Rockefeller v. Hogue, 5--4594

• Decision Date: 27 May 1968
• Docket Number: No. 5--4594,5--4594
• Citation: 429 S.W.2d 85,244 Ark. 1029
• Parties: Winthrop ROCKEFELLER, Governor et al., Appellants, v. Ernest HOGUE et al., Appellees.
• Court: Arkansas Supreme Court

Page 85

429 S.W.2d 85

244 Ark. 1029

Winthrop ROCKEFELLER, Governor et al., Appellants, v. Ernest HOGUE et al., Appellees.

No. 5--4594.

Supreme Court of Arkansas.

May 27, 1968.

Rehearing Denied July 15, 1968.

Wright, Lindsey & Jennings, Little Rock, for appellants.

Nathan Gordon, Morrilton, Gene Worsham, Sam Robinson, and W. J. Smith, Little Rock, and William S. Arnold, Crossett, for appellees.

FOGLEMAN, Justice.

This appeal comes from a decree of the trial court enjoining the Governor and other appellants from proceeding with efforts to remove any of the members of the Arkansas Game & Fish Commission. The decree of the lower court was rendered on the pleadings and a stipulation of the parties. The chancery court based its decision in this suit brought by certain members of the Commission upon the finding that § 5 of Amendment No. 35 of the Arkansas Constitution was not self-executing. It is conceded by the parties that the only question on this appeal is whether this action is self-executing. Section 5 is one of eight sections of the amendment initiated by the people and adopted in 1944, dealing comprehensively with conservation and regulation of wildlife of the state. The amendment creates a Game & Fish Commission of 7 members, each of whom is appointed by the Governor for a seven-year term. ¹ The first members were appointed for terms varying from 1 to 7 years, so that the terms would be staggered with the term of one member expiring each year. There are provisions for removal of commissioners, the filling of vacancies, and the election of a Chairman and an Executive Secretary. The powers and duties of the commission are also set out. This court has called the amendment complete in itself, superseding all prior legislative acts, both directive and restrictive, and covering the whole subject. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Commission, 215 Ark. 229, 219 S.W.2d 948. The section in controversy reads:

'A Commissioner may be removed by the Governor only for the same causes as applied to other Constitutional Officers, after a hearing which may be reviewed by the Chancery Court for the First District with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor or the trial court.'

Appellants say that the section is self-executing and may be utilized without the necessity of legislation to make it effective. On the other hand, appellees contend that the provision is not self-executing because it constitutes a statement of principles only, making legislation laying down rules providing means of carrying the principles into effect necessary to put it in force. Appellees state that they are not, at this time, particularly concerned with the question whether the hearing procedure which has been adopted by the Governor satisfies the constitutional direction of a hearing by the Governor except insofar as that procedure illustrates the lack of guidelines for procedures and the absence of limitations on the Governor's power to establish the rules for such a hearing. Generally speaking those matters asserted to indicate that the section is not self-executing are:

I. The failure to prescribe procedures does not assure to an accused commissioner due process of law guaranteed by Article 2 of the Constitution of Arkansas and Amendment 14 to the United States Constitution in that:

A. The governor might act summarily to remove all commissioners ex parte.

B. He could remove the entire commission in order to gain control over the commission.

C. There is a lack of requirement for:

1. notice of charges;

2. reasonable notice of hearing;

3. right to make defense;

4. right to appear in person or by counsel;

5. preservation of record;

6. compulsory attendance of witnesses and production of documents;

7. public hearing.

D. No rules of evidence are provided.

E. The place and forum of hearing are not fixed.

F. The nature and type of, and time limitation on, review by chancery court and appeal to this court are not prescribed.

G. The burden of proof is not placed.

H. No mention is made of the weight to be given a decision of the chancery court.

II. The section might result in vacation of a removed commissioner's position immediately upon the finding of cause for removal by the Governor in spite of the right of review by the Chancery Court of the First District and appeal therefrom to this court.

There is a presumption of law that any and every constitutional provision is self-executing. Myhand v. Erwin, 231 Ark. 444, 330 S.W.2d 68. The impact of this presumption should be especially great where the provision in question was initiated by the people.

One of the principal tests as to whether a constitutional provision is self-executing is the determination, from its language, its nature, and its objects, whether it is addressed to the legislative branch or to the judicial branch. Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199; Myhand v. Erwin, supra. We see nothing that suggests that Amendment 35 is addressed to the legislative branch. Considerable reliance is placed by appellees on Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380. This case is readily distinguishable. The constitutional provision there involved reads:

' § 23. Maximum of officers' salaries or fees.--No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.'

In holding this section not to be self-executing, we said:

'There is a strong implication from the concluding phrase of the provision in question--'as shall hereafter be directed by appropriate legislation'--that the framers of the Constitution did not mean it to be self-executing, but intended that the whole provision should be put into force by appropriate legislation. This is greatly strengthened by a consideration of the general and indeterminate character of the language employed. In the first place, the provision for payment of the excess over $5,000 'into the state, county, city or town treasury' is, at least so far as the office of prosecuting attorney is concerned, too indefinite to be properly enforced without legislation. The language, standing alone, would mean that all state officers shall pay the excess into the state treasury, and county officers into the county treasury; yet, when we remember the source whence the fees of a prosecuting attorney come, the language is too general to warrant a conclusion that so unjust a disposition of the excess in his case as payment into the state treasury was intended. As is well said by learned counsel for appellant, probably 90 per cent. of fees in felony convictions and 50 per cent. of fees for convictions for misdemeanors are paid to the prosecuting attorney by the counties of their respective districts. The state pays only a small part of that officer's compensation--the maximum salary to be paid by the state is fixed at $400 in the Constitution. * * * if we give the provision in question a literal interpretation, and hold it to be self-executing, it would require the excessive fees gathered by some of the prosecuting attorneys from the counties composing their circuits to be paid into the state treasury to become a part of the common funds of the state. We do not say that the Legislature cannot prescribe such a disposition of the surplus funds, however unjust it may appear to be, in carrying out the constitutional provision; but we do say that the apparent injustice of such a disposition of the funds affords much reason for not ascribing such a meaning to the general form of expression employed. In the next place, the words, 'net profits per annum in par funds,' when applied to emoluments of office, are so indefinite that it would be extremely difficult if not impossible to judicially determine, without legislation on the subject, what are 'net profits * * * in par funds.' What basis should the court adopt in ascertaining what are net profits of the office? What expenses are to be deducted? And what tribunal is to pass upon the accounts of the prosecuting attorney, ascertain what his legitimate expenses have been, and fix the amount which he should pay into the treasury? This is a matter easy of solution for a legislative body, but not for tribunals exercising purely judicial functions, unless the Legislature first provides a basis for determining what the profits of the office are. Of course, if we should reach the conclusion that the provision in question is self-executing, then it would devolve upon the courts, in the absence of legislation on the subject, to work out in as nearly an approximately just method as possible what the expenses and net profits of this office are, but the almost insurmountable difficulties in the way of doing it without legislation afford the strongest reason for concluding that the provision was not intended to be self-executing.'

The section under examination in the Griffin case was addressed in express words to the General Assembly, not the courts. The problems for the judicial branch here, such as confining procedural steps within the boundaries of due process, are not as great as the problems which would have been presented in the Griffin case. Unquestionably, the problems there were legislative, not judicial. On the other hand, those appearing here are primarily judicial, rather than legislative. The fact that review of the action is to be by the courts is an indication that the provision is addressed to the courts. That 25 years have passed without any implementing or enabling legislation by the General Assembly would indicate that it agrees that the provision was not addressed to it and that legislation...