text:
    ARKANSAS MOTOR CARRIERS ASSOCIATION, INC., and Donnie Hodges v. Raymond PRITCHETT, in his official capacity as Chairman of the Arkansas State Highway Commission; Ron Harrod, Rodney Slater, L.W. “Bill” Clark, and Bobby Hopper, in their official capacities as Commissioners of and for the Arkansas State Highway Commission; Maurice Smith, in his official capacity as Director of the Arkansas Highway and Transportation Department; Arkansas State Highway Commission; Arkansas Highway and Transportation Department; Bill Clinton, in his official capacity as Governor of the State of Arkansas; Jimmie Lou Fisher, in her official capacity as Treasurer of the State of Arkansas; Julia Hughes Jones, in her official capacity as Auditor of the State of Arkansas; Jim Pledger, in his official capacity as Acting Director of the Department of Finance and Administration; Tim Massanelli, Coordinator of House Legislative Services; and Hal Moody, Secretary of the Senate, Appellees, and Union Pacific Railroad Company, Intervenor
    90-99
    798 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990
    [Rehearing denied December 17, 1990.]

      Kemp, Duckett, Hopkins & Spradley, for appellants.

      John Theis, Philip Raia, Robert L. Jones, William Keadle, Cora Gentry, David Kaufman, Malcolm Bobo, and Beth B. Carson, by: Rick L. Pruett, for appellee Jim Pledger, Director, Arkansas Department of Finance and Administration.

      Robert L. Wilson, Chief Counsel; Tom G. Lorenzo; and Treeca J. Dyer, AHTD Legal Division, for separate Highway appellees.

      Friday, Eldredge & Clark, by: Herschel H. Friday, Michael G. Thompson, and Robert S. Shafer, for intervenorappellee Union Pacific Railroad Company.

      Hays, J., not participating.

   Herman L. Hamilton, Jr., Special Justice.

Act 959 of 1989 made various appropriations for the Arkansas Highway and Transportation Department (AHTD) and, in Section 23, abolished the Transportation Safety Agency (TSA) and the Transportation Regulatory Board (TRB) and transferred their duties to the AHTD and the Arkansas Highway Commission (AHC). Appellants filed suit to prohibit disbursements and to enjoin other actions under Act 959.

Prior to any determination by the trial court, in Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989), we invalidated all appropriation acts of the 1989 Regular Session of the General Assembly, including Act 959.

The Governor then issued a call for an Extraordinary Session of the General Assembly and included item 151, as follows:

“To make an appropriation for Personal Services and Operating Expenses of the Highway and Transportation Department for the biennial period ending June 30,1991,, as enacted in Act 959 of 1989.”

During the Extraordinary Session, the General Assembly enacted Act 67 of the First Extraordinary Session of 1989, a verbatim reenactment of Act 959, including section 23, and also Act 153 of the First Extraordinary Session of 1989. In Section 1, Act 153 announced that its purposes were to reenact that portion of Act 959 relating to the abolishment of TSA and TRB and to clarify provisions relating to transfer of their duties and functions to AHC.

Appellants then amended their complaint, challenging Acts 67 and 153 on various constitutional grounds. Issues were joined and all parties filed motions for summary judgment. The trial court denied Appellants’ motion and granted Appellees’ motion for summary judgment. That decision is affirmed.

For reversal, Appellants rely on six points alleging violations of the Arkansas Constitution of 1874. They contend: (1) Acts 67 and 153 violate the “separation of powers” required by Article 4, §§ 1 and 2; (2) Act 67 is an appropriation bill, embracing more than one subject, violating Article 5, § 30; (3) Act 153 was not within call item 151, violating Article 6, § 19; (4) Act 153 authorizes use of tax revenues for purposes unrelated to the purpose for which levied, violating Article 16, § 11; (5) Section 23 of Acts 959 and 67 amends existing law by reference only, violating Article 5, § 23; and (6) Section 23 of Act 959 was added by amendment prior to passage and is not germane to the subject of the Act, violating Article 5, § 21.

