dissenting. In holding that the Highway Department is a part of the executive department of government within the meaning of Article IV, Sec. 1 of the Constitution, the majority has read something into the Constitution that is not there. The majority points to no provision of the Constitution nor to any decision that supports the view that the Highway Department is a part of the executive department. On the other hand, we have a constitutional provision and decisions construing it supporting the position that the Highway Department is not a part of the executive department.
Article IV, Sec. 1 of the Constitution provides that the government of the state shall be divided into three distinct departments — the legislative, the executive and the judicial. We are not left in the dark as to the parts of government included in each department. The Constitution is specific and tells us in clear language just what each department shall consist of. As to what constitutes the executive department, Article VI, Sec. 1 of the Constitution provides: “The executive department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, all of whom shall keep their offices in person at the seat of the government and hold their offices for the term of two years and until their successors are elected and qualified, and the General Assembly may provide by law for the establishment of the office of Commissioner of State Lands.”
Thus, in clear language, the Constitution sets out in detail the various offices of the state that shall constitute the executive department, “all of whom shall keep their offices in person at the seat of government” and ‘‘hold their offices for a term of two years”.
The majority fails to point ont jnst how the Highway Commissioners will be elected every two years and how the Highway Department is to keep its “offices in person at the seat of government”. The Constitution in unambiguous language says the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General and Commissioner of State Lands and it may be fairly inferred that the secretaries, stenographers and office help of the members of the executive department constitute a part of that department, but the Constitution does not say that the Highway Department or the Highway Commissioners shall be a member of the executive department of government.
The majority suggests that if the Highway Department is not a part of the executive department, it is a fourth department of government by virtue of Amendment No. 42 to the Constitution. The answer to that is that the Highway Department was not created by the Amendment. It was created by Act 65 of 1929. It is an administrative agency of the Legislature just the same as the Public Service Commission is an administrative agency of the Legislature. In City of Ft. Smith v. Department of Public Utilities, 195 Ark. 513, 113 S. W. 2d 100, in speaking of the Department of Public Utilities, this Court said: “The Department is an administrative body created by the Legislature.”
Likewise, the Labor Department is an administrative agency. In Hickenbottom v. McCain, Commissioner of Labor, 207 Ark. 485, 181 S. W. 2d 266, the Court stated that the Legislature, acting under its police power, had created a large number of governmental agencies and departments such as the Department of Labor, Banking Department, State Board of Education, Basic Science Board, Fish and Game Commission, and State' Police Department. In the Hickenbottom case it is pointed out that the Governor, Secretary of State, Treasurer, Auditor, Attorney General, Land Commissioner and Lieutenant Governor constitute the executive department of government. Nothing is mentioned about the above named departments or the Highway Department or the Highway Commissioners being a part of the executive department.
Our Constitution was adopted in 1874. Since that time many administrative agencies have been created and this is the first time this Court has held that any administrative agency of the state is a part of the executive department of the government. Certainly the fact that the governor appoints members of the Highway Commission does not make such members a part of the executive department, any more than the appointment of a judge by the governor would make such judge a member of the executive department.
Applicable here is the language of the Court in Humphry v. United States, 295 U. S. 602, 7 L. Ed. 1611, 55 S. Ct. 869. There, in speaking of the Federal Trade Commission the Court said: “Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.” The same thing is true in the case at bar. Although the Highway Commissioners are appointed by the governor, their duties are performed without executive leave and in the contemplation of Amendment No. 42 they must be free from executive control.
Certainly the framers of the Constitution of 1874 did not intend that the prohibition in Article XVIY, Sec. 15 should apply to administrative agencies. In 1889, by Act No. 107 in respect to public printing, the Legislature treated “the presidents of the several Boards of Trustees of the State’s benevolent institutions at Little Bock and the president of the Board of Trustees of the State University at Fayetteville” as administrative agencies separate and apart from the legislative, executive and judicial departments of government.
In Oliver v. Martin, 36 Ark. 134, the Court.said: “The executive department of the state is expressly defined (our italics) by the constitution, Article VI, section 1. It consists of the governor, secretary of state, auditor, treasurer and attorney general. Subordinates in their several departments may be well enough said, also, to he of them.” It cannot be said that any member of the Highway Department or any of the Commissioners is a subordinate in any of the offices making up the executive department. Neither the governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, or Land Commissioner have any authority whatever over the Highway Department. They can give no orders regarding that department.
In my opinion, the ease of Farrell v. Oliver, 146 Ark. 509, 226 S. W. 137, is in point with the case at bar and cannot be distinguished in any reasonable manner. In the Farrell ease the issue was whether “the Boys Industrial School” and “Girls Industrial School of the-State of Arkansas” are a part of the executive department of government within the meaning of the constitution. The Court, speaking through Chief Justice Mc-Culloch said: “The Constitution defines each of the separate departments of State government. Section 1 of article 6 defines the executive department in the following language: ‘The executive department of this State shall consist of a Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, all of whom shall keep their offices in person at the seat of government ***.... In the case of Oliver v. Morton, 36 Ark. 134, it was held that ‘the executive department of the State is expressly defined by the Constitution, article 6, section 1. It consists of the Governor, Secretary of State, Auditor, Treasurer and Attorney General.’ ”
Judge McCulloch also said: “The definition is broad enough, as was said in Oliver v. Morton, supra, to embrace subordinates in the several departments, but by no reasonable stretch of the language can it include charitable institutions created by the Legislature and placed under the management of boards created for that purpose.” (our emphasis).
If the Boys and Girls Industrial Schools are not a part of the executive department within the meaning of the Constitution, to paraphrase Judge McCulloch’s language in the Farrell case, by no reasonable stretch of language can the Highway Department be classified as a part of the executive department.
The case of Fiser v. Clayton, 221 Ark. 528, 254 S. W. 2d 315, disposes of the public policy question. Section IV of Act 214 of 1943 provided: “Neither the Comptroller nor any member of his department, nor any officer, agent, or employee of any agency of the State making purchases shall be financially interested or have any personal beneficial interest, directly or indirectly in any contract or purchase order for any supplies, materials,, equipment used by or furnished to any department or agency of the State Government.”
In respect to the 1943 Statute this Court in the Fiser case said: “We dispose of the cases by holding that the language of § 4 is not sufficiently clear to justify us in saying that the legislative intent was to prohibit the member of one board or commission, officer, agent, or employee, from consummating commercial or business transactions with another agency; therefore there was nothing tangible to prohibit.” The Court also said: “Here we find the policy-declaring power operating directly and through express language upon members of the highway commission; but nowhere is there a suggestion that a commissioner shall not own stock in a corporation or be interested in an enterprise that sells to another department of the state.”
For reasons set out herein, I respectfully dissent.