concurring. I concur in the result and all of the majority opinion except that portion which might be taken to imply that any advance payment of allowances for postage, telephone and telegraph and for “contingency” expense is violative of the Constitution of the State of Arkansas. The majority does not specify exactly which section of the Constitution would be violated by an act authorizing these payments. This leaves me without a clear understanding of the holding, although I must infer that the section contemplated is Amendment 48.
Act 2 of 1973 appropriated moneys for certain items of expenditure for the Senate. Among these are $63,000 for contingent expenses, special travel for members and other miscellaneous expenses, and $10,500 for postage for members, and $10,500 for telephone and telegraph for members. Section 3 of the act reads as follows:
That the Secretary ol the Senate of said General Assembly is hereby directed to issue vouchers evidencing all payments authorized by the General Assembly, and when such vouchers issued covering expenditures of the Senate have been approved by the Chairman of the Efficiency Committee of the Senate, the State Auditor is directed to convert such vouchers into warrants, and the Treasurer is directed to pay the sum out of the funds herein set up.
If the majority is saying that the vouchers to the individual Senators are void, and in violation of Amendment 48, as a supplement to salary, because the allowances were not disbursed as required by Act 2, then I probably could not disagree. Proper procedures for disbursement were not followed. Vouchers are to be issued to evidence payments authorized by the General Assembly. Nowhere has the General Assembly authorized payments of lump sum allowances to Senators. Vouchers issued under Act 2 are for expenditures of the Senate. Nowhere has the General Assembly authorized advances in anticipation of expenditures which have not been made and may never be made.
It was admitted that warrants were received by each of the Senators who is a party to this action for $600.00 for telephone, telegraph and postage and for $1800.00 for “personal services.” The item of personal services is not mentioned anywhere in Act 2, and if it were, an appropriation for that purpose would be a clear violation of Amendment 48 as a salary supplement. This is unimportant, however, because these Senators did actually claim that the disbursement was for “contingency” expenses which I take to fall under the appropriation for contingent expenses, special travel for members and other miscellaneous expenses. At any rate, I can find no legislative authority for disbursements of these amounts as it was made. For this reason alone, the judgments for their recovery must be sustained, even though it might possibly be said that, when disbursed without such authority, such payments were a salary supplement in violation of Amendment 48.
It would seem that it would not be necessary, and I do not think it is proper, to go into the constitutionality of Act 2 itself. Courts should not and do not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221, 29 S.W. 752; Porter v. Waterman, 77 Ark. 383, 91 S.W. 754; Smith v. Garretson, 176 Ark. 834, 4 S.W. 2d 520; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S.W. 2d 436; Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472; Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369; Mobley v. Scott, County Judge, 236 Ark. 163, 365 S.W. 2d 122; Rome v. Ahlert, 231 Ark. 844, 332 S.W. 2d 809. We have even said that where the case can be disposed of without determining the constitutional question, it is our duty to do so (Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487); that constitutional questions are never decided unless necessary (Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W. 2d 407); and that constitutional questions are not decided unless the case cannot be disposed of on any other ground (Bailey v. State, 229 Ark. 74, 313 S.W. 2d 388, cert. denied 358 U.S. 869, 69 S. Ct. 101, 3 L. Ed. 2d 101).
Our predominant rule was founded upon the language of Judge Cooley quoted in Missouri Pacific Ry. Co. v. Smith, supra. A part of that quotation follows:
In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when, consequently, a decision upon such question will be unavoidable.
In Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W. 2d 211, we did not reach constitutional arguments there made “in accord with our long-standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case,” citing Martin v. State, 79 Ark. 236, 96 S.W. 372 and Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837.
A compelling reason for abiding by our well established rule in this case is the desirability for avoiding unnecessary confrontations between departments of government. Furthermore, we should recognize that, even though the General Assembly is the repository of all sovereign powers not reserved by the people or not constitutionally delegated to one of the other two departments, it also has the obligation to support the Arkansas Constitution. We should presume thát it has and will, in the absence of convincing evidence to the contrary.
If we must treat the matter, I can only agree that allowances to members of the General Assembly in excess of their salaries has not been prohibited by our constitution since the adoption of Amendment 15 in 1928. Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279. I further agree that Act 2 of 1973 is not unconstitutional.
I must also agree that we could not approve the act if it were clearly a sham to evade constitutional prohibitions. It is a proper exercise of the power of judicial review of statutes to strike down legislative action when it is manifestly for the purpose of .evading the constitution and this court has not hesitated to do so. See Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991; Union Carbide & Carbon Corp. v. White River Distributors, Inc., 224 Ark. 558, 275 S.W. 2d 455. The legislature cannot do indirectly what the constitution prohibits it from doing directly. Cragar v. Thompson, 212 Ark. 178, 205 S.W. 2d 180; Texarkana - Forrest Park Dist. No. 1 v. State, 189 Ark. 617, 74 S.W. 2d 784. In exercising this judicial power, however, we should never assume that the legislative branch, an independent, coordinate department of government, will not uphold the constitution in the exercise of its powers. We certainly should not assume that it will attempt to evade the Arkansas Constitution. Furthermore, the courts have no power to inquire into the wisdom, advisability, expediency, or propriety of legislation not violative of the constitution. These are matters solely for consideration of the legislative department, whose responsibility to the ultimate sovereign, the people, is at least as great as that of the judicial branch. Ward v. Bailey, 198 Ark. 27, 127 S.W. 2d 272; Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421; Reed v. Hundley, 208 Ark. 924, 188 S.W. 2d 117; Fugett v. State, 208 Ark. 979, 188 S.W. 2d 641; Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210; Longstreth v. Cook, 215 Ark. 72, 220 S.W. 2d 433; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478.