I dissent, respectfully suggesting that the conclusion reached in the main opinion is not warranted by the specific or general language of the Goveimor’s proclamation and messages to the Legislature at the special session.
The constitutional provision relating to special sessions is such that the Governor need not call a session at all, but that if he does the Legislature “shall transact no legislative business except that for which it was especially convened”. It has a negative interdiction, and does not say the Legislature may pass legislation not included in the agenda. The negative char*345acter of the phraseology certainly indicates that the framers of the Constitution intended that the Governor should have plenary power to place matters before the Legislature in any restrictive way he chooses. How could a Governor more clearly limit the Legislature from considering a tax such as was imposed here on cigarettes (which is a “new and higher tax”), than by saying in clear, unmistakable language that “I am not here to propose new or higher taxes to finance the school program.” The majority opinion has failed to lend significance to what the writer considers as being highly significant words of crystal clarity. On the other hand, after examination of thousands upon thousands of words contained in the proclamation and the numerous messages of the Governor, it has emphasized only a few scattered phrases that are either explanatory, not interdictive, or which, upon careful analysis, do not negative, but actually support the statement that “I am not here to propose new or higher taxes to finance the school program.” These phrases will be referred to later on.
How more clearly could a Governor express an intention not to place the subject of this cigarette tax on the agenda than by saying, as he did in his veto message, “My contention in vetoing this bill, is that specific tax matters are not properly before the Legislature and therefore this bill is null and void.” Again, the majority opinion apparently has deemed unimportant these equally significant words, a part of this record. Is is not reasonable to believe that the framers of the Constitution had a case like this in mind when they gave the Governor the right to place before the Legislature only those matters upon which he expressly invites it to deliberate, not those which he unequivocally negates, when they said the Legislature “shall transact no legislative business except that for which it was especially convened”?
The writer subscribes to the principle enunciated in the main opinion that doubts should be resolved in favor of the constitutionality of acts of special sessions, but the converse is true, that if the executive uses language which is not doubtful, an act in derogation thereof should be favored just as emphatically by unconstitutionality. I am of the opinion that this case comes within the latter category.
The majority opinion also has said that a statute passed at a special session is presumed to be constitutional. With that I agree, but like most presumptions, that of constitutionality may be rebutted, and once having been rebutted, disappears. Could the presumption here be more strongly rebutted than by the unambiguous words of the executive when he said “I am not here to propose new or higher taxes to finance the school problem”?
Nowhere in the majority opinion can be found any defense for the principle that the expressed intention of the Governor in building an agenda for a special session should be the highest and most respected *346probative evidence in determining what that agenda is. And yet the majority opinion either deems that expressed intention unimportant or simply and arbitrarily concludes that when the executive.says “I am not here to propose new or higher taxes,” he meant to say “I am here to propose a new and higher tax, cigarette or otherwise.” With deference to the main opinion, it reasons that when the Governor uses phrases referring to “financing,” he must have meant that to include new and higher taxes, since financing of state agencies at least customarily is financed in part by taxes. But this conclusion lends itself to no form of syllogistic reasoning. After reading the thousands of words given to the Legislature by the Governor, and following the admonition of the majority that “we must look to the entire context of his messages” to find the purpose of his call, no doubt existed in the writer’s mind that it was, “not to propose new or higher taxes,” but to ask the Legislature to relieve the school fund by allocating to that fund existing state funds represented by a number of presently available sources. It is arguable that in recommending a bill which had the effect of increasing the minimum amount per class room unit from $3,300 to $3,450, there could be no escape from an increased tax burden, but the record fairly indicates that there were ample available state funds that could have satisfied the increased amount needed for the current year and until the Legislature met the following January in 'regular session. Moreover, should it be assumed that the increased amount per class room unit would entail “Higher” taxes (and we cannot indulge in such assumption), nevertheless, being a property tax, it was not a "new” tax as is the excise tax here involved. I cannot see how a request to allocate moneys presently available can be interpreted as an invitation to levy “new and higher” taxes on cigarettes in the future. It is no answer to say he mentioned several sources of possible funds and that having mentioned that the funds would have to come from some source, the field of taxation was opened up, since that is a “source.” Such contention fails of logic.
Throughout the various messages, (which are public documents, and to which the reader is referred since their length makes incorporation here impractical), there is a pattern of language showing clearly that the chief executive did not intend an agenda calling for passage of a statute imposing taxes on cigarettes or any other commodity. He said at one point, for example, that “I did not feel then, nor do I feel now that I could or can recommend higher taxes * * Again: “Any discussion of further increases in finances, however, must be related to our present tax-burden and to what we can afford.” Again: “It goes without saying that I am opposed to any increase in taxes, unless the people themselves vote to impose them.” All of which indicates his intention was to relieve the schools with present existing funds.
