contained, shall be void." Id. § 29. However, because of the manner in which the majority has interpreted article 5, the holding clearly violates the above-cited article 2 provisions.
Fourth, after citing the 1874 constitution, the majority states, "Subsequently, in 1935, this court considered the issue of whether the legislature could waive the State's sovereign immunity. See Ark. Hwy. Comm'n v. Nelson Bros., 191 Ark. 629, 87 S.W.2d 394 (1935). This court stated, 'It is our settled conviction that the state cannot give its consent to the maintenance of an action against it.'" The majority implies that this was the first post-1874 case in which it considered the issue of sovereign immunity. However, when presented with this issue in 1932, this court allowed the suits to proceed since two justices believed the suits were not against the State and two believed the State could consent to be sued. See L. Scott Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial and Legislative Power, U. Ark. Little Rock L. Rev. 279 (1984). In Arkansas Highway Commission v. Dodge, the court explained:
It will be seen that out of the conflicting views of a majority of the several members of the court a very definite result has been reached; i.e., that in a proper case the highway commission may be sued when authority for the bringing of the suit may be found in the statute . . . we now hold that, in all cases where the statute authorizes a suit, it may be maintained against the highway commission whether it be thought to be a juristic person or whether section 20, art. 5, be merely declaratory of the general doctrine that the state may not be sued in her courts unless she has consented thereto.
186 Ark. 640, 133–34, 55 S.W.2d 71, 73 (1932), overruled in part by Ark. Hwy. Comm'n v. Nelson Bros., 191 Ark. 629, 87 S.W.2d 394 (1935). Thus, subsequent to the adoption of our current constitution, the doctrine of sovereign immunity has been interpreted at least three different ways.
16
