McCulloch, C. J.
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:
“State of Arkansas, Executive Department.
“Proclamation.
“To all to whom these presents shall come — Greetings:
“Know ye that, whereas, by virtue of power and authority vested in me by § 19 of article 6 of the Constitution of the said 'State, I do, by these presents, call a special session of the General Assembly of the said State to meet and convene at Little Pock, the seat of government, in the State Capitol, at the hour of twelve o’clock noon, on the 24th day of March, 1924, and I specify the purposes for which the General Assembly is convened to be as follows, to-wit:
i£l. To enact a law imposing a tax on net incomes for the calendar year 1924, and each year thereafter, of individuals and corporations resident in this State or having a business or agency herein.
££2.. To take such action as is deemed proper in regards the collection of the tax imposed by act 345 of 1923, the gross income tax law.
££3. To amend the severance tax act 118 of 1923 with reference to the tax on bauxite.
££4. To make all appropriations necessary for the expenses of this session and to carry out the purposes and provisions of any laws enacted thereat.”
Our decision in the case of Jones v. State, 154 Ark. 288, 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 proclamation of the Governor. We feel constrained to add our approval to the statement of the law made in the dissenting opinion in that case, that the provision of the Constitution in question merely requires the Governor “to confine legislation to particular subjects, and not to restrict the details springing out of the subjects enumerated in the call.” In other words, the Governor must determine whether or not an emergency exists for calling a session of the Legislature, and then must specify the purposes of the legislation thought to be necessary to relieve the emergency, and such legislation must be confined to the general purposes specified in the proclamation. Much latitude is allowed for the specification by the Governor in his proclamation, but the purposes of legislation must be definitely specified, either broadly or in detail. That responsibility cannot be avoided by the executive, for the Legislature cannot be called together without a specification of the purposes of legislation to be considered.
Now, in the proclamation before us for consideration, the Governor merely specified the enactment of “a law imposing a tax on net incomes.” It is thus seen that the scope of the legislation is the enactment of “a law imposing a tax on net incomes,” and the passage of a law of a wholly different character does not fall within that specification. It is too obvious for controversy that .an excise tax on the sales of merchandise of any kind is not “a tax on net incomes.” Such a law has none of the elements of an income tax, and, on the contrary, the mere statement of the two characters of statutes shows their dissimilarity. A sales tax is the antithesis of an income tax, for the former may be, and generally is, added to the price and thus passed on to the purchaser, whilst the latter must be paid by the one who earns the income, and it cannot be passed on to another. If it were merely stated in the call, as one of the purposes of the session, that a law should be passed raising additional revenue for a given purpose, then the Legislature could adopt its own method in prescribing by statute the kind of tax to be adopted. But, in the present case, there is no designation of the ultimate purpose for which the tax is to be levied, and the sole guide in determining the purpose of the legislation is that it shall'be an income tax— there are no other words of definition found in the call. Therefore we are concluded, we think, in determining the validity of the statute, by the fact that the Governor called the session for the purpose of passing an income tax law, and that this law does not fall within that class.
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McCulloch, C. J.
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:
“State of Arkansas, Executive Department.
“Proclamation.
“To all to whom these presents shall come — Greetings:
“Know ye that, whereas, by virtue of power and authority vested in me by § 19 of article 6 of the Constitution of the said 'State, I do, by these presents, call a special session of the General Assembly of the said State to meet and convene at Little Pock, the seat of government, in the State Capitol, at the hour of twelve o’clock noon, on the 24th day of March, 1924, and I specify the purposes for which the General Assembly is convened to be as follows, to-wit:
i£l. To enact a law imposing a tax on net incomes for the calendar year 1924, and each year thereafter, of individuals and corporations resident in this State or having a business or agency herein.
££2.. To take such action as is deemed proper in regards the collection of the tax imposed by act 345 of 1923, the gross income tax law.
££3. To amend the severance tax act 118 of 1923 with reference to the tax on bauxite.
££4. To make all appropriations necessary for the expenses of this session and to carry out the purposes and provisions of any laws enacted thereat.”
