Wells v. Riviere

599 S.W.2d 375, 269 Ark. 156, 1980 Ark. LEXIS 1494

• Court: Supreme Court of Arkansas
• Decided: June 2, 1980
• Docket: 80-100
• Status: Published

Opinions

Darrell Hickman, Justice.

The question presented by this appeal concerns the constitutional authority of the Arkansas General Assembly to act after a regular 60-day session. In order to properly examine that issue, it is necessary to relate in detail the proceedings in the trial court and the undisputed facts.

This suit began in the Chancery Court of Pulaski County. John F. Wells filed a taxpayers lawsuit, individually and on behalf of the Independent Voters of Arkansas, Inc. against Paul Riviere, the Arkansas Secretary of State. Wells sought an injunction to prevent Riviere from proceeding to place three proposed constitutional amendments on the ballot in the General Election of November, 1980.

The three proposed constitutional amendments relate to the assessment of property and taxation (Senate Joint Resolution 1), usury (House Joint Resolution 9, and the jurisdiction and venue of Arkansas courts (House Joint Resolution 10.)

Robert Harvey, a taxpayer, was allowed to intervene in support of the validity of the property assessment and taxation amendment, Senate Joint Resolution 1.

The parties stipulated to the relevant facts, and all parties filed motions for summary judgment. The chancellor found that the three proposed amendments to the Constitution had been properly adopted by the General Assembly and denied the request for an injunction.

There are no procedural problems with this case. The appellants have the right to sue as taxpayers to prevent an illegal exaction. Ark. CONST, art. 16, § 13. The chancellor also had jurisdiction.

The question to us is one of the constitutional authority granted to the legislative branch of Arkansas government. The General Assembly is authorized by Ark. CONST, art. 19, § 22 to propose amendments to the Constitution. However, the proposed amendments cannot exceed three in number and must be approved by a majority of the members of each house at a regular session of the General Assembly.

The appellants argue that since the proposed amendments were not approved at a regular session, they were not legally proposed and should not be certified to the voters for approval or rejection.

There are only two kinds of sessions of the General Assembly in Arkansas. A regular biennial session of the General Assembly is provided for in Ark. CONST, art 5, §§ 5 and 17.

The only other session of the General Assembly authorized by the Arkansas Constitution is one convened by the governor on extraordinary occasions. Ark. CONST, art 6, § 19- Purcell v. Jones, 242 Ark. 168, 412 S.W. 2d 284 (1967). It is agreed that the General Assembly was not in a special session when it approved the three proposed amendments.

The facts are that the Seventy-Second General Assembly of Arkansas convened at its regular session on January 8, 1979. After it convened, Senate Concurrent Resolution 14 was adopted extending the sixty-day regular session. The resolution provided that the General Assembly found that it would be impossible to consider all the measures introduced within sixty days and, therefore, an extension of the regular session was necessary. There was no time limit to the extension.

On April 4, 1979, the General Assembly recessed; it reconvened on April 20, 1979- On April 20th, by Senate Concurrent Resolutions 91 and 92, the regular session recessed for 20 months until January, 1981.

Senate Concurrent Resolution 91 actually provides five things, First, it confirmed that the General Assembly had extended itself indefinitely. Second, it says that it may reconvene on May 9, 1979, for limited purposes. Third, it says it may reconvene the second Monday in January, 1980. Fourth, it says, notwithstanding these other three provisions, the regular session of the Seventy-Second General Assembly is extended until the second Monday in January, 1981. That is the same day that the next General Assembly, the Seventy-Third, convenes. The resolution concludes by providing that the Speaker of the Flouse of Representatives and the President pro tern of the Senate may reconvene the Seventy-Second General Assembly at any time by their joint proclamation.

The actual language of the resolution in each regard is as follows:

First, regarding the indefinite extension,

WHEREAS, the regular session of the Seventy-Second General Assembly has been extended indefinitely in the manner authorized in the Arkansas Constitution . . . [Emphasis added.]

