(concurring in part in the result). I agree that the Refunding Act is now valid, but reach that conclusion by a process of reasoning sharply at variance with the opinion of my colleagues.
In Matthews v. Bailey, Governor, 198 Ark. 830, 131 S. W. 2d 425, there is this headnote: “An Act of the legislature which authorizes a governmental agency or officer to irrevocably pledge specific resources of the state creates a vested interest notwithstanding the fact that the pledge is not effective until the agency or officer has moved to effectuate the legislative intent or purpose, and the provisions of Amendment No. 7 to the constitution prohibiting the declaration of an emergency with respect to such legislation are not rendered inoperative merely because the offer to sell bonds secured by the pledge of such revenues has not been accepted.”
Section 16 provides that the act of 1941 shall constitute a contract between the state and its bondholders “which shall never be impaired.” The commitments authorized to be made definitely pledge revenues of the state.
In the Matthews Case it was said: £ ‘ Measures carrying the emergency clause may be referred, but the law is in force until an adverse vote has been registered by the people in the manner provided by the amendment. But,- as appellees have pointed out, under Amendment No. 7 the people were given the right to vote on an act authorizing the issuance of refunding -bonds, and that right exists because an act creating vested interests is not subject to the emergency clause, and because refunding bonds which pledge revenues in trust, executed under the plan of act No. 4 (of 1939) are sustained by vested interests. If the bonds were not so secured there would be no purchasers, and an attempt to refund would be futile. ’ ’
To avoid effect of this decision the 1941 act is wrapped in a verbal shroud intended to prevent the constitutional right hand from knowing what the legislative left hand has done. The expression is: “ This act shall not create any right of any character, and no right of any character shall arise under or pursuant to it, unless and until bonds authorized by this act shall have been issued and actually sold or exchanged by the board.”
Under today’s decision this “message to the court” transmutes into imperative law that which but for a dogmatism judicially accepted could have no greater signifiance than ordinarily attaches to extravagant language adroitly utilized. A declaration by the general assembly that Arkansas is wholly uninhabited would not have the effect of immediately exterminating the state’s population; nor should the assertion in an act that it shall not create any rights (when in fact under it vested interests may accrue) be adopted by the court, to the end that we may rid ourselves of a constitutional impediment which proponents of refunding under the present plan resorted to for the purpose of avoiding refunding through a former plan.
It is said in' the prevailing opinion, however, that the restraint in § 21 of act 4 against issuing bonds without approval (to be expressed at an election called for that purpose) distinguishes it from act 4 of 1939; that the limitation operates in some mysterious way to render effective on condition a procedure we have heretofore said was void from the beginning. If it be true, as a majority of the court held in the Matthews Case, that an emergency cannot be declared in respect of any legislation in consequence of which (by immediate or remote conduct of any designated agency) a vested interest may be created, then by the same reasoning the election provided for by § 21 was without authority because act 4 did not become a law until on reference it was approved; yet, in effect, it is held that the want of power is no impediment in the instant case. This is so only because the authority denied by the constitution has been supplied by judicial reversal, for which there is no justification and no explanation other than the inference of expediency which necessarily attaches.
But the want of power to hold a valid election under act 4 is not fatal to refunding; neither does it impair the movement except slightly in point of time — and that is immaterial.
Constitutional Amendment No. 7 provides that . . referendum petitions may be referred to the people at special elections to be called by the proper official, and such election shall be called when fifteen per cent, of the legal voters shall petition for such special election. . . .”
There is the further provision that “Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon such measures, and not otherwise, and shall not be required to receive a majority of the electors voting at such election. Such measure shall be operative on and after the thirtieth day after the election at which it is approved, unless otherwise specified in the act.”
It will be observed that the language of Amendment No. 7 is that “referendum petitions” shall be referred to the people at a special election to be called by the proper official when fifteen per cent, of the voters shall, have made demand. There is no right to have initiated measures or constitutional amendments voted upon other than at regular elections. From this distinction it is clear that Amendment No. 7 was intended to provide the people with expeditious facilities for approving or disapproving that class of measures it might be thought would vitally affect them, one of which is an act creating vested interests.
The opinion holds that act 4 became a law when the bill was approved by the Governor, but says that § 2Í is controlling as to issuance of bonds. Therefore, for all practical purposes, even from the majority’s viewpoint, the refunding law acquired a workable legal status immediately after February 15. It is my belief that the law’s life relates to the referendum election called by the Governor and held February 15, and not to the election held the same day pursuant to § 21.
The General Assembly was without power to refer act 4. The public expression, treated as such and not as an election, emphasizes the attitude of the people. It reflects complete confidence in the means by which refunding is to be attained.
The question has been asked: If the emergency clause is invalid, by what authority does act 4 take effect withr out further delay? The answer is that the legislative intent has been expressed against delay, and the 30-day period mentioned in Amendment No. 7 has been “otherwise specified.”
The majority opinion holds that § 4674 of Pope’s Digest is not applicable to special elections. I do not agree. 'But the requirements are directory. There was no request that either of the elections be enjoined. Wheat v. Smith, 50 Ark. 266, 7 S. W. 161, is authority for holding that the result should not be nullified. As was said in the Wheat-Smith Case, “The voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken.”
I agree with the majority opinion in the following respects:
(1) The Refunding Act is now a law.
(2) Amendment No. 20 to the constitution is not involved.
(3) Powers delegated to the refunding hoard are not legislative.
(4) Obligations of the state are not increased.
(5) The Governor was the “proper official” to call an election under the referendum petitions.
(6) There is no impairment of the obligation of contracts between the state and the holders of its bonds.
(7) Bonds exempt from the state income tax may ■be issued.
(8) The plan for selling bonds tends to. promote, rather than to prevent, competitive bidding.
(9) The General Assembly complied with all necessary constitutional requirements in “passing” act No. 4.
(10) State senators and members of the house of representatives are ineligible to serve on the refunding board, for the reasons stated in the court’s opinion. I think, however, it should be made clear that the lieutenant governor belongs to the executive department. Amendment No. 6 to the constitution. It is true the lieutenant governor presides over the senate and may vote in case of a tie. But Amendment No. 6 expressly states that the executive department of the state shall consist of a governor, lieutenant governor, and the other officials named.
(11) Act No. 11 of 1934 was a measure under which valid contracts between the state and its creditors arose. Its validation was not beyond the power of the General Assembly, but adds nothing to it.
(12) The General Assembly had power to appropriate $40,000 to defray the.expense of an election, or elections. Amendment No. 19 to the constitution prohibits enactment of appropriation bills until the appropriation bill provided for in § 30 of art. 5 of the constitution has been passed. The amendment uses the words, “appropriations for any biennial period.” The record upon which the appeal before us is based does not show whether the general appropriation bill had been “enacted” when the $40,000 appropriation was made. ' This court hits not construed Amendment No. 19 in a controversy testing whether an appropriation for a special purpose (having no relation to the biennium) may be made before the general appropriation bill has been enacted......;
(13)" In respect of a diversion of highway revenues and- consequent violation of act No. 11 of 1934, et seq., I dissented in Scougale v. Page, 194 Ark. 280, 106 S. W. 2d 1023. If the diversion of $382,783.46 was of no consequence in 1937, repayment to general revenue of $40,-000 from highway revenue^ in 1941 should not cause concern. De minimis non curat lex. The Scougale Case has not been overruled and of necessity I adhere to it. 'But aside from that case I think the appropriation of $40,000 becomes a part of the expense of refunding. • The question can only be raised by an injured party whose security has been impaired.