Russell v. Cone , 168 Ark. 989 ( 1925 )

The majority opinion announces the rule that the Legislature has power by bill to appoint holdover committees to complete the journals and enroll the bills and present them to the Governor for his approval, or disapproval, without limitation as to number, clerical help, or compensation. It is conceded by the majority that obviously a much larger number of committeemen and helpers were provided for in the bill than necessary. If it had not been conceded, it is a demonstrable physical fact that it did not require between ninety and one hundred persons to wind up the business of the Legislature. The history of the State has revealed that the President of Senate, Speaker of the House, clerk of the House and his regular assistants, secretary of the Senate and his regular assistants, the journal clerks and their regular assistants, the regular enrolling committees of the two houses and their clerks or stenographers have been sufficient in number to prepare the journals for filing and the bills for presentation to the Governor. None of the cases cited in the majority opinion lay down the rule that the Legislature has unlimited authority to create by bill unnecessary holdover committees, or to provide the committees with unnecessary employees, or to provide unreasonable compensation for them. The majority has laid down this rule in the instant case under the conviction that the Legislature has unlimited power, if it has power at all, to do a thing. It is believed by the majority that a legislative power may be exercised by that body in an unreasonable manner. In other words, that the Legislature has unlimited discretion to exercise any one of its powers in any manner it may please. In the opinion of the minority, this court in the past committed itself to an exactly contrary rule or doctrine. This court said in the case of Louisiana Arkansas Railway Company v. State, 82 Ark. 12, "That the Legislature has the general power of supervision of railroads, and the power to require them to establish and maintain stations at points designated by the legislature, cannot be doubted. It is equally true, however, that such power must be exercised reasonably and with due regard to the rights of corporations, for they have rights which the Legislatures as well as courts must respect. But who is to be the judge whether or not the power has been exercised reasonably or unreasonably and arbitrarily? * * * We think the power of the Legislature in this respect, and the decree of conclusiveness to be accorded to its determination of the necessity and propriety of its action, are the same as in other instances where the Legislature is to determine the facts which call for direct legislation. The greatest latitude should be given to the lawmaking body in determining the necessity for its acting; but the power must not be exercised arbitrarily and without reason." The third syllabus of the case is as follows:

"A legislative determination that a station should be erected and maintained at a certain point is conclusive unless the courts can declare, as a matter of law, that such determination is arbitrary and unreasonable." The syllabus is taken almost bodily from an opinion of the United States Supreme Court in the case of Norwood v. Baker, 172 U.S. 269, cited by this court in the case of Louisiana Arkansas Railroad Company v. State, supra.

Again, this court said in the case of Coffman v. St. Francis Drainage District, 83 Ark. 54, that (quoting syllabus No. 1), "While the Legislature, in creating a drainage district, may provide what lands shall be assessed for the improvement, and the extent of such assessment, the courts will interfere where the act of the Legislature is such an arbitrary abuse of the taxing power as would amount to a confiscation of the property without benefit." The same rule applies where a legislative assessment of benefits is on its face discriminatory between the different tracts of land included in the district.

Again, it has been held by this court that the Legislature has the power to determine whether the required notice was given for the passage of a local bill, and that when exercising the authority within the power, it was a legislative question and not a judicial one; but, notwithstanding this ruling, when it became apparent or obvious that the notice could not have been given between the calling and convening of the special session of the Legislature, the court did not hesitate to say that the Legislature exceeded its authority. Booe v. Road Improvement District, 141 Ark. 140.

Mr. Justice WOOD and the writer are of the opinion that the extent of or limitation upon any power which the Legislature may possess is as much a judicial question as whether it has power to do the thing; and further, whether a power possessed by the Legislature has been exercised in a reasonable manner or in an arbitrary, unreasonable manner, is also a judicial and not a political question. In the instant case we think the power was exercised in an unreasonable manner and that the act, in so far as same is unreasonable, should be declared to be void. For the reason assigned, we most respectfully dissent from the majority opinion.