Second, regarding the reconvening of the General Assembly in May:

SECTION 3. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly may be reconvened on the Wednesday, May 9, 1979 by joint proclamation of the Speaker of the House' of Representatives and the President Pro Tem of the Senate declaring the need for such reconvened session. In the absence of such proclamation, the Seventy-Second General Assembly shall continue in recess as provided in this Resolution. [Emphasis added.]

Any session reconvened pursuant to this Section 3 shall be for the sole purpose of:

(1) correcting errors going to the validity of bills passed prior to the recess,

(2) appropriate action on fiscal matters including but not limited to appropriation bills, revenue bills, purchasing and accounting procedures, and revenue classification and allocation,

(3) reconsideration of bills or parts of bills disapproved by the Governor,

(4) referral of matters to standing, select, or special committees or to the Joint Interim Committees for action or study, or

(5) matters of rules and procedures.

Upon recess of a session reconvened pursuant to this Section 3, all business then pending in committee or on the calendar shall become a nullity, except a proposed amendment of the Arkansas Constitution previously adopted by both houses and except matters of rules and procedures.

Third, relating to the reconvening in January, 1980:

SECTION 4. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly shall reconvene on the second Monday in January, 1980, unless the Speaker of the House of Representatives and the President Pro Tem of the Senate by joint proclamation declare that there are no substantive matters requiring the attention of the Seventy-Second General Assembly. In the event that the Speaker of the House and President Pro Tem of the Senate determine that there is no need for reconvening of the Seventy-Second General Assembly on the second Monday in January, 1980, the Seventy-Second General Assembly shall continue in recess as otherwise provided herein. [Emphasis added.]

Fourth, Section 1 declares that the General Assembly is recessed until the same day that the Seventy-Third General Assembly is convened. It reads:

SECTION 1. At the close of business on a day mutually agreed to by the House of Representatives and the Senate pursuant to this Resolution, the Seventy-Second General Assembly shall stand in recess until the second Monday in January, 1981, at which time, prior to the convening of the Seventy-Third General Assembly, the Speaker of the House of Representatives and the President Pro Tem of the Senate of the Seventy-Second General Assembly shall adjourn their respective bodies sine die, unless the Seventy-Second General Assembly shall, at an earlier session thereof, decide on an earlier date for sine die adjournment. [Emphasis added.]

Fifth, the language of the resolution regarding reconvening at any time reads:

SECTION 5. The Seventy-Second General Assembly, standing in recess, may be reconvened at any time by joint proclamation of the Speaker of the House and President pro tem of the Senate or by joint address of a majority of the members elected to each house of the Seventy-Second General Assembly. [Emphasis added.]

Apparently the General Assembly did not reconvene in May as provided for in Section 3.

It did reconvene in January, 1980, and at that “session” adopted the three proposed amendments in question. After adopting these proposals, it recessed again, still not adjourning sine die. It is still in an “indefinite recess” or “indefinitely extended” until January, 1981. Was the “session” in January, 1980, a regular session, a lawful extension of a regular session? If it was not, the proposed amendments were not properly adopted because a legislature cannot enact legislation after the expiration of its session. State, ex rel Heck’s Discount Center, Inc. v. Winters, 147 W. Va. 861, 132 S.E. 2d 374 (1963). See also, Dillon v. King, 87 N.M. 79, 529 P. 2d 745 (1974).

The Arkansas Constitution provides only for biennial session of the General Assembly. Ark. CONST, art 5, § 5.

Section 5. Time of meeting — The General Assembly shall meet at the seat of government every two years on the first Tuesday after the second Monday in November [second Monday in January] until said time be altered by law.

The duration of such a session is controlled by Article 5, § 17, which reads:

Section 17. Duration of sessions. — The regular biennial session shall riot exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said General Assembly. . . .

A fair reading of the Constitution cannot mean that the General Assembly can legally extend a session indefinitely for no valid legislative purpose, nor indefinitely go into a recess so that it may later reconvene itself and conduct its business as though it were in a regular session.

On the other hand, there is no doubt, that by two-thirds vote of the members of the General Assembly, a regular session can be lawfully extended beyond the sixty days of a regular session. Ark. CONST, art 5, § 17. It is a question of fact as to whether such an act is lawful.