Our decision in the case of Jones v. State, 154 Ark. 288, 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 proclamation of the Governor. We feel constrained to add our approval to the statement of the law made in the dissenting opinion in that case, that the provision of the Constitution in question merely requires the Governor “to confine legislation to particular subjects, and not to restrict the details springing out of the subjects enumerated in the call.” In other words, the Governor must determine whether or not an emergency exists for calling a session of the Legislature, and then must specify the purposes of the legislation thought to be necessary to relieve the emergency, and such legislation must be confined to the general purposes specified in the proclamation. Much latitude is allowed for the specification by the Governor in his proclamation, but the purposes of legislation must be definitely specified, either broadly or in detail. That responsibility cannot be avoided by the executive, for the Legislature cannot be called together without a specification of the purposes of legislation to be considered.
Now, in the proclamation before us for consideration, the Governor merely specified the enactment of “a law imposing a tax on net incomes.” It is thus seen that the scope of the legislation is the enactment of “a law imposing a tax on net incomes,” and the passage of a law of a wholly different character does not fall within that specification. It is too obvious for controversy that .an excise tax on the sales of merchandise of any kind is not “a tax on net incomes.” Such a law has none of the elements of an income tax, and, on the contrary, the mere statement of the two characters of statutes shows their dissimilarity. A sales tax is the antithesis of an income tax, for the former may be, and generally is, added to the price and thus passed on to the purchaser, whilst the latter must be paid by the one who earns the income, and it cannot be passed on to another. If it were merely stated in the call, as one of the purposes of the session, that a law should be passed raising additional revenue for a given purpose, then the Legislature could adopt its own method in prescribing by statute the kind of tax to be adopted. But, in the present case, there is no designation of the ultimate purpose for which the tax is to be levied, and the sole guide in determining the purpose of the legislation is that it shall'be an income tax— there are no other words of definition found in the call. Therefore we are concluded, we think, in determining the validity of the statute, by the fact that the Governor called the session for the purpose of passing an income tax law, and that this law does not fall within that class.
It is contended, however, that, while the proclamation does not mention the purposes to which the revenue to be raised must be devoted, we can look to the “history of the times” to ascertain that the purpose was to raise additional revenue for school purposes; that certain public acts and declarations made iby the Governor, in public addresses and newspaper interviews, mass meetings held, and the appointment of committees, show that there was a great public campaign made for the purpose of raising money for educational purposes, and that vie can take notice of the fact that this movement prompted the Governor to call the extraordinary session of the Legislature, and that, when we thus view the situation, we should determine that the ultimate purpose -of the tax was that it was to be used for school purposes. The Governor specified, presumably, all that was in his mind at the time he issued the proclamation, and we are not at liberty to go back of that call to determine what the purpose of the taxation was intended for. The call was to pass an income tax law, and the passage of such a law, regardless of the appropriation made of the revenues thus raised, would have been within the call, but any other kind of tax, regardless of the appropriation to any given use, was not within the call. The mental attitude of the Governor as to his intention, not expressed in the proclamation, does not supply the specifications required by the Constitution.
It is also argued that the fact that the Governor, in two other sections of the proclamation, referred to other statutes which we judicially know were -statutes raising revenue for school purposes, is sufficient to -constitute the proclamation a designation of the raising of revenue for school purposes to be the design of the call. We cannot agree to that view, for the second section of the Governor’s call merely designated legislation “in regards the collection of the tax imposed by act 345 of 1923, the gross income tax law;” and the third section merely related to an amendment to the severance tax. law with reference to the tax on bauxite. These are references to particular statutes which relate to the raising of revenue for school purposes, and the only effect of these two spécifications is to authorize the amendment or repeal of the gross income tax law, and the amendment of the law taxing bauxite. Neither of these sections call for the enactment of a sales tax for school purposes or for any other purpose. Our conclusion is therefore that the statute under consideration does not come within the specifications of-the Governor’s call.
Counsel for the State, in defending the validity of the statute, do not rely on any other ground except that the statute comes within the specifications of the Governor’s call, but there are other questions which necessarily raise themselves and call for a decision in determining whether or not this statute was legally enacted.
It appears from the record in this case that the Governor issued a supplemental call — and we take notice of it, even without it being in the record — during the extraordinary session, and that this supplemental call specified the passage of “a kind of a revenue law” for school purposes. The bill for the enactment of this statute was introduced'in the Senate on March 28, 1924, and finally passed the Senate on March 31, and was then sent to the House of Representatives. It was read the first time in the House on April 2, and was read the third time and passed on April 3. The proclamation of the Governor was made on April '2, after the bill had passed the Senate and was pending in the House. We deem it unnecessary to discuss the question whether or not the passage of the bill in the Senate, prior to the supplemental call authorizing the passage of such a bill, would render it invalid, for we are of the opinion that the Governor had no authority at that time to issue such a proclamation. The only authority of the Governor found in the language of the Constitution i,s that he may, by proclamation, “convene the General Assembly,” and that “he shall specify in his proclamation the purpose for which they are convened.” This is the scope and extent of his power, and he has no further control over legislation except to approve or disapprove the bills finally passed by both houses.
