Cottrell v. Faubus

J. Seaborn Holt, Associate Justice. The appellant, as a citizen and taxpayer, brought this suit for a judgment declaring Act 442 of 1961 to be unconstitutional. The original defendants were the Governor, the State Treasurer, and the members of the State Construction Board created by the act in question. Yarious state agencies, beneficiaries of the act, were permitted to intervene in the case. The appellant’s principal allegations of unconstitutionality are that the act is an omnibus bill of the type prohibited by Article 5, Section 30, of the constitution, and that the act delegates legislative power to the Construction Board, in violation of Article 4 of the constitution. The trial court sustained a demurrer to the complaint and dismissed the suit, thus in effect holding the act to he constitutional. It is necessary to consider only the first allegation of unconstitutionality. We hold that Act 442 is clearly in violation of Article 5, Section 30, which reads as follows: “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.” Act 442 contains at least 24 separate appropriations, totaling $12,478,000. Disregarding Section 9, which might be said to involve merely the transfer of funds, the appropriations made by the act may be summarized as follows: Section 2 appropriates $800,000 for the Municipal Aid Fund. Section 5 makes 16 appropriations for construction, improvements, repairs, etc., for State agencies and institutions as follows: Penitentiary, ' $350,000; Industrial and Training Schools, $650,000; Water System for Training School for Girls, $100,000;'Vocational Trade School, $500,000; Library Commission Building, $500,-000; National Guard Armories, $500,000; State Livestock Show, $500,000; Remodeling State Capitol, $250,000; State Parks, $2,900,000; Prairie Grove Battlefield Commission, $50,000; Arkansas Post, $65,000; History Commission, Archives, $25,000; Repairs to State Capitol, $135,000; Establishment of Diagnostic Clinics, $100,000; State Police, Construction of Communication Systems, $100,000; A. M. & N. College, Remodeling and Repairs, $150,000. Section 6 appropriates $338,000 for District and County Livestock Shows. Section 7 appropriates $2,000,000 for Salaries of Classroom Teachers. Section 11 makes 5 appropriations for construction, improvements, repairs, etc., for State agencies and institutions, as follows: Tuberculosis Sanatorium, $500,000; Military Department, $300,000; Children’s Colony, $400,-000; State Hospital, $1,250,000; State Parks, $15,000. It is settled by many cases that the purpose of a constitutional provision such as Article 5, Section 30, quoted above, is to prevent the inclusion of separate and unrelated appropriations in a single hill, because that practice opens the door to the evils that have come to he known as logrolling and pork barrel legislation. The general subject was first considered by this court in Fletcher v. Oliver, 25 Ark. 289, which involved a provision, in effect similar, in the constitution of 1868, requiring that no act embrace more than one subject. It was there said: “The object of this clause was to prevent combinations, by which various and distinct subjects of legislation should gain support, which they could not if presented separately.” And in Palmore v. State, 29 Ark. 248, the thought was repeated in this language: “The constitution required singleness of subject, to prevent omnibus hills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures which, alone, could not be passed.” Under the constitution of 1874 the leading case appears to be State v. Sloan, 66 Ark. 575, 53 S. W. 47, 74 Am. St. Rep. 106. In that case the court upheld an act which provided that a new state capitol should be built upon what was then the site of the state penitentiary, and, further, that the penitentiary commissioners should abandon the penitentiary grounds and construct a new penitentiary elsewhere. After pointing out that the different parts of an act must, under the constitution, relate directly or indirectly to the same object, the court adopted this rule: ‘ ‘ The unity of the subject of an appropriation is not broken by appropriating several sums for several specified objects, which ■ are necessary or convenient or tend to the accomplishment of one general design, notwithstanding other purposes than the main design may be thereby subserved.” Since the legislature had directed that the new capitol be erected where the penitentiary stood it was evidently necessary to construct a new penitentiary for the safekeeping of convicts, as required by law. Hence the act embraced only one subject, which the court stated to be “the building of a state capitol upon the ground now occupied by the penitentiary. ’ ’ The decision in the Sloan case is controlling here and indicates the invalidity of Act 442. This act contains more than a score of distinct appropriations for miscellaneous and disconnected subjects. It cannot seriously be contended that only one subject is embodied in a bill which makes separate appropriations for municipal aid, the penitentiary, schools, livestock shows, classroom teachers’ salaries, the children’s colony, the state parks, and several