When all the relevant provisions of the Arkansas Constitution are read together, the Constitution prohibits the General Assembly from legally doing what it did in this case.

Article 5, § 17 says: “The regular biennial session shall not exceed sixty days in duration.” Article 5, § 5 provides only for a meeting of the General Assembly every two years. Article 6, § 19 gives the governor power to convene the General Assembly on extraordinary occasions. Those are the Constitutional provisions limiting the sessions of the General Assembly to one biennial 60-day session, unless lawfully extended. In Purcell v. Jones, supra, we said:

... It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301. The Constituttion is to be construed according to the sense of the terms used and the intention of its authors. Rankin v. Jones, 224 Ark. 1001, 278 S.W. 2d 646.

There is no doubt that the General Assembly sees its duty in these modern times as requiring it to be available at all times to handle the business of this state. But that belief cannot be realized by circumvention of Arkansas’ 1874 Constitution.

The General Assembly does a great deal of its work through its committees and the Legislative Council, which meet regularly throughout the year. With this general practice there is no legal quarrel. However, a session of the General Assembly is one essentially involving the function of considering and passing legislation; it necessarily involves the entire legislative branch of government, and in that regard the Constitution limits the meeting of the General Assembly to a regular biennial session that can only be extended to finish legislative work — passing on legislation.

The General Assembly found on April 20, 1979, in its resolution approving the indefinite recess, that it had completed its business. That resolution, Senate Concurrent Resolution 92, begins:

WHEREAS, the Seventy-Second General Assembly has completed its essential business-, . . . [Emphasis added.]

Thereafter, Resolution 92 approved Senate Concurrent Resolutions 91 which we have quoted almost in its entirety.

If we were to approve Senate Concurrent Resolution 91, and actions of the General Assembly in this case, on these facts, we would be holding that the General Assembly can extend itself indefinitely, meet at any and all times, monthly, biannually or annually for any and all reasons. The General Assembly simply does not have that power under the Arkansas Constitution; Arkansas’ Constitution contemplates the General Assembly will convene once every two years, meet for 60 days, or longer if necessary, but finish its buisness and go home. Only the executive branch of government is granted the authority to reconvene the General Assembly if it becomes necessary.

Also, too many of the provisions of the Constitution would become meaningless if the General Assembly could act as it proposes. For example, only the governor has the authority to call the General Assembly into a session after a regular session. That is an important constitutional power granted to the executive branch of the government. It would become meaningless if the General Assembly could meet any time it chose and call it a regular session. The same provision that authorizes the governor to convene a special session of the General Assembly does grant the General Assembly the authority to remain in session for no more than 15 days, after it has finished with the governor’s business. That is a grant of power to the General Assembly to check any abuse of power by the executive branch in calling a special session.

The appellee, and especially the intervenor, argue that Resolution 91 left open the question of a constitutional amendment regarding property taxation and, therefore, the General Assembly could properly consider arguments to the Constitution in its meeting in 1980. It is argued that such a subject was pending legislation at the time the General Assembly recessed and that it could be lawfully considered at a later time. It is true that both houses of the General Assembly had approved a proposed amendment to the Arkansas Constitution regarding property taxation. However, at the same time it is conceded there had been no joint approval of any other amendments. The usury and court jurisdiction amendments were first approved by both houses in January, 1980 and even the proposed amendment regarding property taxation, as it was finally approved in January, 1980, was a different proposal than that approved back during the regular session in 1979- A vague reference in Resolution 91 referring to any jointly approved proposed amendments is not enough to justify holding that the meeting of the General Assembly of 1980 was a lawful extension of a regular session. That is too small a nail upon which to hang such a large cloak. If Resolution 91 is anything, is is a claim, clearly staked out by the General Assembly that it can meet at any time and consider any subject matter that it deems proper. Such a posture, if approved, would strike a serious blow to the checks and balances that e-xist in Arkansas government, severely limiting the constitutional authority of the executive branch of government. Consequently, we cannot accept this argument in the light of all the other language in Resolution 91.

