85 Ark. 171 | Ark. | 1908
(after stating the facts.) The question on this appeal is whether the act of 1903, making a continuing appropriation for the building of the new Capitol, is constitutional.
The General Assemblies of 1901 and 1903 each made a continuing levy of a tax for the purpose of building the new Capitol and made a continuing appropriation thereof. Neither of the last two General Assemblies have levied said tax or appropriated the funds arising therefrom. As there is no constitutional limitation forbidding a continuing levy, it is valid, and the levy will continue until it expires by its own limitation or is repealed by a subsequent Legislature. There is no controversy over this.
The question is solely as to the power of the General/4 Assembly to make a continuing appropriation. The general rule is that the acts of the General Assembly are valid unless in conflict with some express provision of the State or Federal Constitution, and it will not do to say that the act is contrary to the spirit of the Constitution, but the clause must be indicated and the repugnancy between it and the act apparent before the courts are justified in pronouncing the act null, x Lewis’s Sutherland, Stat. Con. (2d. Ed.), § 85.
The Attorney General lays his finger on section 28, art. 5, of the Constitution, and says it prohibits this continuing appropriation. The section reads as follows:
“No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriation shall be for a longer period than two years.”
The attorney for the capítol commissioner says that this section is dealing with the revenues raised for the ordinary expenses of the State government, and not with special taxes raised for specific purposes. In other words, that this clause relates to funds which sections 3416-3418 of Kirby’s Digest require to be balanced at the expiration of the appropriation period and the unexpended balances covered into the treasury. This statutory provision cannot apply to the fund in question, for another constitutional provision consecrates it solely to the purposes for which it was raised. Section 11, art. 16, reads: “No tax shall be levied, except in pursuance of law, and every law. imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” The section following it reads: “No moneys shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation.” Sec. 12, art. 16.
The argument is that these sections apply to taxes derived from specific levies which cannot be diverted from their purpose, and as to them the only requirement is that they shall not be paid out until appropriated, and that the act of 1903, making a continuing appropriation, meets this requirement, and that section 28, art. 5, is inapplicable.
To sustain this argument would require that something be written into the Constitution which is not there, and something written out of it which is there. There is no provision for or recognition of special levies for specific purposes in the Constitution, unless it be the mandate that no moneys arising from a tax levied for one purpose shall be used for any other purpose. These special levies are valid simply because they are not forbidden; the General Assembly can create whatever taxes it may deem necessary, when not restricted by some constitutional limitation. This provision is far from creating a system of special taxation, which would be governed by its own provisions, and not be controlled by general laws. An elementary principle of constitutional and statutory construction is that where there are special provisions governing a particular subject general provisions do not apply. Endlich on the Interpretation of Statutes, § § 223, 226. But there are no provisions in the Constitution to which the subject of special taxes as herein levied can be attached and section 28, art. 5 — the general rule as to appropriating taxes — be detached therefrom.
It is also argued that, as section xi, art. 16, takes this fund out of the power of the General Assembly to divert to any other purpose, there is no power left in the General Assembly to act in the premises, and that the requirement that appropriations be not made for more 'than two years would be meaningless if applied to this fund; and consequently, the only requirement is an appropriation under section 12, art. 16, and this has been met by the appropriation of 1903. It is unquestioned and unquestionable that section 11, art. 16, has taken this fund out of the power of the General Assembly to divert to any other purpose; and if the General Assembly has no power in the premises, it would be sound construction to hold that section 28, art. 5, did not apply to it, although the language is broad enough to do so, because it is not to be supposed that the Constitution would require of the Legislature the empty formality of appropriating this fund when it had no power over it. If the General Assembly has no power over this fund, then this provision does not reach to it, and will be limited in its operation to matters over which the Legislature has control. The question therefore is really whether the General Assembly has any power whatever over this fund which has been raised for the purpose of building the new capítol. In considering this question, it must be borne in mind that the Legislature has unlimited power over all the State’s internal affairs except where restrained by positive constitutional provision. There are no provisions in the Constitution touching this matter, except the one mentioned that the fund shall not be diverted.
Returning to the question, what power remains to the Legislature in the premises? suppose that a state of war should exist, and for the second time in its history a hostile army should approach the capital of the State, would it not be within the power of the Legislature to postpone this work and conserve these funds to a happier day? Suppose that the State was erecting this building on its own account, and not by contract,- and that structural material suddenly advanced to exorbitant prices for some temporary reason, would it not be the part of wisdom to delay tire work until this temporary enhancement passed? Other matters addressing themselves to the sound discretion of the Legislature, making it wise to postpone the work and' conserve the fund, might arise. No provision of the Constitution can be found forbidding action by the Legislature under the circumstances supposed; and what is not forbidden it is permitted it. If it be admitted that the Legislature can for any good cause postpone the work, deny the appropriation, and conserve the funds for a future date, then it must be admitted that the General Assembly can do so for any cause which seems to it good. It is not unusual in appropriating funds for the Legislature to limit the amounts for certain purposes; forbid certain things and command other things. Why has not the Legislature this same discretion in appropriating this fund to the completion of. the' new Capitol ?
There is certainly a limited field of legislative action in this matter, and, that being true, then it follows that • section 28, art. 5, must apply. It applies wherever the Legislature makes appropriations -which are not otherwise provided for. If the Legislature can appropriate this fund to the purpose for.which it was raised, or refuse to appropriate it or postpone its appropriation or direct the details of the appropriation, then it .is like any other fund — except the power of the Legislature is more limited — to be appropriated, and can. only be appropriated in conformity to the Constitution; and, when appropriated otheift wise, the act is unavailing. There is no mandate for the Legis\ lature to make the appropriation or ' act in the premises, and-its silence is as-potent as its positive- action. The continuing appropriation of the act of 1903 is in -conflict with this clause of the Constitution, and is necessarily void beyond two years; and, the Legislature not having acted-since that time, it is the legislative determination that this fund be conserved in the treasury until another Legislature appropriates it for-the purpose for which it was created.
Judgment reversed, and mandamus denied.
