concurring in part; dissenting in part. The issues presented, here are extremely important to every citizen of the state of Arkansas. Having no precedent or case law to guide our opinion, we are left with only our common sense and our power to reason. It is only natural that there are differences of opinion in matters of such importance which have not previously been interpreted by the courts.
In order to set forth a rational and logical basis for this concurring and dissenting opinion, I believe it is best to begin with the Preamble of the Constitution of the State of Arkansas which states:
We, the people of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government, for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and posterity, do ordain and establish this Constitution.
The source of power is described in Art. 2 § 1, Constitution of Arkansas:
All- political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.
The separate departments of government were established by the people in Art. 4 § 1 as follows:
The power of government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
The constitution next separates the three governmental departments by prohibiting any person or persons in one department from exercising any power inherent to either of the other two departments. Art. 4 § 2. Naturally, the legislative powers granted by the people rest in the Senate and House of Representatives. Neither the legislative, executive or judicial departments have any power not granted to them, by the people, in the constitution and amendments thereto.
The people declared through Art. 5 § 17 that the regular biennial session of the legislature shall not exceed 60 days unless such session is extended by a two-thirds vote of each house of the General Assembly. Several other specific restrictions were expressly provided. However, the plain reading of the constitution clearly demonstrates the people did not intend the General Assembly to remain in session for two years. It is likewise apparent that the people reserve to themselves the right to change the constitution as they think proper. Up until this time the citizens have not seen fit to change the constitution to require or allow the General Assembly to. remain in permanent session. No doubt, the people anticipated the possible need for sessions of the General Assembly between regular sessions; and, for this purpose, they wisely provided for extra sessions through Art. 6 § 19 which states:
The Governor may, by proclamation, on extraordinary occasions convene the General Assembly . . . and he shall specify . . . the purpose for which they are convened .. . after which they may, by a vote of two-thirds of all the members . . . remain in session not exceeding fifteen days.
This being a case of first impression, we should face the issue squarely and use our common sense in trying to interpret the intent of the people when they adopted the constitution. Obviously, the voting citizens expected the General Assembly to complete its business on the basis of a biennial 60-day regular session. It is also apparent that the people realized there might be times when the General Assembly could not complete its work within the 60 days allotted; therefore, they added the provision for extending the session. No doubt, the extension was intended for the time necessary to complete the business then pending before the General Assembly. It seems obvious the people expected the General Assembly to adjourn sine die after completion of all pending business.
It is not unreasonable to read into the powers granted to the legislative branch the right to recess to afford adequate time to prepare the materials necessary to intelligently complete any pending business. There is not the slightest hint that the people intended an “on again”/“off again” session extending over the entire biennium. It was with the expectation that the General Assembly would stand adjourned after completion of its business that the Governor was given authority to convene the General Assembly. Otherwise, there would have been no need to grant the Governor this power.
Even then, a safety valve was attached to the special sessions which might be called by the Governor; and, that safety valve allowed the special session the right to remain in session after the expiration of the Governor’s extraordinary session for a period of 15 days. Had the people desired the General Assembly to remain in recess after completion of pending business, this matter would have been easy and simple to state.
As noted earlier in this opinion, the people reserve the right to change the constitution as they deem proper. In furtherance of this idea, Art. 19 § 22 provided the General Assembly with the authority to propose up to three constitutional amendments during a regular session. The General Assembly was not empowered to change the constitution but was merely empowered to suggest changes for the consideration of the people. Subsequently, the people realized the General Assembly could not possibly propose all the changes the general public thought were needed; therefore, amendment VII to the constitution was adopted in 1920. This amendment specifically provided the procedure to be utilized by the people in proposing changes to the constitution. Amendment VII also provided a means for the people to ratify or reject actions taken by the General Assembly. The referendum part of amendment VII states in part:
. . . Such petition shall be filed with the Secretary of State not later than ninety days after the final adjourn- ' ment of the session at which such act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days; . . .
It appears the people had realized the General Assembly may need to recess for a period in excess of 90 days. Nevertheless, it is still obvious they expected the General Assembly to recess up to the day before the commencing of the next assembly could allow a referendum petition to be filed in March of 1981 on a measure enacted in January of 1979. Such results were clearly not intended nor envisioned by the people of Arkansas when they adopted the constitution and amendment VII.
The 72nd General Assembly convened on January 8, 1979, and remained in continuous session until April 4,1979- At that time it recessed until April 20, 1979, and on this day it convened and recessed until January 7, 1980. After meeting for ten days it then recessed, on January 17, 1980, until January 1981. Thus, we see the 72nd General Assembly has had or will have had at least four sessions during the two years for which it was elected. If the legislature has this power, it has the power to convene and recess as often as it desires for the entire two years.