We do not mean to unduly limit the authority of the General Assembly to go into recess, adjourn or reconvene as it is necessary to finish its business. That authority is clear. And essentially the General Assembly decides — not we — whether it has finished its business and whether an extension of the regular session is required. But even a conceded power can be exercised in an unconstitutional manner. While a legislative declaration creates a strong presumption of legality, that presumption can be rebutted by objective facts that are inconsistent with such a declaration. Are there sufficient facts to' find that the General Assembly had a purpose in recessing for 20 months? We do not find evidence to support such a purpose. For example, in Senate Concurrent Resolution 14 the General Assembly determined the regular session had to be extended in order for it to finish its regular business. Then, rather than staying in the regular session, it was decided that the General Assembly would go into a recess for 20 months. What action could the General Assembly take in January, 1981? All pending business had been declared void except a reference to proposed constitutional amendments that may have passed both houses. Such proposed amendments could not have been taken up in 1981 because that is a time beyond the election which would ■decide the validity of such amendments. Consequently, what purpose could the General Assembly have had in recessing for 20 months? While Resolution 91 declared that it might be necessary to reconvene in May of 1979 and January, 1980, at the same time the May session could only be convened by order of the Speaker of the House of Representatives and the President pro tem of the Senate, and the January, 1980 session would be held unless those same officials declared the session unnecessary. On the one hand the General Assembly declares that it needs to meet, then it recesses for 20 months. On the other hand the General Assembly declares that it has finished its essential business, but now argues that it has pending business that it can consider at any time during the 20-month recess. Now it is argued that any constitutional amendments can be considered because reference was made to those that had passed both houses. All pending matters were voided, but now it is argued new subjects may be addressed. Such an argument can only be based on the broad lánguage in Resolution 91.

The intent of the General Assembly, gathered from all of the evidence, is that it did not legally recess or attempt to extend a regular session to finish its regular business. Most important, is the attempt by the General Assembly to recess for 20 months, reserving the power to call itself back at any time for any purpose. That is the concept, without any real purpose, that exceeds the constitutional power of the General Assembly to extend a regular session — the claim of the right to recess and reconvene for any reason the General Assembly later deems necessary. We can only conclude that the actions of the General Assembly in January, 1980, were not during a lawful extension of a regular session.

We do not have the question before us of whether it would have been lawful for the legislature to meet in May, 1979, as it proposed, and consider legislation or matters that were set out in detail in Resolution 91. The facts would support such action by the General Assembly. What we have before us is a meeting the next year called pursuant to the other language in Resolution 91-

In an affidavit, by the Speaker of the House, which is part of the record, it is stated that committees of the Seventy-Second General Assembly are actively engaged in handling legislative matters and this fact, as well as others, are evidence that the General Assembly had not completed its official business. Work through committees is not the same as work by the General Assembly in a session when all its members are present or authorized to be present.

When we review all the facts, we can only conclude that the regular session of the General Assembly of 1979 was not extended lawfully to 1980 as claimed by the appellee and the intervenor.

Finally, it was contemplated, with good cause, that proposals made by the General Assembly to change the Constitution would be proposed at a regular session. Time is an important factor. Those amendments must be published in newspapers at least six months in advance of the general election. Ark. Const, art 19, § 22.

We do not even imply that we have the authority to dictate to the General Assembly, the legislative branch of this state government, how it proceeds about its business. It can convene as it pleases. Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979). However, whether its acts are lawful is a matter for this court. That was decided by the United States Supreme Court in an opinion written by Chief Justice John Marshall in Marbury v. Madison, 1 Cranch 137 (1803).

The result of our views is that a majority of the Court, consisting of Justices George Rose Smith, Hickman, Purtle, and Mays, hold that the usury amendment and the jurisdiction amendment were not proposed at a regular session of the General Assembly and therefore should not be placed on the ballot. A different majority, consisting of the Chief Justice and Justices Holt, Purtle, and Stroud, hold that the property tax amendment was properly proposed and should be placed on the ballot. The decree of the trial court is therefore affirmed in part and reversed in part.

George Rose Smith and Mays, JJ. join in this opinion. Purtte, J., concurs in part and dissents in part. Fogieman, C.J., Holt and Stroud, JJ., dissent.