I. SEPARATION OF POWERS

Appellants first argue that TSA and TRB, created by legislative acts, are arms of the legislature and that AHC and AHTD are divisions of the executive branch of government. Appellants contend that for the executive branch to exercise duties and powers of TSA and TRB violates the doctrine of separation of powers and that legislative delegation of powers by Acts 959, 67, and 153 improperly invades the separated departments of government.

Article 4, in §§ 1 and 2, of the Arkansas Constitution of 1874, provides for three distinct departments, legislative, executive, and judicial, and prohibits a person or collection of persons of one department from exercising any powers belonging to either of the others.

In Parkin Printing & Stationary Co. v. Arkansas Printing & Lithographing Co., 234 Ark. 697, 354 S.W.2d 560 (1962), we characterized AHC as a subdivision of the executive department. The point of that decision was to prevent AHC, as well as other governmental agencies, from being free of constraints upon bidding and insider business dealings. It is more proper to characterize AHC as an agency of government, whose total duties and responsibilities may not all belong to any one department, than label it an arm of either the executive branch or the legislative branch.

The real issue deals with a review of the powers of governmental agencies and boards, not necessarily with their characterization as a branch of either of the departments of government. Administrative agencies may possess a combination of powers from the coordinate branches without violating the separation of powers principle. 1 Am. Jur. 2d Administrative Law §§ 76-77 (1962).

There are agencies which possess only legislative character granted by the General Assembly. We recently held the legislature can create an agency which is an arm of and subject to review only by the legislature. Fireman’s Ins. Co. v. Arkansas State Claims Commission, 301 Ark. 451, 784 S.W.2d 771 (1990). That decision, however, does not mean the General Assembly cannot delegate powers and duties to other types of agencies.

TSA and TRB were creatures of legislative action and exercised some functions legislative in nature. The delegation of powers to those agencies by the General Assembly was also a legislative act. Nevertheless, the administrative performance of those duties granted by the legislature is not the determinant. The character of the function does not necessarily establish the character of the agency as a branch of either department. It is the power of the legislature to control the agency, by its ability to grant powers and authorities, or to withdraw them, which is the determinant in this case. What the legislature could grant, it could also withdraw. Helena Water Co. v. Helena, 140 Ark. 597, 216 S.W.26 (1919). That power to control protects the legislative interest and insures the separation of powers.

Transferring ministerial duties and powers of TSA and TRB to a Constitutional body, AHC, was also a legislative act which does not violate the requirement of separation of powers. The General Assembly may enlarge the powers granted or may subsequently modify or remove them in favor of another agency. Amendment 42, § 1, to the Arkansas Constitution of 1874, by its own language recognizes that additional powers and duties may be provided for the State Highway Commission.

Without departmentalizing the entire character of AHC and AHTD, we hold those agencies have legislative powers provided by Acts 67 and 153. The General Assembly exercised its authority responsibly in enacting those laws. It retains control through the ability to remove or modify the powers and authorities granted. Therefore, Acts 67 and 153 do not violate the separation of powers required by Article 4, §§ 1 and 2.

II. APPROPRIATION BILL EMBRACING MORE THAN ONE SUBJECT

Appellants next argue that Act 67 violates Article 5, § 30, of our Constitution, in that it is an appropriations bill that embraces more than one subject.

That constitutional provision requires the General Appropriations Bill embrace nothing but ordinary expenses of the executive, legislative, and judicial departments and that all other appropriations shall be by separate bills, each embracing but one subject. Ark. Const. of 1874, Article 5, § 30. The object of the Article was to prevent omnibus bills, to prevent separate and unrelated appropriations in a single bill, and to prevent pork barrel legislation. Cottrell v. Faubus, 233 Ark. 721, 347 S.W.2d 52 (1961); Perkins v. DuVal, 31 Ark. 236 (1876).

Act 67, in its appropriations provisions, only deals with one subject, funding for personal services and operating expenses of AHTD. Act 67 also contains provisions establishing salary limits, numbers of authorized personnel, ovértime pay, uniform and tool allowance, and moving expenses, which are not merely appropriations in nature, but relate to the same subject, administration of the AHTD. The Constitution does not prohibit the addition of substantive provisions establishing powers and duties for AHC and AHTD together with appropriations, since all relate to but one subject, the operations of AHC and AHTD. The addition of powers and duties of AHTD, as successor to TSA and TRB, in Section 23, does not deal with any appropriation, but is within the same subject, i.e., administration of the AHTD. We hold this does not violate our Constitution.

