concurring in part; dissenting in part. I concur fully with the majority in the conclusion that those provisions of Act 239 of 1969, which authorize the pledge of the revenues provided for by that act, are in conflict with Amendment 20 to the Constitution of 1874 and invalid. The act imposes a tax which is without question a revenue of the state.
I disagree, however, in the holding that the whole act may be held void, nor do F agree that all of Section 6(b)(2) or all of Section 6(b)(3) is violative of Amendment 20. Only those portions relating to the pledging of these revenues run afoul of the constitutional inhibition. Since 6(b)(2) and 6(b)(3) are identical in form except for the agency involved, I will set out only 6(b)(2), without the unconstitutional provisions, to illustrate that there remains a complete, independent, separable, constitutional, workable portion, consonant with the legislative intention to accomplish one of this section’s two objects, i. e., to levy a tax, of which 40 per cent would be dedicated to the improvement of our institutions for the mentally retarded,1 to wit:
Forty per cent (40%) thereof to the Arkansas Children’s Colony Board (the “Colony Board”). Funds so remitted to the Colony Board * * * shall not be deposited in the State Treasury but shall be deposited in trust in a bank or banks in this State, as the Colony Board may from time to time select and used by the Colony Board, as it shall determine, to operate, maintain, develop and improve institutional and community facilities and services for the mentally retarded, * * *
We are not authorized to declare an entire act, or even an entire section thereof, invalid because a part of the act or section is unconstitutional, unless all of the provisions of the act, or the section, are so dependent on each other that it cannot be presumed that the legislature would, have passed one without the other. If, when the unconstitutional portion is deleted, the remainder of the act or section is complete in itself and capable of being executed according to the legislative intent, wholly independent of the part rejected, we must sustain it. Ex parte Levy, 204 Ark. 657, 163 S. W. 2d 529; Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. In Brooks v. Wilson, 165 Ark. 477, 265 S. W. 53, for example, we held that, even if the provisions of an act relative to disposition of funds realized from the sale of state school lands were unconstitutional, the remaining provisions of the act regulating the manner of sale of the lands would not be affected. We reiterated the oft-stated rule that, if any special provision of an act be unconstitutional and can be stricken without affecting the validity of the residue of the act, it will be done, and the remainder of the act allowed to stand. In my opinion no better example calling for the application of the above principles could ever be found than that now before us.
It is clear that the legislative objects of Act 239 were:
(1) to levy a tax upon real estate transfers;
(2) to increase state aid to our financially disadvantaged counties;
(3) to improve the care and education of mentally retarded persons;
(4) to develop our state parks;
(5) to permit the pledge of these tax revenues to the retirement of bonds issued by the agencies designated to administer the programs relating to the mentally retarded and the state parks under authority given by other statutes.
It is only the last of these purposes that does not meet constitutional requirements. It seems clear to me that this last objective was secondary, perhaps even an afterthought. At most it was permissive. Surely the General Assembly did not mean to hinge succor to these distressed agencies upon their ability to pledge tax revenues set aside for them. I do not see how a provision could possibly be less essential, or more incidental, to the primary legislative purpose than this appendage we find unconstitutional. Removing it from the body of the act is no more fatal than the usual removal of an appendix from a normal human body.
Although no question was raised in the points relied upon by appellant as to the validity of the provision for deposit of the revenues going to the Children’s Colony Board and to the State Parks, Recreation and Travel Commission in banks rather than the state treasury, I anticipate that it may arise and consider it pertinent to consideration of the severability of the act.
There is absolutely no constitutional prohibition against such a provision and no requirement whatever that all revenues, or even all tax revenues, be deposited in the state treasury. A contention to the contrary was laid to rest completely in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595. The language of Mr. Justice McFaddin speaking for a six-judge majority in that case is so explicit and so pertinent that I take the liberty of quoting from it at length:
* * * In determining the answer to the posed question, we emphasize that the Legislature, as the supreme lawmaking body, possesses all legislative powers except those expressly or impliedly prohibited by the Constitution. State v. Ashley, 1 Ark. 513; Straub v. Gordon, 27 Ark. 625; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, 10.[2] So we examine the Constitution to see if the Legislature is prohibited from allowing the state agencies and institutions to have and disburse cash funds.
It will be observed that both in Art. V, sec. 29 and Art. XVI, Sec. 12, as previously copied, it is required that no money shall be drawn from the treasury until the same shall have been duly appropriated. There is no language in our present Constitution which requires that all of the public money shall be paid into the state treasury. Such a provision exists in the Constitutions of some States, but not in our present Constitution. For instance, in the Arkansas Constitution of 1868 there was a provision, Art. X, Sec. 17, which read:
“The general assembly shall tax all privileges, * * * and the amount thus raised shall be paid into the treasury.”[3]
Likewise, the 1875 Constitution of Missouri provides in Art. IV, sec. 43: “All revenue collected and moneys received by the State from any source whatsoever, shall go into the treasury, * *
In the 1902 Constitution of Virginia, section 186, there is this language: “All taxes, licenses, and other revenue of the State, shall be collected by its proper officers and paid into the State treasury except in pursuance of appropriations made by law; # * * ”
It will be observed that in the quoted provisions from these Constitutions there is the requirement of deposit into the treasury. But when these Constitutions are compared with the present Arkansas Constitution of 1874, it is clear that our present Constitution requires only that money in the treasury shall not be removed except by legislative appropriation. There is no requirement in the present Arkansas Constitution that all public money shall be paid into the state treasury. The absence of such a provision from our present Constitution appears to have been a studied and deliberate omission. Certainly, such omission leaves the Legislature of this State free to provide that public money derived as in this case may be deposited as cash funds, for use by the state agencies and institutions.
