Jones v. State

• Decision Date: 19 June 1922
• Docket Number: 77,73
• Parties: JONES v. STATE
• Court: Arkansas Supreme Court

242 S.W. 377

154 Ark. 288

JONES v. STATE

No. 77, 73

Supreme Court of Arkansas

June 19, 1922

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed, and cause dismissed.

Lake & Lake, J. W. House, Jr., and J. G. Sain, for appellants.

Nothing can be taken by intendment to supply the necessary allegations in an indictment. 94 Ark. 242; 29 Ark. 68; 38 Ark. 519; 67 Ark. 308. Criminal statutes are to be strictly construed, and no case can be brought within the statute unless it is within its words. 38 Ark. 521. The requirements of the statute that the report shall be filed on the first Monday in January is mandatory. The indictment to be sufficient must allege that they failed to file it on that day. 236 S.W. 619. The enactment of this statute was not within the proclamation convening the Legislature. 15 L. R A. 847. The Governor's subsequent approval of the act cannot be substituted for those earlier steps which the fundamental law prescribes. 2 Heisk. 575; 90 Mo. 646; S.W 769; 19 S.W. 531. Legislation not embraced in the Governor's call is unauthorized and void. 19 S.W. 531. The case should be reversed and dismissed. 115 P. 696. The Legislature is limited to the business named in the proclamation. 161 S.W. 1006.

J S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

The exact date laid in the indictment is not material further than as a statement that it was committed before the time of the indictment. 110 Ark. 171; 52 Ark. 270; 26 Ark. 260; 31 Ark. 676; 32 Ark. 215. The indictment is substantially in the words of the statute and is sufficient. 85 Ark. 195; 97 Ark. 5; 98 Ark. 575.

SMITH J. HART, J., dissenting.

OPINION

SMITH, J.

Appellants are commissioners of a road improvement district in Howard County created by act No. 628 of the Acts of the regular session of the 1919 General Assembly (1919 Road Acts, vol. 2, page 2399), and they have been convicted under an indictment charging them with failure "to file a detailed, full and correct report and statement of the moneys collected and expended, the character of the improvement made and other details necessary to a full and thorough understanding of things done by said commissioners, said Howard-Sevier Road Improvement District Number 1 having previously issued and sold bonds and expenditures being made."

It was stipulated, in the agreed statement of facts on which the case was submitted to the court sitting as a jury, that the commissioners did not file a report on the first Monday in January, 1922, but that their report was not filed until the 21st day of February, 1922.

The prosecution in this case was had under act No. 151 of the acts of a special session 1919 of the General Assembly, which was an act entitled, "An Act requiring the commissioners of all road districts, drainage districts, and improvement districts of all kinds, to file an annual report on the first Monday in January of each year hereafter."

Section 1 of this act provides "that hereafter all commissioners of road districts, drainage districts and improvement districts of every kind where bonds are sold, shall be required to file a report on the first Monday in January of each year, during the time expenditures are being made, and said report shall contain a detailed, full and correct statement of everything done by said commissioners up to the date of the filing of their report, including the amount of money collected, the amount of money expended, showing the date and number and amount of each voucher, to whom issued, and for what purpose, the character of the improvement made, the amount of the improvement, and every other detail necessary to a full and thorough understanding from the report of everything done or accomplished by said commissioners and district. Said report shall be filed with the clerk of the county court of the county in which said improvement district is organized, or, if the district or any part of it is in more than one county, then in each county of said district; and said report when so filed shall be kept by said clerk, subject to the inspection of any taxpayer in said district."

Section 2 of the act provides that a fine of $ 500 shall be imposed upon a conviction of a violation of section 1.

This act appears as sections 5645 and 5646, C. & M. Digest.

It is insisted, on behalf of the State, that section 5645, C. & M. Digest, applies to all road improvement districts, and therefore supersedes section 5452, C. & M. Digest. This last-numbered section was section 33 of act No. 338, approved March 30, 1915 (Acts 1915, p. 1400) commonly known as the Alexander Road Law.

This section 5452 requires the filing of an annual report during the month of September by all boards of commissioners of road improvement districts, but it quite obviously applies only to the road improvement districts created under that act.

It becomes necessary, therefore, to determine whether act No. 151, set out above, is a valid enactment. as the conviction appealed from was had under its provisions.

Act No. 628 of the Acts of 1919 creating the road improvement district in question does not require the filing of an annual report by the commissioners; and the conviction cannot therefore be sustained unless act No. 151 is a valid statute.

We have reached the conclusion that this wholesome act is not a valid law; but its validity must be tested, not by any consideration of its beneficial safeguards, but solely upon a consideration of the provisions of the Constitution pursuant to which it was enacted.

This act No. 151 was passed at an extra session of the General Assembly which was convened pursuant to a proclamation of the Governor, which reads as follows:

"Know ye that, whereas, an extraordinary occasion has arisen which makes it necessary so to do, I, Charles H. Brough, Governor of the State of Arkansas, by virtue of the power and authority vested in me by section 19, article 6, of the Constitution of the State of Arkansas, do by these presents call a special session of the General Assembly of the State of Arkansas, to meet and convene at the State House, at the hour of twelve o'clock noon, on the 22nd day of September, 1919, and I specify the purposes for which the General Assembly is convened to be as follows, to-wit:

"1. To enact such laws as may be necessary to decrease the high cost of living.

"2. To enact such laws as will enable cities and towns to collect an additional tax for motor vehicles. to be used for street purposes.

"3. For the purpose of enacting laws for establishing local road, bridge, drainage, school and levee improvement districts, and amending and curing defects in existing special local laws for the same, and ratifying, confirming and validating local improvement districts organized under general or special laws, and to enact such laws as will permit the reconstruction or extension through improvement districts of waterworks systems, to the end that cities and towns or new territory taken therein may be supplied with adequate service.

"4. To appropriate a sufficient sum to pay for services rendered and expenses incurred during the biennial period ending March 31, 1919.

"In testimony whereof, I have hereunto set my hand and caused, as Governor of the State, the Great Seal of the State of Arkansas to be affixed, this 15th day of September, 1919."

It is shown, from the certificate of the Secretary of State, based upon an examination of the legislative records--of which we would, of course, take judicial knowledge--that House Bill No. 134, which became act No. 151, was introduced at this special session while other business within the Governor's proclamation was being transacted, and that other bills within the Governor's proclamation were introduced both prior and subsequent to the introduction of House Bill No. 134, and that the purpose of the call of the Governor had not been completed when House Bill No. 134 was introduced, and that there was no vote of the two houses entered on the journals thereof extending the session for the purpose of considering matters not included in the Governor's call.

Section 19, article 6, of the Constitution, under which the extra session was convened, is as follows: "The Governor may by proclamation, on extraordinary occasion convene the General Assembly at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous from any enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the...