Booneville will not be mat; work in progress at the Children’s Colony will be brought to a halt; the building program at the State Hospital will be halted. Jobs will be denied the unemployed of this State, people who under Act 442 would have immediate employment on the many construction projects provided. Also, certain transfers of funds necessary to meet crucial needs found to exist by the Legislature will never be made. In striking down Act 442, this Court eliminates these transfers. The very workability and stability of the Be venue Stabilization Law (the Law which is responsible for the sound and enviable financial status which the State of Arkansas enjoys) is jeopardized because Act 442 establishes the necessary reserve for keeping that vital system of handling the State’s money in effect. As I have already stated, this Act is one coordinated plan for the nse of surplus funds. The mere fact that it contains a number of appropriations for various purposes does not change the one “subject” treated with in the Act, and that is “proper use and disposition of surplus funds. ’ ’
I could point out even more disastrous effects of the majority’s far reaching decision but this is already enough to prove that the decision not only will upset what appears to be a well-planned financial program for the next two years wherein Act 442 is but one of 141 appropriation Acts passed by the Sixty-third General Assembly, but will upset the financial stability of the State for all time to come.
For the reasons stated above, I would sustain the decree of the trial court. I am constrained to dissent to the majority opinion to the contrary with all the vigor at my command.