Oliver v. Southern Trust Company

• Decision Date: 21 April 1919
• Docket Number: 197
• Citation: 212 S.W. 77,138 Ark. 381
• Parties: OLIVER v. SOUTHERN TRUST COMPANY
• Court: Arkansas Supreme Court

212 S.W. 77

138 Ark. 381

OLIVER v. SOUTHERN TRUST COMPANY

No. 197

Supreme Court of Arkansas

April 21, 1919

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed and dismissed.

Judgment reversed and petition dismissed.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellant.

The act did not receive the necessary affirmative vote required by article 5, section 27, Constitution, and is a nullity. 1 Sutherland on Stat. Const. 579; 6 R. C. L. 121; 117 Ark. 352. The claims sought to be paid are not provided for by any pre-existing law and the whole act is void. 10 Wash. 388. The whole act must be constitutional or it is void.

Moore, Smith, Moore & Trieber, for appellees.

There was pre-existing legislation and the unconstitutionality of section 6 does not render the whole act void. The act was properly passed and received the necessary vote. The act was divisible and the constitutional parts should be sustained. 32 Ark. 131; 37 Id. 356; 48 Id. 370; 89 Id. 466; 111 Id. 108; 119 Id. 324; 93 Id. 612-620. Section 6 can be entirely eliminated and the balance of the act will stand. The act is complete without section 6. As to the title see 124 Ark. 475. Eliminate section 6 and the balance of the act is constitutional and valid. The act was constitutionally passed. Art. 5, § 27, Const.

OPINION

SMITH, J.

Appellees filed their petition for mandamus, which contained the following recitals: The Governor of the State on or about the day of 1914, appointed a commission to select a site at the Panama-Pacific International Exposition upon which to erect a building within which the exhibits of this State might be housed, and to take such steps as might be necessary for the collection and maintenance of such exhibits as would be shown at the exposition. Because of the early approach of the opening day of the exposition, to-wit, February 20, 1915, it was deemed inadvisable by the commission to await until the next ensuing session of the General Assembly to pass legislation formally authorizing the commission to proceed with the work and to make an appropriation towards the expense thereof. Accordingly on June 26, 1914, the commission selected a site and proceeded with erection of a building thereon, and with the collection of the respective exhibits and with the transportation of them to the exposition. In order to pay for the foregoing work approximately twenty-five thousand dollars in money was donated to said commission by citizens of the State, and other citizens of the State donated several thousand dollars worth of building materials of various kinds. In addition to the foregoing fund the commission during the progress of said work received and had available the further sum of approximately eighteen thousand dollars which was loaned and advanced it by other citizens.

At the ensuing session of the General Assembly, Act No. 82 was passed, which was approved February 25, 1915, entitled, "An act to appropriate money for an exhibit of the resources of the State of Arkansas at the Panama-Pacific International Exposition of 1915, and for other purposes."

That in the passage of said act the General Assembly had in view the fact that the commission had received and was in the act of collecting and maintaining said exhibit with the aforesaid donations and advances of money and material; but in order to make a more creditable display appropriated the additional sum of forty thousand dollars, or so much thereof as might be necessary, in order that the exhibit might be made more successful. Upon the passage of the act two-thirds of the members present and voting in the Senate voted that the act become a law, and a majority less than two-thirds of those present and voting in the House of Representatives voted to the same effect. A quorum was present and voting in each house.

Thereafter on March 15, 1915, in a suit brought by J. C. Belote, a citizen and taxpayer of the State, against the Auditor and Treasurer of State to restrain the Auditor from issuing and the Treasurer from paying warrants drawn against the appropriation contained in the act, we held that the bill had failed to receive the necessary affirmative vote required by article 5, section 30, of the Constitution, and therefore never became a law. Belote v. Coffman, 117 Ark. 352, 175 S.W. 37.

By reason of this decision no money was ever paid out of the State Treasury upon said appropriation, but the commissioners proceeded with the completion of the building and the assembling of the exhibit, which it maintained with entire success at the exposition throughout its duration. Thereafter, in order to reimburse those persons who had prior to the passage of Act No. 82 of 1915 loaned and advanced to said commission money which was used in the collection and maintenance of said exhibit the General Assembly passed an act, which was approved by the Governor on February 27, 1919, entitled "An act to provide for the payment of the indebtedness incurred by the Arkansas Commission to the Panama-Pacific International Exposition," appropriating for the repayment of the said persons and citizens who had made loans and for the payment of certain obligations incurred by the commission, the sum of $ 23,384.33. This act directed the Auditor to draw his warrant on the Treasurer in favor of the Southern Trust Company as trustee for persons having claims against said commission, the number and amount of each being set out in the preamble of the act. In the passage of said act of 1919, twenty-eight members of the Senate voted that it become a law, there being no votes to the contrary; and in the House of Representatives sixty members voted that it become a law, and twenty-eight voted to the contrary.

The petition concluded with the allegation that notwithstanding the passage of said act the Auditor has refused to issue his warrant on the Treasurer as required by said act, whereupon it was prayed that a writ of mandamus issue compelling him to do so.

To the above petition the Auditor filed a demurrer on the ground that it did not state facts sufficient to entitle the petitioners to the relief prayed. The demurrer was overruled, and upon the Auditor declining to plead further, the court entered an order requiring him to draw and deliver his warrant as prayed in the petition, and this appeal has been prosecuted from that order.

The present appeal does not involve the section of the Constitution construed in the case of Belote v. Coffman, supra; but the Auditor's refusal to draw his warrant is based upon section 26, article 5, of the Constitution, which reads as follows: "No extra compensation shall be made to any officer, agent, employee or contractor after the service shall have been rendered or the contract made; nor shall any money be appropriated or paid on any claim, the subject matter of which shall not have been provided for by pre-existing laws; unless such compensation or claim be allowed by bill passed by two-thirds of the members elected to each branch of the General Assembly."

It will be borne in mind that the Senate consists of thirty-five members and the House of one hundred, so that this act of 1919 did not receive the vote of two-thirds of the members elected to the House.

On behalf of appellees it is insisted that, while the appropriation contained in the act of 1915 failed because it did not receive the affirmative vote of two-thirds of those present and voting in the House of Representatives, yet a valid act was passed which legalized the work of the commission up to the time of its passage and conferred authority for the continued performance of its duty and authorized the...