dissenting.
The legislative power of the people is vested in the General Assembly, but the people have the power of referendum, which is the power to reject at the polls any act or separate item of an appropriation bill. Ark. Const, amend. 7. To insure the right of referendum, the constitution provides that the people have ninety days after adjournment of a legislative session to file a referendum petition, and that a legislative act will not become effective during that period. Id.; Fulkerson v. Refunding Bd. of Arkansas, 201 Ark. 957, 147 S.W.2d 980 (1941). An act referred to the people remains in abeyance until approved by the people. Ark. Const. amend. 7. If, however, it is necessary for the “preservation of the public peace, health and safety that a measure shall become effective without delay, and such necessity shall be stated” in the act, the act becomes effective immediately and remains in effect until there is an adverse vote upon referral. Ark. Const. amend. 7 (emphasis added).
I.
Act 1 of the First Extraordinary Session of 1995 establishes procedures for calling a constitutional convention, for rewriting the current constitution, and for submitting the rewritten constitution to the people. It provides, among other things, that of the sixty-one delegates to the convention, thirty-five shall be elected by the people and twenty-six of the delegates will be nominated from among the members of the General Assembly, to be elected by popular vote as part of the decision of the people to call a convention. Act 2 of the same session appropriates $1,100,000 to finance the convention and pay the expenses of the delegates. Both acts were signed into law by the Governor on October 19, 1995. Under ordinary circumstances the people would have had ninety days, or until January 17,1996, to refer the acts. However, the General Assembly enacted emergency clauses as part of both acts. The Governor, under authority of Act 1, then issued a proclamation setting October 23, 1995, to November 2, 1995, as the filing period for election of delegates to the constitutional convention, and December 12, 1995, as the date for a statewide special election to select the thirty-five convention delegates and for ratification of the call of the convention.
The General Assembly, in enacting emergency clauses as part of both acts, defeated the people’s right to reject at the polls the expenditure of $1,100,000 and to reject the election of only a part of the delegates to the convention. Under the specific language of the constitution, the General Assembly could take this right from the people only if it was “necessary for the preservation of the public peace, health and safety,” and “such necessity” was “stated in” the act. Ark. Const, amend. 7. This provision means that it is “necessary for the General Assembly to state the fact that constitutes an emergency.” Burroughs v. Ingram, 319 Ark. 530, 533, 893 S.W.2d 319, 320 (1995). The issue, then, is whether the General Assembly stated facts that constitute an emergency, requiring the acts to go into immediate effect.
The emergency clause of Act 1 states that the present constitution is archaic, that there is an immediate need to revise the complete document, and that piecemeal amendment is not sufficient. The emergency clause of Act 2 states that it is essential for the proper administration and provision of essential governmental programs that the expenses of the Arkansas Constitutional Convention for the 21st Century be met. Neither statement expresses an emergency. The word “emergency,” in its most accepted usage, means some sudden or unexpected happening that creates a need for immediate action. Burroughs v. Ingram, 319 Ark. at 535, 893 S.W.2d at 320.
The current constitution was adopted in October 1874, and, without dispute, contains some archaic provisions. Over a number of years, there have been calls by members of this court for revision of some parts of the constitution. Clark v. Union Pac. R.R., 294 Ark. 586, 593, 745 S.W.2d 600, 604 (1988) (Hickman, J., dissenting) (referring to Amend. 59 as the “Godzilla” of constitutional amendments); Linder v. Howard, 296 Ark. 414, 418, 757 S.W.2d 549, 557 (1988) (Newbern, J., concurring) (stating that to end “gamesmanship,” we must amend our constitution and unify our court system). The obsolescence of parts of the constitution is not something new, nor is it something that has suddenly happened. Rather, its obsolescence in parts has been known for a number of years, so well known that a constitutional convention was held in accordance with Act 3 of the Extraordinary Session of 1977, as amended by Act 622 of 1979, and a new constitution was proposed. The proposed constitution was defeated at the general election held on November 4, 1980, by a vote of 464,210 to 276,257. See Ark. Const, pmbl. (Publisher’s Notes). The fact that the current constitution is archaic in part and needs revision for our entry into the 21st Century is not a sudden occurrence or an unexpected event which has created a true emergency. No fair-minded person could differ in concluding that the General Assembly did not state an emergency that should cause acts appropriating $1,100,000 and providing for election of only some of the delegates to go into immediate effect, thus denying the people the right of referendum.