other purposes. The constitution was intended to prohibit the passage of just such an omnibus bill as this one. We do not seem to have previously had occasion to hold an act invalid under this section of the constitution, but the reason is that no prior act considered by this court has even remotely resembled Act 442 in its wide diversity of unrelated purposes. In Fletcher v. Oliver, cited above, it was argued that an act providing for the construction of highways and bridges embraced two subjects, but we upheld the act for the obvious reason that bridges are essential parts of highways. In Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272, it was held that an appropriation of $5,000 for various necessary expenses of the State Investment Board, all in connection with a refunding of bonds, was not an omnibus appropriation. The only prior case that can be regarded as having presented even a doubtful situation was the Sloan case, and we have discussed the grounds upon which the court concluded that only a single subject was involved there. The diversified purposes embraced by Act 442 are so clearly disconnected that the appellees do not even argne that the several appropriations relate to a single subject-matter if the question is to be tested by the various appropriations themselves. It is insisted, however, that the act disposes of surplus funds and therefore such funds should be declared to be the only subject of the bill, thereby satisfying the constitutional requirement. In this connection an Oklahoma case, Black v. Okla. Funding Bond Commission, 193 Okla. 1, 140 Pac. 2d 740, is cited. That case is not similar to this one, because there the act appropriated net surplus revenues for one purpose only, the retirement of outstanding bonded indebtedness. There was no diversity of subject-matter such as appears in Act 442. The only way appellees could possibly argue, with any semblance of logic, that Act 442 is constitutional is to contend that the single subject of the act is money. To sustain that contention would be to entirely erase the provisions of Article 5, Section 30 of the constitution and would make it possible to substitute a single appointive board for the legislature in the matter of appropriating state revenues. Act 442 cannot be sustained on the theory that the appropriation of surplus funds to a great variety of objects constitutes a single subject within the meaning of the constitution. The constitution makes no exception in the case of surplus funds; it applies to all appropriation bills. In the Sloan case it was said that the several specific objects must relate to one main design. We cannot say that the General Assembly’s main design in adopting Act 442 was simply to spend up to $12,478,000 of the taxpayers’ money, so that the selection of the various purposes for this huge outlay would become merely a consideration secondary to the main design. An additional and, we think, conclusive reason for rejecting this surplus funds theory is to be found in the fact that the determination of what constitutes surplus funds lies entirely within the discretion and control of the legislature. It appears that funds in the state treasury can be regarded as surplus if they have not yet been appropriated or if they fall in that classification under the Revenue Stabilization Law. Ark. Stats., § 13-501 et seq. Both these matters are wholly subject to legislative control. Yet Article 5, Section 30, of the constitution was evidently intended'to serve as a restraint upon the legislature. If, however, the present argument should be upheld the restraining power of this section would be destroyed, for the legislature could, at any point in its session after the adoption of the general appropriation act, declare all remaining public funds to be surplus and therefore subject to inclusion in an omnibus bill. The constitution clearly should not be construed in such a way as to defeat its own purpose, but that would be the effect of sustaining the appellees’ contention. It is also argued that the legislature has occasionally adopted bills, such as those to pay claims against the State, that are said to contain appropriations for more than one subject. It is not necessary for us to express an opinion as to the validity of such measures, since the fact that the legislature may have passed one unconstitutional act obviously does not give it the power to pass another. Act 442 is plainly unconstitutional upon the first ground argued by the appellant; so it becomes unnecessary to consider the question whether it also contains an improper delegation of legislative power. It is noted that the aet contains a separability clause, but no one of the various appropriations can be upheld to the exclusion of the others. In the absence of any indication of the legislative preference there is no basis for this court to conclude that by the separability clause the General Assembly meant for some particular appropriation to be upheld. The decree is reversed and a judgment will be entered in this court declaring Act 442 to be unconstitutional in its entirety. It is so ordered. Ward, J., concurs. Harris, C. J., Robinson and Johnson, JJ., dissent.