dissenting. I dissent for two reasons. The act in question is an unlawful delegation of the power of the legislature, and the act is local and special in violation of amendment 14 to the Arkansas Constitution.
First, let me express my general agreement with the statements in the majority opinion about enjoining elections. We should not, except in clear and exceptional cases, stop elections. But neither should we abdicate our responsibility and refuse to set aside an election that is illegal, that is, an election on a question that cannot be the subject of an election. In this case it was an unconstitutional election.
In Justice George Rose Smith’s opinion in Brown & Jenkins v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968), he touched on this question when he quoted from an Iowa decision:
The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted. If the election, when held, was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. . . . (Italics supplied.)
In McDaniel, we were asked four days before the election to set aside a trial court’s order prohibiting an election. We allowed the election to proceed on the basis that courts are “without authority to enjoin the holding of a regular election, regularly called.” But we did so without prejudice to consider the matter after the election. Standing by that hurried judgment, we explained in an opinion issued later why that principle should be honored. But we are not toothless guardians of the legal process who can never intervene in the election process, and this case presents a prime example of the abuse of the election process. If we cannot sometimes intervene then, the people are powerless to check unconstitutional actions taken by the legislature.
It should be quickly noted that this was not a regular election. Indeed, it was a hurried up affair based on special legislation to allow Sunday racing at the Oaklawn Race Track during the 1989 racing season. While the facts presented and briefs filed may not or could not demonstrate any voter was disenfranchised, none would have been if this election had been ordered or permitted under the existing general election laws of this state. So this was not a regular election, regularly called, entitled to the unusual protection from interference.
We did not prohibit the election because there was no time to consider the numerous and difficult legal issues presented a day or so before the election. We issued no opinion nor any statement of why we declined to prohibit the election. Not all justices participated in the decision. Consequently, we should not now be prohibited from performing our duty simply because the election is over.
The most difficult question presented is the one on the constitutional principle of delegation of power. In this case the legislature delegated its power to decide what the law is to someone else. The legislature did not decide racing and gambling would be permitted on Sunday. Instead, it chose to delegate that decision to two deeply involved entities: the franchise holder and the electorate of the City of Hot Springs. It is understandable why the legislature did not want to decide horse racing and gambling should be permitted on Sunday. But it could not delegate that tough decision. Amendment 46 to the Arkansas Constitution did not give the power to regulate pari-mutuel gambling to anyone except the legislature. Amendment 46 reads:
Horse racing and pari-mutuel wagering thereon shall be lawful in Hot Springs, Garland County, Arkansas, and shall be regulated by the General Assembly.
Amendment 46 legalized what is a crime in Arkansas — gambling. The people, no doubt knowing what they were doing, did not want anyone less than their entire representative body to be held responsible for the regulation of this sensitive activity. If the franchise holder or the people of Hot Springs can decide whether there is to be horse racing and gambling on Sunday, then they can decide anything relating to the activity. Surely the people did not intend for the legislature to be able to avoid its duty and responsibility by granting to a few the power to decide what all the state said it would reserve unto itself.
We do not have the question of whether the legislature could have given the Racing Commission the power to decide this question. Such a commission is a creature of the legislature, subject to its control and presumably empowered only to execute legislation; the franchise holder and electorate of Hot Springs are not directly accountable to the legislature nor in any way empowered to execute law.
The majority relies, quite properly I might add, on some old cases which hold that the legislature is not delegating its power when it gives local people the right to vote on a proposition, thereby finding “facts” and putting into effect a law. These cases, and cases from other jurisdictions, were decided on the principle that it is the law that makes the vote, not the vote that makes the law. See McLeod v. Harvey, 125 Fla. 742, 170 So. 153 (1936); Board of Directors v. Kelly, 171 Or. 691, 137 P.2d 295 (1943); Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 77 (1852).
The courts have not always held that way. Some early courts saw clearly what the legislature was doing. In Barto v. Himrod, 8 N.Y. 483 (1853), the court declared unconstitutional an act which relegated to the people the right to decide if it would “become law.” The court made the following statement:
The legislature had no power to make such submission, nor had the people the power to bind each other by acting upon it. They had voluntarily surrendered that power. . . .The government of this state is democratic; but it is representative democracy.
The court concluded that the practice of having the voters decide whether an act should become law weakened legislative responsibility. See L. Jaffe, An Essay on Delegation of Legislative Power II, 47 Colum. L. Rev. 561, 562 (1947); see also Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).
So, while the majority of courts agree with our decision in Capps v. Judsonia & Steprock Road Improvement Co., 154 Ark. 46, 242 S.W. 72 (1922), I think they are wrong. It is simply a case of the courts accommodating the legislature. Permitting an election to decide if a law will become effective is simply delegating the power to make law. That is a legislative function, a fact which cannot be changed by even judges. In most cases, the practice is harmless because the delegation is to that group of voters interested or concerned with the legislation, such as an improvement district in a city or county. But what of delegation to a group that does not reflect those affected by the legislation? Are only the residents of Hot Springs concerned with horse racing and gambling on Sunday, or is that a concern of all of Arkansas? The people gave the entire general assembly the power to regulate this activity. Surely it cannot be delegated to the special interests selected in this case.
The act is also special and local legislation in violation of amendment 14 to the Arkansas Constitution. The majority opinion says that all legislation regarding horse racing and gambling in Hot Springs has to be special and local because amendment 46 applies only to the City of Hot Springs.
I hardly think the people of Arkansas meant for all provisions of the Constitution to give way to amendment 46. The people authorized the criminal act of gambling to occur in Hot Springs — they did not mean to suspend the application of all laws in relation to everything that government may do in allowing this activity.
It is undisputed that it is local. This act is special because it involves an election. We have laws on elections, for both general and special elections. Having decided there would be an election, then the election should have conformed to the laws governing all elections. Why should it not? Do electors in Hot Springs have more or less rights than others in the state? This is the very sort of thing amendment 14 was intended to prohibit.
I conclude the election must be voided as illegal.
Purtle, J., joins in the dissent.