To buttress the conclusion reached, we point out provides that the State Treasurer: “* * * shall perform such duties as may be prescribed by law.”
Thus the Constitution clearly empowers the Legislature to decide whether the State Treasurer shall be required to receive all state funds. This Art. VI, sec. 22 of our present Constitution was so worded in light of the fact then existing that the Revised Statutes of 1856, Chap. 18, sec. 22, prescribed the Treasurer’s duties: “To receive and keep all the moneys of the State, not expressly required by law to be kept by some other person * * 4
The conclusion is inescapable that the Constitution of 1874 empowered the Legislature to state what money should be paid into the state treasury.
It was conceded by appellees in the oral argument that all cash funds of the state agencies and institutions are public moneys. The Legislature could require that all these funds be paid into the state treasury, and the Legislature could require that none of these funds be expended without appropriation by the Legislature. But the question here is not what the Legislature might do with these funds. The question is whether the Constitution requires that all these moneys be paid into the state treasury. We find no such provision. To that extent the appellant is in error in this case.
In McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428, the court, in treating the application of Art. 5, Sec. 29 and Art. 16, Sec. 12 to certain funds, clearly and unequivocally stated:
* * * and we find no express constitutional restriction upon the supreme power of the Legislature to deal with public revenues of any type prior to the time such revenues are placed in the state treasury. Therefore, since the Constitution is a restriction upon the otherwise supreme power of the Legislature rather than a grant of power to the Legislature, there would appear to be no sound constitutional reason for nullifying the express legislative action in this particular.
While it is true that we also held that the funds there involved were "cash funds” or moneys received from sources other than taxes, the decision that the constitutional restrictions did not apply was also based upon the quoted language.
Of course, there is no question about the constitutional validity of a continuing levy of taxes. Moore v. Alexander, 85 Ark. 171, 107 S. W. 395; McArthur v. Smallwood, supra. Once levied, a tax continues until it expires by its own limitation, or is repealed by a subsequent Legislature. Moore v. Alexander, supra. The latter opinion also finds no prohibition against special levies.5 Furthermore, the continuing appropriation was held invalid there solely because the funds were paid into the state treasury pursuant to the act by which they were levied. The concluding language in the opinion leaves no room for doubt on that score:
* * * and, the Legislature not having acted since that time, it is the legislative determination that this fund be conserved in the treasury until another Legislature appropriates it for the purpose for which it was created.
I earnestly submit that this court should act with great restraint in striking down an entire legislative act simply because we feel one provision to be unconstitutional. Feeling that this case demands the exercise of this restraint, I respectfully dissent from that part of the majority opinion striking down any of the act except that relating to pledge of the revenues.
Brown, J., joins in this dissent.The same may be said with reference to the intention to improve our state parks.
[Footnote 5 in quoted material.] This court used the following language in this opinion, all of which is apropos to the case at bar: "Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this court: First, that the 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. [625], 629), and that the Legislature 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. St. Louis I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400: Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board [of Directors of Fourche Drainage Dist.] 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: ‘It is not to be doubted that the Legislature has the power to make the written laws of the State unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.’ Second, that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional, unless there is a clear incompatibility between the act and the Constitution, and, further, that all doubt on the question must be resolved in favor of the act. State v. Ashley, 1 Ark. 513, 552; Eason v. State, 11 Ark. 481; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762; and in Standard Oil Co. of La. v. Brodie, 153 Ark. 114, 239 S. W. 753, this court quoted the language of the Supreme Court of the U. S. in Hooper v. California, 155 U. S. [648], 657, 15 S. Ct. 207, 39 L. Ed. 297, that ‘the elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality.’ ”
[Footnote 6 in quoted material.] This constitutional provision was involved in the case of Straub v. Gordon, 27 Ark. 625, decided in 1872.
[Footnote 7 in quoted material.] Chap. 18, sec. 22, of the Revised Statutes of 1836 is now sec. 5526, Pope’s Digest and Sec. 12-609, Ark. Stats, of 1947. See State v. Newton, 33 Ark. 276.
An example of a special levy is found in Ark. Stat. Ann. § 18-1348 (Repl. 1960) for the Workman’s Compensation Fund. It is paid into the state treasury pursuant to requirements of the statute itself, but the use of the fund is limited to the Workman’s Compensation Commission.