dissenting. I disagree with the decision rendered today by the majority for, in considering the arguments of appellees, it appears to me that principal objections to Act 16 are based upon practicalities, rather than actual illegality. As I view it, it is not within the province of this court to determine, or pass upon, the wisdom of legislation; policy decisions are generally left to the General Assembly. In other words, whether it is practical to call a convention whose task will not include revision of the entire Constitution, whether it is practical to provide a special election, or whether there is sufficient time for the people to acquaint themselves with the provisions of the proposed instrument, etc. are not matters properly within the scope of this court. The only question with which we should be concerned is whether Act 16 is in conflict with the Arkansas Constitution of 1874, as amended.1
It appears that the majority reach their conclusions principally upon two premises, viz-, that the legislature has no authority under the Constitution to call a constitutional convention without such call being ratified by the people, and the limits set upon the authority of the proposed convention are a violation of our Constitution. In addition, the citing of Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281, clearly implies that the court is holding that delegates must be elected, and that the appointment of delegates by the Governor and General Assembly conflicts with constitutional requirements. Amendment 7 is also fleetingly mentioned, but let it simply be said that this is the initiative and referendum amendment which sets out how the people themselves may initiate constitutional amendments or laws, and the manner in which legislative acts can be referred to a vote by the people. I cannot see how Amendment 7 has the slightest relevance to the question of whether the General Assembly has power to call a constitutional convention.
As to the election of delegates, we again are talking about practicalities. Personally, I would prefer that method, but not one provision of the Arkansas Constitution has been pointed out that makes such a requirement, and I certainly do not take Harvey v. Ridgeway, supra to so hold. There was no occasion for such a holding, for Senator Harvey had been elected by the people to serve (in the Constitutional Convention of 1970), and the sole question in that litigation was whether, being a state senator, he could also serve as a delegate. The question of whether a delegate could be appointed was not involved “top, side, or bottom.”2
Aside from the argument relating to practical aspects, the import of much of appellees’ argument seems to be directed to the supposition that the proposed constitutional convention will actually have the authority to change our Constitution. Even the trial court, in its findings, stated, “But I do not believe that the people intended to give anyone the authority to change their Constitution.” I agree with this statement wholeheartedly, but the proposed constitutional convention could not, of course, in any sense, change that document. A constitutional convention can only recommend — suggest — advise — propose — proffer — but it cannot go one whit further! To use a simple illustration, the government or business executive receives suggestions or recommendations each day from subordinates as to changes that might provide greater efficiency — but these are only recommendations — the business executive is free to accept or reject such recommendations. Here, too, the decision to accept or reject the recommendations of the constitutional convention is the choice of the people and absolutely no change in the Constitution has been made until a majority of the electors approve the proposed document.
I feel that the majority have entirely misconstrued Article 2, § 29, quoted in the majority opinion (with their emphasis), as follows:
“Art. 2, § 29. ‘Enumeration of rights of people not exclusive of other rights — Protection against encroachment — This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate, and that all laws contrary thereto, or to the other provisions herein contained, shall be void. ’ ”
Article 2 is the “Declaration of Rights”, and sets out the general rights of the people which cannot be abridged by governmental decree or legislation. For instance, Section 1 deals with the source of power, declaring that “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.” Section 2 provides that all men are created equally free and independent and have the right to acquire, possess, and protect property and reputation, and to pursue happiness.’“Section 3 sets out that all are equal before the law. Section 4 grants the right of assembly and petition. Section 5 gives the right to bear arms. Section 6 deals with liberty of the press and of speech. Section 7 grants the right to a jury trial. Other well-known provisions relate to the redress of wrongs (§ 13), unreasonable searches and seizures (§ 15), property rights (§ 22), and religious liberty (§§ 24, 25 and 26). No point would be served in setting out what each section deals with, but it is sufficient to say that all deal with the basic and fundamental rights that every citizen enjoys under a democratic form of government, and Section 29, including the portion italicized by the majority, simply provides, in effect, that neither the legislative, executive, nor judicial branch of the government, has the authority to pass, promulgate, or render, any measure, order, or decree that would take away any of those rights. Neither the matter of constitutional conventions, nor the manner in which they shall be called, is even remotely touched upon.
As for Article 2, § 1, of course all political power is inherent in the people, and the people would Dave the opportunity (except for this majority decision) to exercise that power at the election called for in Act 16.
I am puzzled by the inclusion by the majority of § 11 of Act 16 in their opinion, and cannot comprehend how it has any bearing whatsoever on the right of the General Assembly to call the convention. This is the last section in the act (except the emergency clause), does not deal in any manner with setting up the convention, is nothing more than a self-imposed limitation on the Seventieth General Assembly (not the people), and is without meaning.
A review of the proceedings of the Seventieth General Assembly held this year reveals that no constitutional amendment was proposed, so, of course, there is nothing to submit to the people. If none are passed after the Assembly reconvenes next year, there still, of course, will be nothing to submit. There is no constitutional requirement for the legislature to submit any proposed constitutional amendment, and the General Assembly is thus free to do as it pleases in this respect. The last nine words of § 11, viz., “and shall not be voted upon by the people” are nothing but surplusage and completely meaningless, for if any proposals are “null and void” as stated in the section, there is nothing for the people to vote upon. For that matter, before any proposal could be submitted to a vote, the provisions of Article 19, § 22, would have to be complied with.
Be that as it may, if the section is void, it is certainly severable.3 As stated, it does not deal in any manner with establishing the convention, nor any of the procedures that shall be followed, and no other section or provision of the act is dependent upon it. I have no doubt but that Act 16 would have been passed without its inclusion. As stated by the late Justice Frank G. Smith, writing for the court in Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183:
“If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.”
As to the “limited constitutional convention”, I know of no decision, and none has been cited from any jurisdiction, which holds that a legislatively called convention is invalid because of only providing a “limited convention”.4
There is really no necessity in discussing the “limitation”, for at the conclusion of the discussion, I would simply wind up with the same view expressed by Dr. Robert A. Leflar, Distinguished Professor of Law5 (and I do not know of a more respected or eminent legal authority in Arkansas), in his Amicus Curiae brief filed in this Court. Dr. Leflar, pointing out that there is absolutely no prohibition in the Arkansas Constitution against the legislature calling a constitutional convention without a vote of the people, nor any constitutional violation in circumscribing the areas of revision) states:
“For any court to read such a limitation into the Constitution would be for the court to re-write the Constitution.”
It cannot be more forcefully expressed!
I would uphold Act Í6 and thus give the people of our State, in whom all power is inherent, the right and opportunity to alter their Constitution.
I am authorized to state that Justices George Rose Smith and Holt join in this dissent.Of course, a legislature can exercise all power that is not expressly or impliedly prohibited by the Constitution. State v. Ashley, 1 Ark. 513.
Though without actual probative value in this litigation, it is interesting to observe that probably the finest constitutional document of all time, the Constitution of the United States, was prepared by convention delegates who were not elected by the people, but were mainly appointed by state authorities. In fact, the convention itself was called by the Continental Congress without a prior vote by either the people or by the several states.
As we have held numerous times, a severance clause is not necessary-in holding the provisions of an act to be severable. See Berry v. Gordon, 237 Ark. 865 (Supplemental Opinion on Rehearing), 376 S.W.2d 279.
The convention is empowered to propose revision of 14 of the 19 articles contained in the present Constitution, and 39 of the 49 amendments to our Constitution which are still effective.
Also former Dean of the School of Law, University of Arkansas, and Associate Justice of this Court.