*347At the expense of protraction, I feel I should attempt to point out what I believe to be weaknesses of the majority opinion. A major portion of the main opinion is devoted to general principles and review of cases. I have no quarrel with the principles stated, although they are principles that place the majority’s conclusion in the most favorable light, to the exclusion of principles that would justify the veto and interpret the proclamation in a light most favorable to exclusion of the tax from the agenda. So far as the authorities cited in the opinion, and in the briefs are concerned, they are in hopeless confusion, and none is very helpful since every case of the type we have here must be decided upon its own peculiar facts. So far as they may be pertinent at all in helping us to decide the matter, the majority opinion leans more heavily on those favoring its position. I respectfully suggest that the authorities which the main opinion refuses to follow are superior in reasoning and numerosity than those it follows, and should govern here. Typical of the cases followed by the majority is Baldwin v. State, where the Governor called the Legislature for the specific purpose of reducing taxes, and the agenda was held to be such that the Legislature actually could raise taxes. Although the case does not appeal to the writer’s logic, and surely would not appeal to the reasoning of the average intelligent taxpayer, it can be justified on circuitous grounds. On the other hand, a case which the majority opinion chooses to reject, factually comes closest to our instant case. In Sims v. Weldon, 165 Ark. 13, 263 S.W. 42, 47, the Governor stated that “the financial distress of the public schools * * * has impelled me to convene you * * He expressly mentioned income taxes and a severance tax as being sources. Nevertheless, the Legislature passed a tax on cigarettes. The statute was adjudged unconstitutional, the subject matter not having been on the agenda. This case was cited favorably in a later case, with different facts and with a different result, McCarroll v. Clyde Collins Liquors, and it is suggested that the main opinion’s effort to minimize the Sims case by pointing to the McCarroll case and its different result, is not warranted by the facts or the result.
The defendant has presented a goodly number of respected authorities that even though a Governor designates a general subject in his call he may restrict the agenda to a branch or portion or phase thereof without placing the whole subject on the agenda. Although the majority opinion apparently neither espouses nor rejects these authorities and the principle they enunciate, the writer urges that these authorities represent the common sense approach and should control the instant case. Certainly they are apropos in a state like Utah, whose constitution clearly gives the Governor plenary power to present only what he chooses, and which contains a negative interdiction that the Legislature “shall transact no legislative business except that for which it was especially convened”, and *348where the executive said “I am not here to propose new or higher taxes,” and where he clearly reiterated his stand by vetoing the bill for the specific reason that it was not in the agenda.
It should be fundamental and elementary that where a chief executive has made a clear and unmistakable statement that he was not placing a subject on the agenda, any departure from such expressed intention, should, as in many civil actions, be proved by clear and convincing evidence. No such clear and convincing evidence is shown either in the majority opinion or anywhere in the record itself. Although the main opinion says we must look at the whole context of the messages to determine the purpose of the call and the agenda given, it has made reference only to a few scattered remarks, proving nothing either clearly or convincingly, but which actually are quite consistent with the statement that “I am not here to1 propose new or higher taxes,” and quite inconsistent with the idea that a tax imposed on cigarettes was on the agenda in this case. Let us examine the prevailing opinion a little more closely:
Counsel, made a point of the fact that the Governor announced that this was “a message to * * * the Legislature on the subject of school retirement and finance.” This quotation is quite consistent with the Governor’s expressed intention not to put new or higher taxes on the agenda. It is wholly consistent with the general theme throughout the messages, that the financing, though imperative, waste be accomplished with existing funds, not new taxes. The same is true of the statement of the Governor, that he was giving a “message on the all important subjects-of school retirement, finance and taxation”. It cannot be assumed that his reference to taxation indicated that he intended that the Legislature should levy new or higher taxes. In the same document and later on, the Governor said just the opposite, when he said “I am not here to propose any new or higher taxes.” The assumption is that, his reference to taxation in the introduction was in the light of what followed, and that, so far as taxation was concerned, state level new or higher taxes were not on the agenda.
