I agree to the general rule of law that a constitutional provision may be said to be self-executing when it takes immediate effect, and ancillary legislation is not necessary to the enjoyment of the rights given. The reason is that, if a constitutional provision is complete in itself, it executes itself.
Tested by this rule, the proviso of section one of amendment No. 11 is not in my opinion self-executing. The proviso is in effect an independent provision of the section and necessarily requires legislation of some sort to put it into effect. When it comes to issuing bonds under the proviso, legislation is required to provide what length of time they shall run, what rate of interest they shall bear, who is to execute them, whether they shall be sold privately or at public auction, in what denominations they shall be issued for, and whether they shall be sold below par, etc.
It is claimed that these matters are provided for by existing acts of the Legislature and ordinances of the city. The fact that it is necessary to supplement the proviso by acts of the Legislature or ordinances of the city council in order to carry it into effect shows that the proviso in question is not self-executing. Lanigan v. Gallup, 17 N.M. 627, 131 P. 997.
It is well settled in this State that counties, cities and towns or municipal corporations are created by the Legislature and derive all their powers from it unless otherwise provided by the State Constitution. Eagle v. Beard, 33 Ark. 497, Harrison v. Campbell, 160 Ark. 88.
Having reached the conclusion that the proviso is not self-executing, it becomes necessary for me to pass upon the validity of the act of the Legislature of 1925 attempting to put proviso in question in operation. Section six provides that the act is immediately necessary for the *Page 783 preservation of the public peace, health and safety and that the same shall take effect and be in force upon its passage.
The reason given that it is declared an emergency is that by reason of the heavy indebtedness hanging over many cities of the first class, they will be unable to procure proper facilities for the extinction of fires, proper police protection, and proper safeguards for the public health. This declaration on the part of the Legislature is a mere conclusion on its part. By an amendment to the Constitution of the State adopted on the 11th day of November, 1920, the limitation upon the legislative power in declaring an emergency to exist is made. The section specifically provides that it shall be necessary to state the facts which constitute the emergency allowing the Legislature to put an act into immediate effect. The mere fact that cities and towns are largely in debt contains no statement of the facts of an emergency.
I do not think that the legislative declaration of an emergency is final under the provision of the Constitution referred to and am of the opinion that its action is subject to judicial review. The authorities on both sides of the question are cited in a case note to Payne v. Graham,118 Me. 251, 7 A.L.R. 516.
The public importance of the question prompts me to voice my dissent in writing.