dissenting. I dissent. In my opinion the majority is, by judicial decree, giving the Constitution of the State of Arkansas a meaning never dreamed of by .the framers of that great and sacred document. Often when I disagree with the majority view. I am content to merely register a dissent, but in cases involving fundamental principles of constitutional law, my conscience will not permit me to remain silent. This is such a case.
In this case, the majority has declared the contracts involved to be void on the basis of a provision of Article 19, Section 15, of the Constitution of the State of Arkansas, which, according to the majority, “says what it means and means what it says. ’ ’ This provision does not say and mean to me what it says and means to the majority; it has not said and meant to those in the Executive and Legislative branches over the last eighty-eight years what it says and means to the majority; and in my opinion, it did not say and mean to its adopters what it says and means to the majority. It is easy to say that particular words are not ambiguous when read in isolation, but different words mean different things to different people, and, in different contexts the same words mean different things to the same people at different times. While it is the authority and duty of this Court to interpret the Constitution, it is, or should be, the purpose of the Court to arrive at the intended meaning of the adopters of the Constitution and to interpret the provision in accordance with that intended meaning regardless of what we now think the particular words mean. We should consider all relevant evidence, such as authoritative and well established legislative and executive expressions and interpretations, and give all relevant evidence such weight as the circumstances warrant. By so proceeding, we clearly would not be abrogating our duty, we would be discharging ib. I realize that the adopters of the Constitution may have intended that certain provisions must apply to. developments of the future not necessarily envisioned by them, and the Court should give effect to this intention when it is found to have existed. However, we should go no further in such flexible interpretations'than to accomplish the obvious and fundamental purpose of the particular constitutional provision. And, ii has been repeatedly pointed out that provisions in the nature of a penalty should be strictly construed.
As pointed out by the majority, there are two sentences in Article 19, Section 15. While there have been several cases before this Court dealing with the particular section, we have never been called upon to construe the provisions of the second sentence which are directly involved in this case. It is interesting to note that the first sentence would appear to call for legislative implementation because the requirement is for contracts to be given to the lowest responsible bidder ‘ ‘ below such maximum price and under such regulations as shall be prescribed by law”. Thus, at least this much of the section would appear not to be self-executing. See Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Myhand v. Erwin, County Judge, 231 Ark. 444, 330 S. W. 2d 68. There is no such express qualification with reference to the second sentence, therefore it is clear that the entire section is to be read together because there is a reference in the second sentence to “such contracts” and there can be no question but that the adopters of the Constitution understood and contemplated that the Legislature could act in this field. In view of this, it is all the more obvious that this Court should pay particular attention to expressions of the Legislature. In this regard, this Court has repeatedly held that the Legislature may enact implementing legislation even in the case of self-executing constitutional provisions and, when not repugnant to the Constitution, the provisions of the statute must be followed. See, among other cases, Myhand v. Erwin, supra.
I have examined this matter as thoroughly as it is humanly possible for me to do and cannot escape the conclusion that under the Constitution as written the contracts involved, are valid. My reasons are as follows:
1. We should go no further than is necessary to dispose of the issues in this case. In this regard, the sole question is whether the fifteen contracts involved are void because Mr. Harry W. Parkin, the President and a stockholder in Parkin Printing and Stationery Company, is, and at all pertinent times was, a member of the State Highway Commission. All legal requirements prerequisite to and in connection with the awarding and execution of the contracts have been met and complied with and, on the basis of a comparison with the next lowest bidder, the performance of the contracts by Parkin Printing and Stationery Company, would result in savings to the State in excess of $28,000. The contracts were awarded after competitive bidding and are between Parkin Printing and Stationery Company and the Secretary of State. Specifically, the contracts are not with the State Highway Commission.
2. The fundamental purpose of Article 19, Section 15 (both sentences) is to protect and enhance the public economy. Woodruff, Ad. v. Berry, et al, 40 Ark. 251. While it was intended that members or officers of the departments of government were not to be connected with such contracts (the applicable provision says interested in) in such a manner as to interfere in any way with the full realization of that fundamental purpose, we should interpret the provision no broader than is necessary to accomplish the desired purpose, because it is clearly a penalty or prohibitive provision. See Fiser v. Clayton, State Treasurer, and Clayton, State Treasurer v. McAmis, 221 Ark. 528, 254 S. W. 2d 315, where this Court stated, at page 536:
“It has long been the rule that penal statutes and statutes which impose burdens and liabilities unknown at common law must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed.”