The question whether the Governor may, before the meeting of the session, amend his call, is not presented in the present controversy, and we expressly refrain from passing upon that question, but we do hold that, after the session has begun, pursuant to the call of the executive, the power of the executive over that particular session has been exhausted. He may call another session, but he has no authority to interfere with the proceedings of the session then progressing by directing the further course of legislation. When the session begins, the lawmakers themselves are, under the Constitution, in complete control of the situation, subject, of course, to the prescribed restrictions that “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.” The Legislature in extraordinary session determines for itself the extent to which it will enact legislation specified in the call, and, when that is determined, the Legislature may extend the session and take up other legislation.
Under the Constitution there is no other way for the General Assembly to consider and transact business outside of' the specifications of the Governor’s call, except by providing by a two-thirds vote for an extension of the session after the completion of the business specified in the proclamation. In the Constitutions of Mississippi, Missouri, Montana, Oklahoma, Nevada and Utah, and perhaps in some of the other States of the Union, there is an express provision authorizing the Governor, during an extraordinary session, to specify, from time to time, additional matters to be considered, and in those States, of course, it is the practice to exercise that authority, and legislation enacted pursuant to it has been upheld. But it will be noted that our Constitution contains no such provision; on the contrary, it limits the authority, as we have already seen, to a proclamation convening’ the session and specifying the purposes for which the session is convened. If the Governor could, by repeated or supplemental specifications during the session, prolong it indefinitely, he could thereby deprive the Legislature of its constitutional power of remaining in session for general legislation. It seems clear to us that it was not the intention of the framers of the Constitution to confer'any such power on the Governor. The language used does not justify it, but, on the contrary, it is against any such view. The Constitution prescribes an orderly method for calling into existence an extraordinary session, distributing the powers between the Governor and the Legislature, and neither can encroach upon the powers of the other.
The further question arises whether we should indulge the presumption that the Legislature extended the session for the purpose of taking up other legislation, or that the passage of this bill was tantamount to an extension of the session for that purpose. The first answer to this suggestion is that we take judicial notice of the contents of the records of the General Assembly, and we know that there was no formal extension of the session, therefore no presumption can be indulged in that respect. The enactment of this bill cannot be treated as tantamount to an extension of the session for the purpose of its enactment. This is, so for more than one reason. The Constitution requires that an extension must be “by a vote of two-thirds of all members elected to both houses, entered upon their journals.” This bill received two-thirds of the vote in the House, but did not receive two-thirds of the vote in the Senate. Moreover, it is clear to us that the mere enactment of a bill not within the call, even by a two-thirds vote, is not tantamount to an extension of the session for the purpose of passing the bill. The language of the Constitution is clear and unmistakable. It means that, when the business within the call is completed,'then there may be an extension of the.session, otherwise the session comes to an end by operation of the force of the constitutional provision. The Legislature must, of course, determine for itself when it has concluded the consideration of business mentioned in the call. It may do so by either passing or rejecting the bills providing for legislation within the call, or it may determine, by formal resolution, that it has completed its consideration of the business embraced in the call, and then determine whether or not there shall be an extension of the session for other business, and this must be done by a two-thirds vote. Ir. this instance there is nothing on the journal of the House to show that, after the completion of the business in the call, there was an extension of the session.
In the Jones case, supra, we said:
“Inasmuch as the session of the General Assembly was not extended by the vote of two houses after the completion of the business embraced in the Governor’s call, the.act under review must fall as having been passed without constitutional authority, unless authorization for its enactment is found in the Governor’s proclamation.”
The Constitution was intended to mark a clear and definite line between the business embraced in the call and the consideration of other business. There is a positive command that no other business shall be taken up until that has been disposed of, and then there may be an extension of the session, if, by a vote of two-thirds of all the members elected to both houses, and entered on the journals, such an extension shall be decided upon. In no other way can the Legislature take up further legislation.
Our conclusion therefore is that, in no view of ihe matter, has this piece of legislation been legally enacted, and the chancery court was correct in so deciding.
The decree is affirmed.