I feel the majority opinion would in some instances thwart the intent of the framers of the constitution in allowing a reasonable extension of a session in order to allow for adequate preparation for completion of exceptional matters which sometimes confront the General Assembly. Although it is unusual to allow a recess as long as the one under consideration, it is not beyond reason. Therefore, I would hold under exceptional circumstances and for good cause shown a recess of several months is not absolutely beyond the limitations of the present constitution.
Nothing in this opinion is intended to indicate that this Court has any authority to supervise or control the activities of the legislature. It is, as stated in the majority opinion, an effort to determine the validity of certain actions taken by the General Assembly. It cannot be seriously argued that there is no limit to the authority of the General Assembly, and it cannot be argued that there is no limit to the power or authority of the executive or judicial branches of the government. All three branches are limited to whatever power the people delegated to them in the constitution and the subsequent amendments.
By placing limits on the regular and special sessions of the General Assembly, it is obvious there was no intent by the people to permit the legislature to remain in continuous session. Present proposals for constitutional changes do not include any provisions for them to remain in session for the entire biennium. To me, these are clear indications that the intent of the people was to allow the General Assembly enough time to complete action on all matters pending before it at a regular session.
A reasonable and logical interpretation would be to allow the General Assembly to extend a regular session for the period of time necessary to complete pending business. A necessary incident to this procedure would be to allow a recess for a period of time needed to allow a committee or committees to obtain information needed to complete the pending proposals before the entire assembly acted upon the matters.
In adherance to the ideas expressed above, I would hold the General Assembly was acting within its authority in declaring a recess to study the property tax proposal which was before it at the regular 72nd General Assembly. The fact that the proposal was modified after the recess did not change the nature of the pending business. There was, no doubt, general concern among the members of the General Assembly as to results of a recent Supreme Court decision relating to property taxes. Obviously, more information and time were needed to present a sound proposal to the people. Unless the General Assembly, or someone else, submitted an acceptable proposal, this property tax matter would have been left to the local authorities.
If the Supreme Court decision had the effect of increasing the county, city, and school district taxes, this increase would be determined by the local authorities whether to accept the higher rates or change them because they have the power to do so. If, for example, a county had over the years paid only a part of its present legal obligation, its taxes would be raised to the standards set by the constitution and combined with a vote of the local taxing authorities. On the other hand, if another county had been paying more than its share of the taxes, it would be free to vote the rate lower to whatever level it deemed proper. Thus, the taxing authority would have been left primarily to local control as it related to property taxes.
Applying this line of reasoning to the other two proposals, HJR 9 and HJR 10, I would hold these proposals were outside the authority of the General Assembly to consider at the 1980 session or any session prior to the next regular session in January 1981. These two proposals were not pending before the General Assembly when it discontinued to meet in the regular session. Neither were they listed as items to be considered at some later date.
Intervenor, taxpayer Harvey, correctly contends that SJR 1 was a matter of business pending at the time of the recess. He correctly insists it was within the scope of the unfinished business and therefore a proper matter to consider after the unusually long recess. Although it stretches the rule of reasonableness almost to the breaking point, I would agree with Harvey, and the trial court, that SJR 1 was a proper and legal subject for legislative consideration and would allow it to be considered at the next general election.
To allow HJR 9 and HJR 10 to be considered would be in violation of the idea that the General Assembly must adjourn sine die after completion of all pending business. To allow new matters to be considered when the recess was for the purpose of gathering additional information and material to complete pending matters would allow a continuous session for the entire biennium.
Therefore, I would affirm the trial court as to SJR 1 but reverse as to HJR 9 and HJR 10.
John A. Fogleman, Chief Justice, dissenting. I believe in the system of checks and balances. It works well only when the final arbiter of the boundaries between the three departments of government checks itself. The majority, in my view, is not doing that; instead, as I see it, the judicial branch has permitted itself to encroach upon the domain of the legislative branch, even to the extreme oPdeciding a question of fact, which was for independent determination by that branch. The majority fell into error by approaching the question upon the mistaken assumption that it was the duty of this court to determine what the constitution authorized the General Assembly to do. The duty of this court is to determine whether the constitution, expressly or by clear implication, prohibited it from doing what it did. I submit that it did not, so I join in the dissenting opinion of Mr. Justice Stroud.
John F. Stroud, Justice, dissenting. The majority opinion erroneously states “The question to us is one of the constitutional authority granted to the legislative branch of Arkansas government.” The question is not one of a grant of power, but rather, whether there is a limitation of power. This fundamental rule was clearly expressed in Bush v. Martineau, 214 Ark. 174, 295 S.W. 9 (1927) when the court said:
. . . [T]he Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act {Straub v. Gordon, 27 Ark. 629), and that the Legislative may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas.
