Hazelrigg v. Board of Penitentiary Com'Rs., 95.

• Decision Date: 13 July 1931
• Docket Number: No. 95.,95.
• Citation: 40 S.W.2d 998
• Parties: HAZELRIGG v. BOARD OF PENITENTIARY COM'RS.
• Court: Arkansas Supreme Court

Page 998

40 S.W.2d 998

HAZELRIGG v. BOARD OF PENITENTIARY COM'RS.

No. 95.

Supreme Court of Arkansas.

July 13, 1931.

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

Suit by C. E. Hazelrigg against the Board of Penitentiary Commissioners of the State of Arkansas. Judgment for the defendant, and the plaintiff appeals.

Affirmed.

Hal L. Norwood, Atty. Gen., Robt. F. Smith and Walter L. Pope, Asst. Attys. Gen., for appellee.

SMITH, J.

This appeal questions the right of the state, acting through the state penitentiary board, to issue bonds pursuant to Act No. 208, approved March 26, 1931.

Section 1 of the act reads as follows: "Section 1. The Board having charge of the State Penitentiary is hereby empowered and authorized to execute in the name of the State of Arkansas, coupon bonds of the State of Arkansas in the sum or sums of not to exceed six per cent (6%) per annum, payable annually, said bonds to run for a period of not more than five (5) years, and to be so arranged that the annual payments may be substantially equal. The full faith and credit of the State of Arkansas is pledged for the payment of said bonds."

Section 2 of the act provides that the proceeds of the bond sale shall be credited to a fund to be known as the emergency penitentiary fund.

Section 3 appropriates $200,000, or so much thereof as may be necessary, to be payable out of the emergency penitentiary fund, for the purpose of discharging certain outstanding obligations of the penitentiary commission.

It is insisted that the act does not fix any maximum limit upon the amount of bonds to be issued, indeed, does not specify any amount whatever, and is, therefore, so vague and indefinite that no authority to issue bonds in any amount has been conferred. On the other hand, it is insisted that, when the act is read in its entirety, it sufficiently and certainly appears that the obvious purpose of the General Assembly was to authorize a bond issue in a sum not to exceed $200,000, and the act should, therefore, be construed as conferring that power.

The courts of the country have been called upon many times to construe defective legislation, and their power in this behalf is well defined. The annotated cases on the subject collect an almost innumerable number of cases, but it is unnecessary to review these cases, as the law of the subject has been frequently declared and is well settled by the decisions of this court.

It has been well said that it is not the province of the courts to be present at the making of the law. This is the function of another department of government, and the courts have the power only to construe an act as it comes from the hands of the lawmakers, in connection with other legislation in pari materia. Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823; Reynolds v. Holland, 35 Ark. 56.

It is the duty of the courts to construe legislation as passed for the purpose of ascertaining the legislative intent, and to give effect thereto when the legislation is not inhibited by some constitutional restriction. But this intention must be ascertained from the act under review and other legislation in pari materia, and the courts cannot legislate under the guise of construction. If the Legislature has not declared its will, the courts may not do so. But, while this is true, it is true also, as is said in Lewis' Sutherland Statutory Construction, vol. 2 (2d Ed.) § 410, that "Legislative enactments are not any more than any other writings to be defeated on account of...