While a statute was involved in the Fiser case, supra, the general principle is certainly applicable in this situation.
3. The interpretation of the particular provision of Article 19, Section 15 to include only the departments, of government referred to elsewhere in the same document (Constitution of 1874) will not only be consistent with the full realization of the purpose involved, it will enhance it. Furthermore, to me this interpretation is clearly the one intended by the adopters of the Constitution. Article 4 is entitled “Departments”, and Section 1 provides in effect that the powers of the government shall be divided into three distinct departments, legislative, executive and judicial. Section 1, Article 5 provides that the legislative power is vested in a General Assembly, consisting of the Senate and House of Representatives. Section 1, Article 6 provides that the executive department consists of a Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, and authorizes the establishment of the office of Commissioner of State Lands. The office of Lieutenant Governor was added to the executive department by constitutional amendment adopted in 1927 in which the people repeated the provisions of Section 1, Article 6. Section 1, Article 7 provides that the judicial power is vested in one Supreme Court, in Circuit Courts, in County and Probate Courts, and in Justices of the Peace. There is authority for the Legislature to vest jurisdiction in municipal corporation courts, courts of common pleas, and to establish separate courts of chancery. In the same document, the adopters provided in Article 19, Section 9 that the General Assembly shall have no power to create any permanent state office not expressly provided for by the Constitution. Therefore, in view of the prohibitive provision involved and the purpose to be accomplished, it appears crystal clear to me that a proper interpretation of the intended meaning of the adopters of the Constitution of this provision of Article 19, Section 15 is that only members and officers of the departments described above are prohibited from being interested in such contracts. If they had intended subsequent offices, boards and agencies, other than those defined as departments in the Constitution, they had the language at their command to do so. See for example the broader language appearing in the following: Section 10, Article 3 (“any office, appointment or employment in or under the government of the United States, or of this State”); Section 7 Article 5 (“nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries excepted)”); Section 10, Article 5 (“any civil office under this State”); Section 11, Article 6 (“person holding office under the authority of this State, or of the United States”); Section 22, Article 6 (“any other office or commission, civil or military, in this State or under any State, or the United States, or any other power”); Section 10, Article 7 (“holding any other office, nor hold any office of trust or profit under the State or the United States”); Section 18, Article 7 (“any other office of trust, or profit under this State or the United States”); Section 1, Article 19 (“any office in the civil departments of this State”); Section 2, Article 19 (“any office in the State”); and Section 3, Article 19 (“vacancy in any office”).
The exact language used in the provision of Article 19, Section 15, with which we are concerned, when considered in the light of precise definition of that exact language elsewhere in the same document, in the light of an express provision in Article 19, Section 9 limiting the authority of the Legislature to create additional permanent offices, in the light of the broader language used in numerous places elsewhere in the same document when a broader interpretation was obviously intended, and in the light of the purpose involved, makes the intended meaning of the adopters perfectly plain. They did not intend the penalty or prohibitive provision to apply to members or officers of subsequently created offices, boards or commissions whether or not they might, for other constitutional purposes, be properly characterised as falling within one of the three branches of government or within a combination thereof. This result is consistent with the restrictive interpretation called for and is consistent with the legislative, executive and general interpretation over the eighty-eight year period since the adoption of the Constitution of 1874. Furthermore, the interpretation results in the realization of the purpose involved.
There is nothing novel about this interpretation which, incidentally, the majority opinion describes as an adroit argument. In Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529, this Court placed an identical interpretation upon the same words. There was involved Article 5, Section 30 of the Constitution which provides:
‘ ‘ The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State. All other appropriations shall be made by separate bills, each embracing but one subject.” (Emphasis supplied).