The main opinion says the Governor' realized that it was up to the Legislature-to find the funds. I cannot say what the Governor realized, but assuming he did, there is nothing in such realization that is-inconsistent with an agenda calling for financing with existing funds to the exclusion of new or higher taxes. The prevailing opinion then points to 3 suggestions-made by the Governor how the Legislature could handle the problem. They quote him:
(1) “Any discussion of further increase in finances, however, must be related to our present tax burden and what we can afford.” Rather than being indicative of placing new or higher taxes on the agenda, *349the quoted language obviously negatives such a concept when the financing must be related to our present tax burden,- — not to future new or higher taxes.
(2) “The only way the increased levy on property can be postponed or avoided is to provide more money in the uniform school fund from other sources.” This statement of the Governor, made in the same document where he says no new or higher taxes, can, by no stretch of the imagination, be construed to be an invitation to levy new or higher taxes, and it is not at all inconsistent with the expressed intention not to put a tax like the one involved here on the agenda. Rather, by pointing out that the property levy could be postponed only by getting money from other sources, the Governor certainly indicated that he intended that there be no property levy, but that the increased cost was to be borne by presently available state funds, not new taxes. Hence the majority opinion can get little comfort for its conclusion from this suggestion by the Governor.
(3) “As to the source of the funds, I recommend that they be obtained by borrowing from the appropriation * * * made in the regular session to the school building fund.” Here again any idea that taxes were on the agenda is negatived by the language itself. “Borrowing” certainly is not synonymous with “taxing.” It is the antithesis.
Counsel for plaintiffs pointed out that the executive referred to plans for local tax levies. It must be remembered that in the same paragraph and in the sentence preceding his statement that “I am not here to propose new or higher taxes,” he said “It goes without saying that I am opposed to any increase in taxes, unless the people themselves vote to impose them.’’ Certainly such language clearly expresses an intention not to put new state-level taxes on the agenda. Certainly when a person says he favors the people voting for any new taxes, he is not stating that he intends that the Legislature should vote for them. The clear language negativing such procedure completely destroys any implication that the field of new and higher taxes has been either intended or submitted to the Legislature.
And now, calling attention to other language of the main opinion, the writer suggests that it supports completely the position of this dissent, when it says: “It seems clear that the Governor’s objective was to avoid the imposition of any new state tax and see that the addéd expense of the new progrann zoos [to be] supported from other sources’’. Then, after stating the Governor’s suggestions might be helpful and desirable, the prevailing opinion says we are not concerned with the wisdom of such suggestions or the statute enacted but only with the latter’s consitutionality. With such observation, I concur, — but that is the whole case, and stating the proposition is but an ipse dixit, having no probative value as to whether the Gov*350ernor did or did not mean to withhold new and higher taxes from the agenda.
There follows in the main opinion several observations and generalities as to what the Legislature did. It is not important what the Legislature did, if the Governor did not put the subject of its action on the agenda. The main opinion says we are confronted with the question as to whether the Governor can call a session to deal with a subject and by limiting the agenda to definite proposals as to how it shall be handled, formulate policy with respect to the financing of our public schools. We are not confronted with any such thing. We are confronted with the question whether the Governor, by express language, put a subj ect on the agenda, regardless of any attempt, by word or action, to formulate policy.
The prevailing opinion concludes that “We believe that the message here was of sufficient breadth that it presented the problem of school fmancing arid the providing of funds therefor.” This conclusion does not decide the issue, which is whether the Governor placed- on the agenda the matter of finances, and whether hawing 'done SO; he placed on the agenda the matter of taxation as a means of such fmancing.
The court in its conclusion makes “financing” as it applies to state agencies, synonymous with “taxing.” It is a dangerous precedent, because it is impossible to imagine a case where an agenda could be given to the Legislature, the subject mat'ter of which requires no financing. After this decision no Governor can call a special session without opening up the field of taxation generally. Future Governors who do not desire the matter of increased taxation considered by the Legislature, may hesitate to call special sessions, even though an emergency may exist. In deciding as we have, we have deserted and emasculated the constitutional provision allowing for the calling of special sessions, so far as permitting a governor to control any deliberation as to the important matter of taxation.
As a practical matter, the main opinion (1) will serve as a deterrent in the calling of special sessions, even where sorely needed, (2) destroys the constitutional provision on special sessions so far as it pertains to taxation as subject matter on an agenda, (3) invades the realm of the executive branch, since our decision tells the executive that he does not mean what he clearly says, (4) permits expansion of the questionable and possibly dangerous practice of earmarking taxpayers’ funds, (S) opens the door to bootlegging with its attendant and increasing disrespect for our laws, and (6) actually results in a net tax loss in an amount exactly equal to the amount that is represented by the number of bootlegged packages of cigarettes multiplied by 4‡.