III. ACT 153 OUTSIDE GOVERNOR’S CALL

Appellants’ third argument is that the General Assembly, by providing for powers and duties of AHC and AHTD in Act 153, exceeded call item 151.

The Governor’s call was, among other things, in item 151, as follows:

“To make an appropriation for personal services and operating expenses of the Highway and Transportation Department for the biennial period ending June 30,1991, as enacted in Act 959 of 1989.”

We have held the legislature may consider not only the legislation specifically mentioned, but such other as may incidentally arise out of the call and any necessary detail in accomplishing the purpose of the call. The legislature is given a wide range of latitude in deciding what comes within the call. Pope v. Oliver, 196 Ark. 394, 117 S.W.2d 1072 (1938).

Act 67 of the Extraordinary Session was a verbatim reenactment of Act 959 of 1989, including Section 23. The General Assembly, having adopted Act 959, was on notice and aware that Section 23, dealing with powers and duties of AHC and AHTD, was a part of the call. Under these circumstances, the language of call item 151 “as enacted by Act 959,” when given a practical, common sense construction, includes Section 23 of Act 67, of which Act 153 is simply a further enactment.

Therefore, although Act 153 may have been merely a duplication of Section 23 of Act 67, it came within the purview of call item 151. But see Sims v. Weldon, 165 Ark. 13, 263 S.W. 42 (1924).

IV. ACT 153 PERMITS USE OF TAX FOR PURPOSES UNRELATED TO LEVY

Appellants argue that Section 2 of Act 153 authorizes expenditures of AHTD funds to fulfill duties of TSA and TRB, and this violates Article 16, § 1, of our Constitution.

Ark. Code Ann. § 19-6-405 (1987) provides that “highway funds” are to be used as specified in Amendment 42 to our Constitution and as specified by other laws which prescribe the duties of AHC and AHTD. Act 67, in Section 23, prescribes additional powers and duties for AHTD, as did Act 959. Act 153 provides for those same powers and duties.

The legislature was free to add the former duties of TSA and TRB to those of AHTD, by the Acts in question. Ark. Const. of 1874, Article 17, § 10; Helena Water Co. v. Helena, supra. Therefore, funds appropriated for personnel and expenses of AHTD are related to the purpose of the levy and do not violate Article 16, § 1 of our Constitution.

V. AMENDMENT OF EXISTING LAW BY REFERENCE ONLY

Appellants also argue that Act 67 amends existing law by reference only and violates Article 5, § 23 of our Constitution.

Under Section 23 of Act 67, it is provided that the Chairman of AHC become a member of the commission to make reciprocal license agreements with other states. This does not amend the substance of Ark. Code Ann. § 27-14-501 (1987), but merely changes the identity of an officeholder charged with certain administrative responsibilities. There is no requirement that an amendatory statute be so self-sufficient that no examination of the act being amended is needed for a complete understanding of the changes being made. Hall v. Ragland, 276 Ark. 350, 635 S.W.2d 228 (1982).

This provision does not revive, amend, or extend a law by title reference only, and does not violate Article 5, § 23, of our Constitution.

VI. SECTION 23 OF ACT 959 WAS ADDED BY AMENDMENT, NOT GERMANE TO THE SUBJECT OF THE ACT

Lastly, appellants contend that the addition of Section 23 to Act 959 by an amendment, not germane to the subject of the legislation, prior to its passage, violates Article 5, § 21, of our Constitution. Since we held Act 959 unconstitutional in its entirety, it is unnecessary to address this issue. Fisher v. Peronni, supra.

The findings of the trial court are not clearly erroneous as to any issue and an extended opinion is unnecessary. Henslee v. Madison Guaranty Savings & Loan Ass’n, 297 Ark. 183, 760 S.W.2d 842 (1989).

Affirmed.

Leon Reed, Special Justice, joins in this opinion.

