dissenting. I cannot agree with the majority opinion’s conclusion that a delegate to the Constitutional Convention is not a “civil office under this State” within the meaning and prohibition expressed in Article 5, Section 10, of the Constitution of 1874. To the contrary, I believe the better reasoning is that a Constitutional Convention delegate elected pursuant to Act 42 holds a civil office under this State within the Constitutional prohibition.
The Arkansas Constitution makes no specific reference to constitutional conventions. However, even in the absence of such a reference it is generally recognized and accepted that the legislature has the power to call a Constitutional Convention. 16 Am. Jur. 2d, Const. Law, Section 30. That right not being denied to the General Assembly by the Arkansas Constitution of 1874, it must be held to exist. Webb v. State, 176 Ark. 722, 3 S. W. 2d 1000.
Both the legislature and the convention must act under the Constitution of 1874. The legislature cannot create a body with powers or authority beyond the Constitution; it cannot create a super-body with powers or rights beyond the very Constitution that created those powers and rights. A Constitutional Convention, once assembled, may propose for popular approval any form of Constitution it may desire, subject only to superior law such as the United States Constitution. The form and mechanics of arriving at the end result, however, are procedural matters that must be conducted within the framework of our present Constitution. To hold otherwise would be to permit the legislature to amend the present Constitution. That it cannot do. The legislature in passing Acts 3 and 42, and the electorate in approving the call for a Constitutional Convention and choosing delegates thereto, did not purport to and did not in fact amend the Constitution of 1874.
Act 42 was unquestionably enacted pursuant to the authority granted by the Constitution of 1874. For instance, it had to have an enacting clause and had to be approved by a majority of each house, all as required by Constitutional mandate. It clearly was an act of the State. Being creatures of the State and of the Constitution of 1874, Acts 3 and 42, and the Constitutional Convention called thereunder, could not rise higher than the Constitution of 1874 nor possess authority beyond its provisions. Hence Article 5, Section 10, with its prohibition against legislators’ being appointed or elected to any civil office under the State, was part of the overlying Constitutional blanket.^ If, therefore, a Constitutional delegate holds a civil office, a member of the General Assembly is ineligible to serve as a delegate.
A Constitutional delegate must be either an officer or an employee. An employee holds his position by reason of a contractual relationship. A public officer exercises some of the State’s sovereign power, has statutory duties rather than contractual ones, and receives his position by appointment or election. The concept includes such ideas as a definite term, payment for services, and important duties. See Maddox v. State, 220 Ark. 762, 249 S. W. 2d 972; Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; and Vincenheller v. Reagan, 69 Ark. 460, 64 S. W. 278.
Clearly a delegate to the Constitutional Convention is not an employee. On the contrary, he is elected, has a definite term (even though relatively short), must perform the statutory duties provided by an act, and is exerfcising some of the State’s sovereign power in helping to draft a Constitution to affect all the citizens of Arkansas. The General Assembly chose its language carefully and correctly in Section 2 of Act 42 when it referred to “the office” of delegate to the Constitutional Convention.
In a substantially similar case, the Supreme Court of Michigan held that a legislator was not eligible to serve as a delegate to a Constitutional Convention. Fyfe. v. Mosher, 149 Mich. 349, 112 N. W. 725. Said the court:
“If the framers of the Constitution meant to exclude members of the Legislature from eligibility to other state offices, no language could be more comprehensive than that of ‘any other state authority.’ These are state officers elected by state authority. They receive a civil appointment from state authority. There are other provisions of the Constitution which show the intention to prevent members of the Legislature from holding other civil positions during their term of office. Section 6, art. 4, provides: ‘No person holding any office under the United States (or this state) or any county office except notaries public, officers of the militia and officers elected by townships, shall be eligible to or have a seat in either house of the Legislature, and all votes given for any such person shall be void.’ The purpose of these provisions is ‘to preserve a pure public policy,’ or as we said in Ellis v. Lennon, 86 Mich. 468, 49 N. W. 308, speaking through Justice McGrath, ‘to prevent officers from using their official position in the creation of offices for themselves or for the appointment of themselves to place.’
“We are all of the opinion that delegates to the constitutional convention came within the term ‘civil appointment’ as used in this provision of the Constitution, that they receive their appointment from state authority, and therefore that members of the Legislature which enacted the law and thus provided for the offices, fixing compensation, etc., are ineligible as delegates. They are both within the spirit and letter of the law.”
I cannot agree with the contrary view taken in Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A. 2d 388, and similar cases cited in the majority opinion.
The purpose of Article 5, Section 10, is, of course, to prevent any conflict between the legislator’s public duty and his personal interest. This opinion should not be read to imply in the slightest degree that the Appellant would place his own interest above that of the public; but that possibility would exist, now and in the future, if legislators were permitted to serve as delegates. Our Constitution seeks to prevent that possibility, and it is the duty of the Court to uphold the Constitution.
I would agree with the majority opinion’s conclusion that this Court does have jurisdiction to determine the issues raised by this case.
For the reasons cited above, I would enjoin the Appellant from serving as a delegate to the Arkansas Constitutional Convention.
Harris, C. J. and George Rose Smith, J., join in this dissent.