concurring. While I agree that mandamus is not a proper remedy in this case, the constitutionality of the General Assembly’s extension of its regular session is too important a question to ignore. The law is well settled that a legislature cannot enact legislation after the expiration of its session. State, ex rel Heck’s Discount Center, Inc. v. Winters, 147 W. Va. 861, 132 S.E. 2d 374 (1963). See also, Dillon v. King, 87 N.M. 79, 529 P. 2d 745 (1974).
The General Assembly convened for its regular 60 day session early in 1979. It recessed on April 20, 1979, and is to remain in recess until the second Monday in January, 1981, approximately when its next regular session is to begin. While the legislature has apparently gone home, it has left the door open to recall itself at any time. It is at least possible that such a procedure infringes on the governor’s prerogative under the Arkansas Constitution to call the General Assembly into special sessions. See ARK. CONST., Art. VI, § 19.
The Arkansas Constitution provides that the General Assembly shall meet bienially for 60 days and may extend a session only by a vote of two thirds of the members of each house. ARK. CONST., Art. V, § 17. No doubt it was intended that an extended session would be used by the General Assembly to finish its business. I do not believe that the Arkansas Constitution can be fairly read to mean that the legislature can remain in session at all times.
This procedure may violate the doctrine of separation of powers in other ways. One of the reasons given by the General Assembly for going into this extended session, as it is called, is so that it may reconsider any bills disapproved by the governor. The Arkansas Constitution would seem to grant to the governor the right, at the end of its regular session, to veto any bills without the fear that the veto power would be thwarted. The General Assembly may, by holding itself ready at all times to reconsider a bill vetoed by the governor, have crossed that vague line of the separation of powers guaranteed by the constitution. ARK. CONST., Art. IV, § 1 and Art. VI, § 2.
This practice by the General. Assembly has apparently been going on for some years but it should be reconsidered. The simple fact that a definite date has been set for the termination of the extended session may not save such a practice, especially when that date is an unrealistic one, one that cannot be satisfactorily defended except by a severe strain on the interpretation of the Arkansas Constitution.
While we do not have the authority to mandamus the General Assembly regarding its business, we do have the responsibility to pass on the acts of the General Assembly and it may well be that any action taken by the General Assembly during such a session will be illegal, a consequence no doubt the General Assembly would not welcome.
George Rose Smith and Purtle, JJ., join in the concurrence.