In that case there was involved an appropriation for the Boys’ Industrial School of the State of Arkansas and the Girls’ Industrial School of the State of Arkansas. The appropriations for the maintenance of the institutions were embraced in the general appropriation bill and this was attacked on the grounds that a separate appropriation was required by the Constitution. The Attorney General defended on the ground that the Constitution divided the powers of the state government into three distinct departments and that all of the institutions of the State, including the schools, must be classified as part of the executive branch of the government. The Court pointed out that while all governmental activities must necessarily fall into one of the three classes, it did not follow that the Legislature intended that appropriations for departments that might for other or general purposes be classified as executive be included in the general appropriations bill. The constitutional definitions of the three departments of government, set forth above, were referred to by the Court and, in holding that the provisions of Article 5, Section 30 referring to the “executive, legislative and judicial departments” meant those departments as defined in the Constitution, the Court said:
“It is, in other words, an appropriation for the departments of State government and must therefore be read in the light of the definition given by the Constitution as to what constitutes those departments. . . . The control of such institutions is administrative and falls within the executive powers of government, but the control and maintenance is not a part of the expenses of the executive department of State as defined by the Constitution.” (Emphasis supplied).
Following this rule in the case at bar and recognizing that the State Highway Commission did not come into existence until many years after the adoption of the Constitution of 1874, and was not a department of government as defined in that document within the meaning of Article 19, Section 15, the prohibitive provision involved could not possibly apply to a member of the State Highway Commission.
The majority opinion completely ignores our holding in Farrell v. Oliver, supra. In my opinion, this case cannot be ignored and it cannot be distinguished. It is our duty to either overrule the holding in that case or follow it in the case now before us and thereby reverse the holding of the trial court.
It is inconceivable to me that all the members of the executive and legislative departments (including hundreds of the most able lawyers in the history of our State) could have been wrong in their interpretation of the Constitution of 1874 for these eighty-eight years.
Governor Cherry, who had served as a Judge for many years and was recognized as an able lawyer surely saw no inhibition in the Constitution to his appointment of Miss Willie Lawson to the first State Highway Commission organized under the Mack-Blackwell Amendment in 1953. Miss Willie Lawson, a highly respected and able citizen, for practical purposes stood in the same shoes then that are occupied by Mr. Harry W. Parkin today. Miss Lawson’s position was with the Democrat Printing and Lithographing Company, whereas Mr. Parkin’s position is with the Parkin Printing and Stationery Company. Neither did Governor Cherry recognize any inhibition in the Constitution of 1874 that would prohibit his appointing Mr. Cecil Lynch, an officer of the Arkansas Power and Light Company, to serve as a member of the first Highway Commission organized under the Mack - Blackwell Amendment in 1953. No one can question that the Arkansas Power and Light Company at that time sold, and still sells, fuel to the State of Arkansas. Electricity is but one form of fuel. Article 19, Section 15 applies to fuel the same as it does to printing. Someone may say that electric rates are regulated by the Public Service Commission, but this is not the end of the story. Remember, the Highway Commission would have to vote to determine whether a building to be occupied by that agency is to be air conditioned with electricity or by the use of natural gas, butane, or some other fuel. Also, the Commissioners may be called upon to vote on the issue of whether, under certain circumstances, the Highway Commission should purchase its own generators and manufacture its own electricity by the use of natural gas or some other form of fuel. The same situation involved Mr. Lawrence Blackwell when he was appointed to succeed Mr. Lynch. Mr. Blackwell served at that time as a member of the Board of Directors of Arkansas Power and Light Company. I had the privilege to serve with Mr. Blackwell in the Senate at the very time he sponsored the Mack-Blackwell Amendment. Mr. Blackwell is a lawyer of recognized ability and certainly I cannot believe that it ever occurred to him that he was disqualified by this provision of the Constitution from serving as a member of the Highway Commission even though he served also as a member of the Board of Directors of the Arkansas Power and Light Company, a company which was engaged in selling fuel to the Highway Commission, other state agencies and to the Constitutional departments of the state government. For fear, however, that someone will try to distinguish the facts that involved Mr. Lynch and Mr. Blackwell on the ground that the electric rates are fixed by the Public Service Commission, I point out that the printing rates involved in the contracts here in question were developed by competitive bidding and were approved by the Secretary of State, Auditor, Treasurer and Governor, all of whom must answer to the voters at the polls if there is any wrongdoing.