This basic constitutional premise has been followed by this court throughout our statehood. State v. Ashley, 1 Ark. 513 (1839); Straub v. Gordon, 27 Ark. 625 (1872); Vance v. Austell, 45 Ark. 400 (1885); Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S.W. 590 (1894); S. Louis, I.M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938 (1911); Butler v. Board, etc., 99 Ark. 100, 137 S.W. 251 (1911); Connor v. Blackwood, 176 Ark. 139, 2 S.W. 2d 44 (1928); Adams v. Spillyards, 187 Ark. 641, 61 S.W. 2d 686 (1933); Newton v. Edwards, 203 Ark. 18, 155 S.W. 2d 591 (1941);Hickenbottom v. McCain, 207 Ark. 485, 181 S.W. 2d 226 (1944); Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961); Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964); Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85 (1968); Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857 (1974); Hand v. H&R Block, Inc., 258 Ark. 774, 528 S.W. 2d 916 (1975).
Five months ago, this court again reiterated the proposition in Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979):
It must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; St. L.I.M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677.
To determine if the three proposed constitutional amendments were validly adopted by the Arkansas General Assembly at the extended session of the legislature in January of 1980 requires a review of the relevant provisions of the Arkansas Constitution and cases construing them.
Article 5 of the Constitution establishes the Legislative Department as a separate and independent branch of government. In § 5 of that article, the date of the meeting of the General Assembly every two years is defined, but the article continues “until said time be altered by law.” The legislature has exercised that right and changed the date by the adoption of Ark. Stat. Ann. § 4-101 (Repl. 1976). It also exercised its inherent power with the adoption of Ark. Stat. Ann. § 13-339 (Repl. 1979) which changed the biennial period from two consecutive calendar years to a fiscal period beginning on July 1st and ending June 30th two years thereafter. We determined in Wells v. Purcell, supra, that as the legislature is a separate and coordinate branch of government, we have no authority to supervise or control its actions by writ of mandamus or otherwise interfere with the legislative process, but we do have the authority and power to determine the validity of its legislative acts.
There is no contention in this case that the session which began on January 7, 1980, was a special session called by the Governor. Therefore, the reconvened extended session was either a regular session or it was void, as held by the majority.
Article 19, § 22 of the Constitution, in setting out the procedure the General Assembly must follow to propose constitutional amendments at a general election, provides:
Either branch of the General Assembly at a regular session thereof my propose amendments to this Constitution . . (Emphasis added.)
The regular biennial session of the legislature may be extended beyond 60 days pursuant to Art. 5, § 17 which provides that “The regular biennial sessions shall not exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said General Assembly . . . “There is no limitation placed on the duration of such an extension in this or any other article of the constitution. The framers of the constitution did, however, impose a limitation on the duration of the extention of a special session in Art. 6, § 19:
The Governor may, by proclamation, on extraordinary occasions convene the General Assembly at the seat of government, or at a different place, if that shall have become since their last adjournment dangerous from an enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days. (Emphasis added.)
An inflexible limitation on the extension of a regular session could just as easily have been included in the document. The failure of the framers of the constitution to do so is perhaps the best evidence that they did not want a maximum stated. Some of the drafters may have had sufficient vision to anticipate that the passage of time would result in a growth and complexity of life that would require more and longer legislative sessions to handle the affairs of government. Obviously, the electorate intended to discourage, but not prohibit, long sessions by the adoption in 1913 of Amendment No. 5 to the Constitution which eliminated all per diem of legislators after 15 days of an extraordinary session and after the first 60 days of any regular session, although this restriction has since been removed. Also of significance is the fact that the constitution places no restriction on the legislature in determining when they will adjourn, with one exception not applicable here. See Art. 6, § 20.
It is not our prerogative to judge the wisdom of legislative actions nor to determine whether that body has abused the power reserved to it by the people. This court made its position very clear in that regard in Wells v. Furcell, supra, when it said:
The legislature is responsible to the people alone, not to the courts, for its disregard of, or failure to perform, a duty clearly enjoined upon it by the constitution, and the remedy is with the people, by electing other servants, and not through the courts. Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 ALR 960 (1926); Fouracre v. White, 7 Boyce (Del.) 25, 102 A. 186 (1917); Person v. Doughton, 186 N.C. 723, 120 S.E. 481 (1923). See also, In re Senate Resolution 4, 54 Colo. 262, 130 P. 333 (1913).
The majority has correctly indicated that it is for the General Assembly to decide whether it has finished its business and whether an extension of the regular session is required. But incredibly they have held that the decision of the legislature in that regard is a question of fact subject to review by this court. No authority in the constitution or in any prior decision of this court is offered in justification of that position. This encroachment into the legislative process not only substantially abuses the doctrine of separation of powers, but also casts a pall over all legislation adopted at extended sessions of the legislature.
For the reasons expressed in this opinion, I would affirm the judgment of the Chancellor in finding that the three proposed constitutional amendments were validly acted upon at a regular session of the legislature.
Fogle man, C.J., and FIolt, J., join in this dissent.