Sims v. Weldon
| Decision Date | 16 June 1924 |
| Docket Number | 44,57 |
| Citation | 263 S.W. 42,165 Ark. 13 |
| Parties | SIMS v. WELDON |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.
Decree affirmed.
J S. Utley Attorney General, John L. Carter, Wm. T Hammock, Darden Moose, and J. S. Abercrombie, Assistants, for appellant.
The Legislature is primarily the judge as to whether or not an act falls within the scope of an executive proclamation. 147 Ark. 453. It is true that in this case the Governor designated the enactment of an income tax law; but the method of providing the needed revenue was a question of legislative policy peculiarly within the sphere and jurisdiction of the General Assembly. The detail of providing such revenue relates back to the emergency which made the extraordinary session necessary, viz: the extreme financial needs of the public schools of the State; and, though the bill enacted may not be in the form prescribed, yet, if it meets the emergency which prompted the call, it is within the proclamation--especially when approved by the Governor as responsive to his call. 154 Ark. 295-6. On the question of the power of the Legislature in special session, see 154 Ark 551, at page 559. In passing upon the contention raised by appellee that the Governor's proclamation does not bring itself within the requirements of art. 6, § 19, of the Constitution, because not broad enough to amount to stating the subject-matter upon which the lawmakers could act, and because the act in question was not specified in the proclamation, we think the court is justified in taking into consideration the public notoriety of the emergency, the extreme financial distress of the public schools, which made the calling of the Legislature into extraordinary session necessary. Taking the history of the call into consideration, the Governor's proclamation was broad enough to justify construing it as stating the subject of legislation to be for school revenue, and as authorizing the Legislature to pass the bill in question. The same principle employed in interpreting a provision of the Constitution ought to be employed in interpreting the meaning of a proclamation by the Governor in calling an extra session. 105 Ark. 380; 85 Ark. 89.
Cockrill & Armistead, for appellee.
The act is not within the purview of the Governor's proclamation, and is therefore void. It is the mandatory duty of the court to go behind the act to the proclamation in order to determine whether the act is within the purview of the proclamation. 154 Ark. 288. A reading of the act and of the specifications contained in the Governor's proclamation, together with the opinion of the court in 154 Ark. 288, just cited, sustain the decree of the chancery court without further argument; but the question raised by this appeal involves more than whether this particular act shall stand. It brings into issue a vital principle of constitutional law. The evils of numerous special sessions of the Legislature are great enough, even with art. 6, § 19, of the Constitution relating to extraordinary sessions enforced and applied. The thought embodied in the Constitution as expressed in art. 5, §§ 5 and 16, and by Amendment No. 8, is that once in two years is sufficient for the meetings of the General Assembly authorized to pass general measures without limitations, and in order to guard against excess legislation the terms of the general sessions are limited; but, realizing that emergencies might arise requiring legislation between the general sessions, this § 19 of article 6 was brought in. The object and purpose of the limitation upon the power of the General Assembly, assembled upon the call of the Governor upon extraordinary occasions, is to check excess legislation, and to render laws a little more stable by furnishing a period of two years, during which they may be to some degree subjected to the test of a brief experiment. 115 P. 696-698; 161 S.W. 1006; 207 P. 611, 613. The validity of an act passed at a called session depends therefore upon whether its subject-matter is within the purview of the specifications contained in the proclamation; if not, it is void. An excise tax on cigarettes and cigars does not come within the purview of a call for the passage of a net income law. In 154 Ark. 288, supra, it was held that the approval of the act by the Governor did not supply the lack of authorization for its enactment in the proclamation. That proposition is also supported by the following cases: 19 S.W. 530; 34 S.W. 769; 2 Heisk. (Tenn.) 759; 90 Mo. 646; 107 S. E. (Ga.) 765; 77 Ill. 127; 110 Mo. 286; 127 S.W. 208. An excise tax or a license tax upon those engaged in particular occupations, though graded in accordance with income, is a tax on the occupations, and is not an income tax. 26 R. C. L., "Taxation," § 116; 23 Grat. (Va.) 464; 28 L. R. A. 110; 82 S. E. (Va.) 695; Black on Income Taxes, § 3; 47 N.W. 280; 93 S.W. 436, 453.
Rowell & Alexander filed a brief on behalf of appellee, as amici curiae.
OPINION
Appellee is engaged in the business of retailing cigarettes and cigars in the city of Little Rock, and he instituted this action attacking the validity of the statute passed at the recent extraordinary session of the General Assembly attempting to levy a tax on the sale of cigarettes and cigars--two dollars per thousand on cigarettes and ten per centum on the price of cigars sold in the State by retail dealers. The ground on which the validity of the statute is assailed is that the constitutional requirements were not complied with. No attack is made upon the form or substance of the statute itself or upon the authority of the Legislature to pass such a statute under circumstances which would meet the requirements of the Constitution.
The first question raised is whether or not the statute falls within the purposes specified by the Governor in his proclamation calling the extraordinary session. The Constitution of 1874 contains the following provision with respect to extraordinary sessions of the General Assembly:
"The Governor may, by proclamation, on extraordinary occasions 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 an 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 members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days." Article 6, § 19.
The amendment adopted in the year 1913 (Amendment No. 8) makes no change in the section quoted above which has any bearing on the present controversy. The only change related to compensation of members of the Legislature, and provided that, when convened in extraordinary session, they shall receive three dollars per day for their services the first fifteen days, and that, if the session shall extend beyond fifteen days, they shall receive no further per diem.
The proclamation of the Governor was made on March 8, 1924, calling the session to begin on March 24, 1924, and reads as follows:
To, all to whom these presents shall come -- Greetings:
Our decision in the case of Jones v. State, 154 Ark. 288, 242 S.W. 377, is of much force in the present controversy, and is conclusive of some of the questions raised. In the first place, it was decided there that the constitutional provision now under consideration is mandatory, and that a statute enacted at an extraordinary session, not in conformity with the requirements of this provision, is void. It was also decided that the question whether or not a statute enacted at an extraordinary session falls within the purposes specified by the Governor is a judicial one, to be determined by the court ascertaining the validity or invalidity of the statute. Authorities supporting that view of the law were cited in the opinion. The rule announced in that case is that the lawmakers, when convened in extraordinary session, "may act freely within the call; may legislate upon all or any of the subjects specified, or upon any part of a subject; and every presumption will be made in favor of the regularity of its action," but that, when it appears to the court that the statute does not fall within the purposes specified, it is the duty of the court to declare the statute invalid. The statute under consideration in that case was declared invalid for the reason that it was not within the...
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