dissenting. Rather than determine whether our cases are inconsistent, I have tried to determine whether they are consistent. Rather than see if the constitution and our cases can condone this legislation, I have sought to determine if this legislation complies with the constitution and the principles of law set forth in our cases. In doing so, I would reach an opposite result because there is a common theme that runs throughout our cases; that is, whether the amendatory legislation can stand alone on its face and notify any legislator of its purpose.
The intent of Article 5, § 23 of the constitution is to insure that members of the General Assembly are given fair notice of the effect of an amended act. Of course, that principle may not have always been consistently applied since no two pieces of legislation are the same and, therefore, our cases are not all alike. But our approach has been consistent. And that is to make certain Article 5, § 23 has some force and effect.
In Watkins v. Eureka Springs, 49 Ark. 131, 4 S.W. 384 (1886), we held a proposed amendment invalid because it was “blind legislation.” Regarding Article 5, § 23 we said:
They [The framers of the Constitution] meant only to lay a restraint upon legislation where the bill was presented in such form that the legislator could not determine what its provisions were from an inspection of it. ... The language of the provision is so broad that a liberal construction would hamper legislation, almost to the extent of prohibiting it.
The majority interprets State v. McKinley, 120 Ark. 165, 179 S.W. 181 (1915) as overruling Watkins, supra. In McKinley we did quote with approval language from an Alabama decision. But that language is consistent with our posture — the amendment must be intelligible and be able to exist separately; it cannot be unintelligible. We said in McKinley:
The purpose of the clause of the Constitution was to protect the members of the Legislature and the public against fraud and deception.
Where the new act is not complete but refers to a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist and this constitutes the vice sought to be prohibited by this clause of the Constitution.
Regarding the Act in question we said:
In the case before us, the act is very broad and comprehensive. It is complete in itself and in no manner attempts to amend or change the existing election laws.
In McKinley we also quoted from a Michigan case, People v. Mahaney, 13 Mich. 481, which said:
The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.
In City of Manila v. Downing, 244 Ark. 442, 425 S.W.2d 528 (1968), we said that Article 5, § 23 “ ... was intended to prohibit legislation drafted in such form that the legislators could not determine what its provisions were from an inspection of it. ...” We upheld the act in question, Act 124 of 1961, for the reason that it did “not contain any meaning that was not apparent on the face of the Act.” In TexarkanaForest Park Dist. No. 1 v. State Use Miller County, 189 Ark. 617, 74 S. W.2d 784 (1934), we did not construe Article 5, § 23 as strictly as .we had in other cases, but it was and is the law and has not since been questioned. It emphatically holds that a local act cannot be amended, even though the local act is made general in its application by the amendment. Evidently that principle is also overruled.
Our position heretofore was fairly summarized in Anderson, Drafting a Legislative Act in Arkansas, 2 ARK. L. REV. 382 (1948):
The Arkansas Supreme Court, however, has adopted a rather restricted construction which does not impose unreasonably severe limitations upon the amendment process. The purpose of the provision is said to bé the prevention of amendatory acts that are not complete in themselves and which, for that reason, cannot be intelligently considered by the legislature without reference to the text of the earlier act. [Emphasis added.]
I find no inconsistency in principle in these cases.
Does Act 861 meet our test? Is it complete in itself? Or does the original text have to be referred to? The trial court made a finding that the original act had to be referred to to understand the proposed amendment, and it was undisputably right in that regard. There is no way any legislator, citizen, lawyer or judge could say this legislation on its face authorized cities and towns to enact a one cent sales tax. That information is simply not there; therefore, the legislation fails our test.
The majority raises the specter of thousands of other acts being also illegal. Whether other such unconstitutional legislation exists is, of course, irrelevant. It is not within our province to tell the legislature how to conduct their business; our purpose is to interpret and enforce the constitution. Thousands of local acts have been passed in violation of amendment 14. As everyone knows, including the legislators themselves, the local acts are nonetheless illegal. Actually, Article 5, § 23 is primarily for the benefit of the General Assembly; members should only be accountable for their vote on that which is legally and intelligibly before them.
How could Act 861 have been made constitutional? In several ways. Simply by providing its purpose on its face, exactly as another act that passed the same session did. That legislation, Act 991 of 1981, authorized counties to enact a sales tax. Its title provides: “AN ACT to Authorize Counties to Levy a One Percent (1%) Sales Tax; Requiring an Election on the Issue; and for Other Purposes.” Is it too much to ask that just such information appear somewhere in the amended Act? No doubt, because of the title of Act 991, all legislators were on notice as to what the legislation was; just as surely the legislators could not know that Act 861 was authorizing cities to levy a one cent sales tax. Another way Act 861 could have been made constitutional is by providing in any section, including the emergency clause, that a one cent sales tax was being authorized. The amended legislation could also have been recited in full, leaving no doubt as to the meaning of the amendment. In my judgment any of these methods could have made Act 861 constitutional.
The precedent set by the majority will uphold the constitutionality of amendatory legislation regardless of its content and the notice it gives to legislators, if the amended act is referred to and the amendment is set forth in full.
Rather than adopting a better rule, we are diluting the constitutional provision in question and abandoning an important principle of law consistent in our cases. Rather than overrule any cases and emasculate an article of the constitution, I would declare the act void.
Since I would void the legislation because it violated Article 5, § 23, I would not reach the question of local legislation. If I did, I would not treat it so gently.
Purtle, J., joins in this dissent.