The chancellor studied Amendment 7 and our cases construing it, and understandably determined that the issue was whether the emergency clauses in Acts 1 and 2 stated an emergency. The chancellor held that the acts did not state an emergency. The plurality opinion reverses the chancellor’s ruling, not by directly stating that the acts contain a recitation of facts that state an emergency, but rather by taking notice of litigation involving public school funding, medicaid funding, county sales taxes, equipment purchases by local governments, and challenges to initiated and referred measures. Contrary to our practice, the argument is allowed for the first time on appeal. From these judicially noticed facts, which were not mentioned in the emergency clauses, the plurality opinion finds “truth” in the statement that piecemeal amendment to the constitution is not suitable for these ills. However, the constitution explicitly states that the facts constituting an emergency must be set out in the enactment.
The plurality opinion disregards the express language of the constitution that provides that the fact constituting the emergency must be stated. The plurality opinion states that, under the authority of Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929), it can search for “truth” of the stated fact by looking outside the emergency clause. Neither the constitution nor the cited case so provide. The constitutional provision says the emergency “shall be stated” by the General Assembly in the enactment. These words should be given their accepted meaning. In addition, the cited case does not lend support to the plurality opinion; instead, it wholly supports this dissent. The material part of the cited opinion is quoted below so that the reader can decide for himself or herself which opinion is accurate:
In construing this constitutional amendment in the case of Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392, it was held that all acts of the General Assembly are subject to the referendum except such laws as are necessary for the immediate preservation of the public peace, health and safety, but that it was a question exclusively for legislative determination whether a statute was necessary for the immediate preservation of the public peace, health or safety. It was also held in the case cited that, while the existence of an emergency must be declared by the Legislature so as to exclude the referendum, it was not essential that this declaration be made in the exact words of the amendment, as other words of similar import unmistakably showing the intention to declare that an emergency existed, were sufficient.
At the 1918 general election a new Initiative and Referendum Amendment was adopted. Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865. Section 4 of this amendment contains the following provisions in regard to emergency legislation:
“If it shall be necessary for the preservation of the public peace, health or safety, that a measure shall become effective without delay, such necessity shall be stated in one section, and if, upon a yea and nay vote, two-thirds of all the members elected to each house, or two-thirds of all the members elected to the city or town councils, shall vote upon separate roll-call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure, such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this subsection shall apply to city or town councils.”
It is not sufficient, under this last amendment, for the legislation merely to declare that an emergency exists, but it is necessary to state the fact which constitutes such emergency. If therefore an act is passed which does not contain an emergency clause in which the fact is stated constituting the emergency, the act does not become effective until ninety days after the adjournment of the session of the General Assembly at which it was enacted. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S.W. 2. But does this last amendment change the rule announced in the Hanson case, supra, that the existence and sufficiency of the emergency to withdraw an act from the referendum clause of the Constitution is a legislative, and not a judicial, question? We think not.
It was, no doubt, the intention of the last amendment to terminate the practice, into which the General Assembly had fallen, of placing the emergency clause indiscriminately on much of the legislation, and, as a means to this end, two requirements were imposed to withdraw legislation from the operation of the referendum power of the people. One was that it was made necessary for the bill to state the fact which constituted the emergency. The other was to require a separate and two-thirds vote of all the members elected to each house of the General Assembly in favor of the measure becoming effective without delay. In this manner the members of the General Assembly were permitted and required to vote, first, whether the bill should become a law, and then to determine whether it should become effective without delay. Both these questions are, we think, legislative and not judicial.
It will not be denied that it is a legislative question solely to determine whether a bill shall become a law. If the Legislature has any function at all, it has this one; and, this being true, it must also be true that it is the province and function of the Legislature to determine when the legislation shall become effective.
If there is an emergency, the General Assembly must state the fact which constitutes it, and must evidence the fact that they have found there was an emergency by a vote taken separate and apart from that taken on the passage of the bill itself. In this manner there is insured, theoretically, at least, the finding by two-thirds of the General Assembly that the fact recited exists and is true, and that it constitutes a sufficient reason for making the act effective without delay.
Id. at 838-40, 18 S.W.2d at 360-61.
It is now well established that the constitutional provision means that there must be some statement of fact in the emergency clause to show that a real emergency existed. See, e.g., Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995); Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957); Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939); Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); and Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929). Precedents that cannot be distinguished should be followed unless injury and injustice result. Independence Federal Bank v. Paine Webber, 302 Ark. 324, 789 S.W.2d 725 (1990).