Hays and Turner, JJ., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clarence HILL v. STATE of Arkansas
    CR 90-192
    799 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., John D. Harris, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Clarence Jerome Hill was convicted in the Circuit Court of Jackson County on March 27, 1990, of possession of cocaine, possession of marijuana, possession of drug paraphernalia, and the offense of felon in possession of a firearm. He was sentenced to four terms of six years imprisonment. The terms for marijuana possession, possession of drug paraphernalia and felon in possession of a firearm were ordered served concurrently with each other but consecutive to the term imposed for cocaine possession. Appellant’s retained attorney B. Richard Allen filed a timely notice of appeal in April. In July, appellant filed a pro se motion seeking to be declared indigent and requesting appointment of counsel. The trial court denied the motion, and appellant brings this appeal. B. Richard Allen has also filed a motion in this court seeking to be relieved as attorney-of-record for the appellant.

The partial record lodged by the appellant does not contain the record of the hearing held on the question of whether appellant was indigent for the purposes of appeal. Since this record is necessary to our review of the trial court’s findings that appellant was not indigent, a writ of certioari will issue, returnable in thirty days, to bring up the record of the indigency hearing. We will reserve the decision on whether the appellant or the state must assume the cost of the record of the indigency hearing until a final decision has been made by this court on the appeal of the order denying indigent status.

Writ issued.


author: Jack Holt, Jr., Chief Justice.

text:
    Ray PRYOR and Stefanie Pryor v. HOT SPRING COUNTY CHANCERY COURT and Honorable Robert W. Garrett, Chancellor; and George Raper and Mildred Raper
    90-141
    799 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      G. Christopher Walthall, for petitioner.

      Steve Clark, Att’y Gen., Thomas S. Gay, Deputy Att’y Gen., for respondent Hot Spring County Chancery Court and Chancellor Robert W. Garrett.

      George Hopkins, for respondent George and Mildred Raper.
   Jack Holt, Jr., Chief Justice.

This case comes to us on petition for a writ of prohibition. Petitioners, Ray and Stefanie Pryor (Pryors) seek to prevent the Chancery Court of Hot Spring County from hearing a cause of action they claim is barred by res judicata and lack of subject matter jurisdiction. We must deny the petition.

This case has a long history of litigation. Initially, respondents, George and Mildred Raper (Rapers), were awarded a strip of land located in Hot Spring County by adverse possession. The land, awarded by the circuit court of Saline County, overlapped the property line separating the Rapers from the Pryors. The parties stipulated that the current line separating the two properties was the same as the Hot Spring/Saline County and section line, upon which a fence had been erected by the Pryors. The circuit court found, however, that the Rapers had adversely acquired property south of the Pryors’ fence which included a drive way and part of a garden plot. No exact dimensions of the adversely held property were offered at trial and the court ordered the dimensions to be determined by a registered land surveyor. The original order was twice amended to include the land description; however, both orders were erroneous and described land north, rather the south, of the original property line.

The Pryors appealed from the circuit court’s orders to the Arkansas Court of Appeals, which affirmed. The Pryors’ petition for rehearing, based on the appellate court’s failure to take corrective action on the erroneous land description in the supplemental orders, was denied. Our court denied the Pryors’ petition for certiorari.

Claiming that a cloud existed on their title, the Pryors then filed a petition to Quiet Title in the Hot Spring County Chancery Court. The chancery court dismissed the cause of action, agreeing with the Rapers that the matter was barred by res judicata.

The Pryors returned to the circuit court of Saline County and petitioned it to correct the cloud created by its misdescription. For the first time, the Rapers conceded that the orders contained inaccurate descriptions of the property. The circuit court recognized the error in the supplemental orders but determined that it was without jurisdiction to redetermine or restructure the orders without agreement of both parties.

During this time frame, the Rapers were still using part of the strip of property as their driveway. The Pryors placed boulders on the property to prevent the Rapers from continuing their use of the driveway. As a result, the Rapers filed the present suit in the Hot Spring County Chancery Court requesting correction of the legal description of the property, an injunction requiring the Pryors to restore the driveway to its original condition, and damages in the amount of $1,000. The Pryors’ motion to dismiss the petition was denied by the chancery court; hence this petition for writ of prohibition.

We have said many times that “prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction.” Leach v. State, 303 Ark. 309, 312, 796 S.W.2d 837 (1990) (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)).

