State v. Moore

• Decision Date: 24 June 1905
• Citation: 88 S.W. 881,76 Ark. 197
• Parties: STATE v. MOORE
• Court: Arkansas Supreme Court

88 S.W. 881

76 Ark. 197

STATE v. MOORE

Supreme Court of Arkansas

June 24, 1905

Appeal from Pulaski Chancery Court, JESSE C. HART, Chancellor.

Affirmed.

Robert L. Rogers, Attorney General, and Jas. H. Stevenson, for appellant.

Charles Jacobson, for appellee.

MCCULLOCH J. HILL, C. J., dissenting.

OPINION

MCCULLOCH, J.

The Attorney General brought this suit in the Pulaski Chancery Court to restrain the Auditor of State from drawing his warrant upon funds appropriated by an act of the General Assembly approved March 17, 1905, the title and preamble of which read as follows: "An act to promote the efficiency of the Arkansas State Guard, and for other purposes. Whereas the strength of the Arkansas State Guard, shown by official roster, active force, aggregate 2,141 officers and men; and whereas, said organization has heretofore been recognized by the national government, receiving therefrom all allotments under section 1661, Revised Statutes, as amended, or other laws: and whereas, it is essentially required of the organized militia, if same shall have further support of the national government, that certain duties be actually performed according to the laws of Congress relating thereto and whereas, in order to carry out the provisions of the act of Congress approved January 21st, 1903, it is necessary that the State render financial aid to its citizen soldiery: Therefore, be it enacted by the General Assembly of the State of Arkansas," etc. The act then proceeds to appropriate the sum of $ 25,000, or so much thereof as may be necessary, for the purposes provided for, specifying the items for which the same shall be expended, viz., salaries and contingent expenses of officers of the State Guard, for expenses of military encampments, practice, etc., rent of armories and storage rooms, and for other expenses in maintaining the organization of the State Guard, and handling and preserving the military equipments. The validity of the act is called in question on the ground that in neither branch of the Legislature, on the vote for final passage, did the bill receive in its favor the votes of two-thirds of the members of each house, as required by section 31 of article 5 of the Constitution of the State. That section of the Constitution and the preceding section read as follows:

"Sec. 30. The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State. All other appropriations shall be made by separate bills, each embracing but one subject.

"Sec. 31. No State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the State, for defraying the necessary expenses of government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly."

It is conceded that the bill received in its favor the votes of a majority, but not two-thirds, of the members of each house. The Attorney General contends that the subject-matter of the appropriation does not fall within either of the exceptions expressed in section 31, and required for its passage the affirmative vote of two-thirds of both houses of the General Assembly. We are therefore asked to declare that on account of the failure to receive the necessary affirmative vote the bill never became a law. On the other hand, it is contended for appellee that the appropriation was for the "necessary expenses of government."

The duty and power of courts to declare an act of the legislative body void because in conflict with the Constitution, either from want of constitutional power to enact it or from lack of observance of some of the forms or conditions imposed by the Constitution, is so plain and well established that we indulge in no discussion of that question at this time. It is equally well established, however, that such power should be exercised by the courts with great caution, and only when the terms of the Constitution have been plainly violated. Chief Justice MARSHALL, who first authoritatively announced the doctrine that courts possess such power, subsequently said: "The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87, 3 L.Ed. 162. A similar expression is given by the same learned court in the case of Ogden v. Saunders, 25 U.S. 213, 12 Wheat. 213, 6 L.Ed. 606, where Mr. Justice WASHINGTON said: "But if I could rest my opinion in favor of the constitutionality of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory indication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt." Judge COOLEY, in treating the same subject, says: "The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but the courts cannot assume their rights. The judiciary can only arrest the execution of a statute when in conflict with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power." Cooley's Const. Lim. (7th Ed.) p. 236. The same learned author at another place (page 255) says: "The duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For, as a conflict between the statute and the Constitution is not to be implied, it would seem to follow, where the meaning of the Constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect."

The same presumption is indulged in favor of the legislative enactment with reference to the form of the statute and the constitutional prerequisites and conditions as to the subject-matter of the legislation. Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844; Cooley, Const. Lim. p. 195.

This court, in the case of State v. Sloan, 66 Ark. 575, 53 S.W. 47, in upholding the validity of an act providing for the building of a new state capitol, the bill for which had not received the votes of two-thirds of both houses of the Legislature, said: "There is nothing in the Constitution of this State defining what is a necessary expense of government, or denying or limiting the right of the Legislature to determine the question. On the contrary the right is impliedly delegated to it; for the power to appropriate money to defray the necessary expenses of government carries with it the right to determine what is a necessary expense. Upon this principle local and special laws have been upheld by this court, notwithstanding the Constitution denies to the Legislature the power to pass a special or local law in any case where a general law, which would afford the same relief, could be enacted; holding that the power to pass a special or local act under given circumstances empowered it to determine when the circumstances existed" -- citing Davis v. Gaines, 48 Ark. 370; 3 S.W. 184; Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. 6; Carson v. Levee District, 59 Ark. 513, 27 S.W. 590; Powell v. Durden, 61 Ark. 21, 31 S.W. 740. To the same effect, see St. Louis S.W. Ry. Co. v. Grayson, 72 Ark. 119, 78 S.W. 777. The court in the Sloan Case did not mean to lay down the doctrine, nor do we now, that the power of the Legislature to determine what is a necessary expense of government is arbitrary, bounded by no limitations, and absolutely beyond control by the judicial department. We can readily call to mind subjects for appropriation so obviously beyond the scope of what may be deemed necessary expenses of government that the court could, and in duty should, ignore a legislative determination, and declare as a matter of law that the same do not fall within that class. The words "necessary expenses of government," as employed in the Constitution, do not refer to the necessity, expediency, or propriety for the amount of the appropriation, but are intended as a classification of a character of expenses which may...