Andres v. First Ark. Development Finance Corp.

Paul Ward, Associate Justice, concurring.

I concur in tbe result reached by tbe majority but I do not agree with a vital portion of the reasoning by which that result as achieved. , .

First, however, let me state briefly my reasons for upholding Act No. 567 of 1957. I base it entirely on tbe language and reason given by this Court in tbe case of Halbert v. Helena, 226 Ark. 620 , 291 S. W. 2d 802 , where we said:

“Section 34 of Act 404 authorizes tbe State Board of Finance ‘in its discretion’ to purchase from local development corporations fifty per cent of tbe principal amount of tbe bond issue up to a certain amount. Tbe State is certainly not lending its credit to tbe local development corporation when it purchases bonds and receives the bonds . . . Whether tbe State Board of Finance invests tbe State’s surplus in one kind of boad or another is a matter for tbe Legislature to permit, and for the State Board of Finance to then decide in the exercise of its discretion. Certainly the Legislature can determine what kind of securities can be purchased by the State Board of Finance in its discretion . . .”

So it is plain that Act 567 purports here to authorize exactly what we approved in the cited case.

I am fearful, however, of certain language and reasoning found in the majority opinion. The majority opinion states that Act 567 “does not require” but “merely authorised” the State Board of Finance to purchase bonds. Thus the majority seem to say that no matter how unconstitutional any activity is, it becomes constitutional if the Legislature merely authorizes it to be done and does not require it to be done. A few illustrations will demonstrate the danger and fallacy of this reasoning. Our Constitution, Art. 2, Sec. 3 guarantees a trial by jury: Aft. 2, Sec. 16 prohibits imprisonment for debt; Art. 2, Sec. 26 prohibits a religious test for voting; Art. 5, Sec. 20 says the State shall not be made a party defendant ; Art. 14, Sec. 2 prohibits school money from being used for any other purpose, yet who would dare defend the constitutionality of an Act of the Legislature which permitted the violation of those guarantees? One of the best recognized rules of jurisprudence is to the effect that an Act must be judged by what it permits to be done.

The majority is confusing a constitutional question with a question of propriety. To illustrate: The State has constitutional authority to place its surplus funds in a bank for safe keeping until they are needed for operational purposes but an Act requiring it to keep them there would be void. In other words an act of the Legislature could not disrupt the governmental processes. So, what makes Act 567 constitutional is not the single word authorise but it is the character of the entire transaction which we approved in the Helena case.