"Where does the majority opinion lead us in the future! Where will the line be drawn? There is no question but that the majority opinion means that no officers or stockholders of a gas or electric utility (their parent, companion or subsidiaries) which serve the State of Arkansas can serve on any board or commission. It also means that any officer or stockholder of an oil company or subsidiary of such company which sells gasoline, oil, or any other form of fuel to the State of Arkansas cannot serve on any board or commission. The state government cannot cut off the electricity, natural gas, the use of gasoline, motor oils and other fuels and this, under the majority view, leaves one alternative, stockholders and officers of such suppliers are disqualified from serving the state on any board or commission.
4. Public policy can be declared by the Legislature and in proper cases by the Court. In this regard, the public policy in this area is clear. In the face of rather plain statutory language prohibiting any officer, agent or employee of any agency from being financially interested, directly or indirectly, in any contract or order for any supplies, etc. furnished to any department or agency of the government, this Court in the Fiser case, supra, in furtherance of the applicable restrictive approach concluded that it was not justified in finding a legislative intent to prohibit a member of one board or commission from consummating business transactions with another agency. The conclusion of the Court was confined to the precise issue before it involving the transaction of business by the member of one board with another board. Aside from judicial declaration, the Legislature has conclusively determined the public policy applicable to the exact issue involved. The Mack-Blackwell Amendment No. 42 itself clearly contemplates legislative implementation. In Section 1 the language is that a Highway Commission is created to be “vested with all the powers and duties now or hereafter imposed by law” and all powers “to carry out fully and effectively the regulations and laws relating to the State Highway Department”. This amendment was adopted at the general election held November 4, 1952. At the next session of the Legislature starting in January 1953, Senator Blackwell was an author and sponsor of the bill that became Act 329 of 1953, and obviously was intended to cover the precise issue involved. This Act deals with beneficial interests and prohibitions and makes it unlawful for any Commission member to sell to the Agency of State with which he is connected “except in instances in which the price of such goods . . . is fixed by law or by an agency of government with which he is not connected, or in which the price of such goods ... is fixed by a contract let by another agency of state.” (Emphasis supplied). In the general area of state agency purchasing, see Act 313 of 1955 in which substantially the same language appears as is employed in Act 329 of 1953. The matter of whether Act 329 of 1953 has been repealed is immaterial because it and Act 313 of 1955 represent express legislative declaration of public policy and for that matter Act 329 of 1953 represents express legislative implementation in the exact field covered by the issue before the Court. Here, by virtue of Act 171 of 1921, the Secretary of State is the agency of state letting the contract which fixes the price of the goods going to the State Highway Commission. If not binding, certainly the legislative action should at least be highly persuasive as to the interpretation to be made by this Court. Therefore, the existing public policy in this field applicable to all state offices, boards and agencies is that a member of one office, board or agency can sell to his own agency if the price (not quantity or quality) is fixed by contract let by another agency of state. Compliance with this policy protects the State and the public from loss (or protects the public economy) and at the same time permits maximum competitive bidding and the full utilization of the most qualified persons eligible for appointment to public positions. If there is any actual wrong doing, the checks and controls inherent in our accounting techniques, inspections and procedures will bring them to light for appropriate action. Thus, the language “no member or officer of any department of the government shall in any way be interested in such contracts” in Article 19, Section 15, should properly be limited in its application to at least contracts directly with the agency of which the officer involved is connected. Such an interpretation approving these contracts is consistent with the full realization of the public purpose involved, permits maximum competitive bidding, and permits the State to obtain for its over six hundred board and agency positions the best qualified persons, without unnecessary exclusion from the ranks of those eligible for appointment.
Therefore, regardless of the approach taken, the only proper conclusion is that, under the facts in this record, the contracts in question are not void by virtue of the provisions of Article 19, Section 15 of our Constitution. To the majority opinion to the contrary, I dissent with all the vigor at my command.