Bush v. Martineau

• Decision Date: 23 May 1927
• Docket Number: 24
• Citation: 295 S.W. 9,174 Ark. 214
• Parties: BUSH v. MARTINEAU
• Court: Arkansas Supreme Court

295 S.W. 9

174 Ark. 214

BUSH v. MARTINEAU

No. 24

Supreme Court of Arkansas

May 23, 1927

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

R. E Wiley, for appellant.

Coleman & Riddick, for appellee.

MCHANEY J. WOOD and KIRBY, JJ., dissent.

OPINION

MCHANEY, J.

Appellant instituted this action in the Pulaski Chancery Court, challenging the constitutionality of acts Nos. 11 and 80 of the Acts of 1927, approved February 4 and March 3, 1927, respectively, commonly referred to as the State Highway Acts. A demurrer to the complaint was sustained, and, as appellant declined to plead further, his complaint was dismissed for want of equity, from which comes this appeal.

The title of act No. 11 is "An act to amend act No. 5 of the extraordinary session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923," and § 1 of the act declares a definite policy on the part of the State with reference to its State highway system in this language: "It is hereby declared to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined herein." The original act, of which this is amendatory, the Harrelson Act, has been before this court for consideration and has been sustained in the following cases: Bonds v. Wilson, 171 Ark. 328, 284 S.W. 24; Cone v. Hope-Fulton-Emmett Road Imp. Dist., 169 Ark. 1032, 277 S.W. 544.

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), 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. L. 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, etc., 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; 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, 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 the statute from unconstitutionality." There are a great many decisions of this court announcing and following these rules under a great variety of circumstances, and we do not therefore cite or quote from more of them.

Bearing in mind these elementary rules of construction, let us now take up the specific objections to these acts pointed out by appellant as rendering the acts unconstitutional.

1. It is urged that, since act No. 11 provides for the issuance by the State of interest- bearing evidences of indebtedness, it is in violation of § 1 of art. 16 of the Constitution, which reads as follows:

"Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip."

We will not quote the acts questioned in full, but only such parts as appear to be pertinent. Section 4 of act 11 is as follows:

"It shall be the duty of the Commission to construct the roads in the State highway system which are not now constructed, the work of construction to be pushed as rapidly as funds are available for that purpose. The Commission shall begin the work of construction in those counties in which the roads embraced in the State highway system have not been constructed by improvement districts, or in which only a small portion of such roads have been constructed, and shall continue construction work in such counties until the completed roads in each county in the State have been brought to a parity, after which construction work shall be distributed throughout the counties so as to maintain the parity, as far as practicable."

Section 5, after making it the duty of the State Highway Commission to make certain allotments for the construction of new roads for the next four years, provides:

"To provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary, in addition to the money derived from automobile licenses and fees, gasoline and motor-oil taxes, and from Federal aid, on such terms as to interest and maturities, and subject to the limitations hereinafter set out, as may be determined to be for the best interest of the State highway system, and to issue State highway notes for the amount borrowed, to be secured by a pledge of the revenues derived from gasoline, motor-oil and automobile taxes, and to pledge said revenues, or so much thereof as may be necessary, for the payment of said notes," etc.

"Such notes issued by the State shall be known as State highway notes, shall be signed by the Governor, the State Treasurer and the State Highway Commissioner, and attested by the Secretary of State, and shall state in the face of said note that the revenues derived from gasoline, motor-oil and automobile taxes are pledged for the payment of such notes."

The above section of the Constitution appears quite simple. The first thing prohibited therein is the lending of its credit by the State, city, etc., for any purpose. It is not proposed in the act under consideration that the State shall "loan its credit," but only use its credit. The second prohibition in said section leaves the State out of the thing prohibited altogether, and lays the restraining hand only on "any county, city, town or municipality" in the issuance of interest-bearing evidences of indebtedness, except to cover the then existing indebtedness. The State was not left out of this second prohibition or limitation by inadvertence, oversight or mistake, but by intention or design. Hays v. McDaniel, State Treasurer, 130 Ark. 52, 196 S.W. 934.

The third prohibition in this section of the Constitution applies to the State alone, that is, that it "shall never issue any interest-bearing treasury warrants or scrip." This third prohibition manifestly can have no application to this case, for it is not proposed to issue any interest-bearing treasury warrants or scrip.

This court has held directly contrary to this contention of appellant. In Jobe v. Urquhart, 102 Ark. 470, 143 S.W. 121., Ann. Cas. 1914A, 351, it was said:

"The General Assembly has plenary powers to contract for and create interest-bearing indebtedness on the part of the State, except to issue interest-bearing treasury warrants or scrip."

This case was cited with approval in Hays v. McDaniel, State Treasurer, supra, where it was again held that the Legislature could authorize the issuance of interest-bearing evidences of indebtedness for its purposes, and we do not think the court intended to limit the power of the Legislature in this regard to the particular "purpose" then under consideration. If the Legislature has "plenary power to contract for and create interest-bearing indebtedness," when "the authority to bind the State to the payment of interest on her indebtedness" is plainly expressed in the act, as held in Jobe v. Urquhart, supra, then it would appear to be certain that it could validly exercise such power for the building of roads, when the act expressly declares it to be the policy or "purpose" of the State so to do. Appellant concedes on this point that these decisions are contrary to his contention, and that we should reconsider the rule in Hays v. McDaniel, with which we do not agree, and further says that the act in question is violative of the spirit of this section of the Constitution. But we cannot strike down a solemn enactment of the Legislature on any supposed spirit of the Constitution. As before stated, we can only do so when the power is expressly, or by necessary implication, prohibited.

In 1 Cooley's Constitutional Limitations (8th ed.) page 351, the author says:

"Nor are the courts at liberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words, when the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature. We cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the...