The plurality opinion ignores the test that is explicitly set out in the constitution. The result is that, under the rationale of the plurality opinion, the General Assembly in the future might state “this is an emergency,” and the courts will then look for some basis to judicially notice “truth” in the statement.
The plurality opinion, in looking outside the acts for “truth,” takes judicial notice of ten lawsuits involving public school funding, medicaid funding, county sales tax, equipment purchases by governments, and proposed constitutional amendments, and concludes that piecemeal amendment to the current constitution is not suitable. Aside from the disregard of the constitutional mandate, there are other errors inherent in the approach. Rule 201 of the Arkansas Rules of Evidence provides that judicial notice can be taken only of adjudicative facts: Judicial notice cannot be taken of legislative facts. Advisory Committee’s Notes to the Federal Rules of Evidence. Under Rule 201 a high degree of indisputability is the essential prerequisite for judicial notice. See Ark. R. Evid. 201(b). Therefore, the only facts that can be judicially noted from these cases are the facts that the cited cases were filed and resulted in the published rulings, opinions, or holdings. Many of the cases are old, one being decided as long ago as 1981. Not a single one of the decisions establishes the judicial fact that some unexpected, sudden, “emergency” event occurred in October 1995. They state no emergency. The people’s right of referendum should not have been taken away.
Moreover, even if one accepts the plurality opinion’s use of judicial notice, and even if one overlooks the plurality opinion’s mistaken holding that the cited cases establish an emergency to avoid the piecemeal amendment of the constitution, one still must agree that an emergency was not stated in Act 2, because the piecemeal amendment recital simply is not contained in the emergency clause of Act 2. It is contained only in Act 1. Thus, even under the reasoning of the plurality opinion, the chancellor should be affirmed because Act 2 does not state an emergency.
In summary, the constitution provides that the General Assembly is authorized to make an act effective immediately “if it shall be necessary for the preservation of the public peace, health and safety” by enacting an emergency clause. “Such necessity shall be stated in one section” of the act. Ark. Const. amend. 7. This means that the General Assembly must “state the fact which constitutes such emergency.” Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939). Neither Act 1 nor Act 2 states an emergency involving public peace, health, or safety. It might have been possible to have described a deficiency in some particular of the constitution affecting public peace, health, or safety as to the emergency status of which persons might differ. Had such a fact been stated and had a mere constitutional amendment been proposed to correct such a deficiency, an emergency clause might have been appropriate. The truth is, however, that it is not possible to state an emergency requiring a rush to establish the machinery for rewriting a constitution. It should be obvious that when the creation of so fundamental a document as the premier organ of state government is at hand, the only acceptable approach must be deliberate, studied, and considered. The people should have an opportunity to take such an approach. Neither act should go into effect until ninety days after the end of the session.
II.
The plurality opinion is made effective immediately, and understandably so because of the immediacy of the forthcoming election. As a result, the losing parties will not have a chance for rehearing and cannot further contest the outcome of this case. Because of these unusual circumstances, the following comment seems appropriate.
Six justices agree that chancery court has jurisdiction. Three, in the plurality opinion, vote to reverse the chancellor on the merits of the case and remand the case to chancery court, and three, in the dissenting opinion, vote to affirm the chancellor on the merits. The writer of the opinion labeled “concurring” does not accept the vote of the six justices that the chancery court had jurisdiction and understandably refuses to vote on the merits of the case. That justice votes to reverse and dismiss, rather than remand, on the ground that the chancery court had no jurisdiction. In sum, the vote on the merits is three to reverse and remand and three to affirm.
In cases involving the constitution “the concurrence of four judges shall be necessary to a decision.” Ark. Code Ann. § 16-11-104 (1987). A judgment of the lower court will be affirmed where the majority of the judges agree to it even though they differ as to the reasons to affirm. Pollock v. C. Hennicke Co., 64 Ark. 180, 46 S.W. 185 (1897). If there is a tie vote, three-to-three, and not four concurring votes to reverse, the lower court is affirmed. Barnard & Leas Mfg. Co. v. Smith, 77 Ark. 590, 92 S.W.2d 858 (1906).
This court requires “four votes, a majority of this court, to reverse a case.” Citizens Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).
The issue is whether the “concurring” opinion is, as a matter of law, a concurring opinion, and whether there are four concurring votes. However, it is an issue that will not be decided in this case because of the immediate mandate.
Newbern, J., joins in this dissent. Roaf, J., joins in part I.