The question of res judicata, the Pryors’ first argument in support of their petition, is an an affirmative defense to be raised in the trial court and does not present a question of jurisdiction. See ARCP Rule 8(c); Ark. State. Hwy. Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988); Tucker Enterprises Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). We stated in Tucker, supra, that “it is not the office of the writ of prohibition to test the correctness of the trial court’s ruling on the defense of res judicata.” We further explained that:

If Prohibition may be used to test the sufficiency of a defense, there is no reason why it could not also be used to review the trial court’s action in overruling a demurrer to the complaint. Of course that is not the office of the writ. Petitioner’s question must be raised by appeal. . . .

Id. (quoting Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S.W.2d 3 (1952)). The Pryors’ avenue for challenging the chancery court’s decision that res judicata does not bar the suit, lies on appeal, not by writ.

We arrive at the same conclusion concerning the Pryors’ second contention that the chancery court lacks jurisdiction. Although it is well settled that this court has authority to prevent a trial court from proceeding in a matter wholly outside its jurisdiction, that is not the situation here. See Springdale School Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).

The Rapers ask for removal of the cloud on their title by correcting the misdescription of the property and for an injunction requiring the removal of the boulders, both forms of equitable relief appropriate under chancery jurisdiction. The issue of damages is then properly assumed under our long standing rule that once a chancery court acquires jurisdiction for one purpose, it may decide all other issues. See First Arkansas Leasing Corp. v. Munson, 282 Ark. 359, 668 S.W.2d 543 (1984). The Pryors argue, however, that equitable jurisdiction is- not proper because the Rapers are not currently in possession of the property and therefore the action is, instead, an action for ejectment, a matter solely within the jurisdiction of the circuit court. See Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987).

For purposes of a writ of prohibition, jurisdiction is tested on the pleadings and not the proof, and we do not decide if the allegations are true, only if the lower court is wholly without jurisdiction to hear them. Springdale v. Jameson, supra.

Here, the Rapers alleged, in their petition to the chancery court, that they were in possession of the disputed land and asked for equitable relief. The pleadings thus place the issue of possession in dispute and we have often held that no writ can be issued where there are contested facts. See Ellison v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986); Statewide Health v. Circuit Court of Pulaski County, 287 Ark. 84, 695 S.W.2d 729 (1985). We cannot say the Hot Spring Chancery Court was wholly without jurisdiction to hear this matter.

Petition for Writ of Prohibition denied.


author: Robert H. Dudley, Justice.

text:
    Willie B. GILMER v. Don MASSEY, Records Office Supervisor, et al.
    90-148
    799 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      Willie B. Gilmer, pro se.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Willie B. Gilmer, a prison inmate, filed suit for declaratory judgment and writ of mandamus challenging the parole eligibility date set for him by the appellee, Don Massey, Records Office Supervisor. The trial court denied appellant’s requested relief. We affirm.

On March 15,1979, appellant was convicted of interfering with a police officer and was sentenced to a term of five years in the Arkansas Department of Corrections. He was paroled in January 1980. While still on parole, on March 22, 1981, appellant was again arrested and charged with aggravated robbery, burglary, and theft of property. His parole was revoked, and he was subsequently found guilty of each of the charges. He was sentenced to fifty (50) years on the aggravated robbery charge, twenty (20) years on the burglary charge, and ten (10) years on the theft of property charge. The sentences were ordered to be served concurrent to each other, but consecutive to the time appellant was already serving on his original conviction. In February 1989, appellant’s parole eligibility date was determined to be past due. However, that eligibility date was subsequently determined to be erroneous, and a new eligibility date was set for a later time. It is the latter date which appellant challenges.

Appellant first argues that he should have been classified as a first offender rather than a second offender under the reasoning of Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984). The argument has no merit.

We addressed an identical argument in Michalek v. Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1987), where we explained that Bosnick is not applicable to this type situation. That is, in Bosnick a new parole eligibility act was enacted between the defendant’s first and second convictions, and the question was which act would control the cumulative sentence. We explained that under those circumstances the parole eligibility statute governing the original sentence should control the cumulative sentence. Here, however, as in Michalek, the parole eligibility laws have not changed. Rather, appellant’s status has changed from first offender to second offender as a result of his commission of subsequent offenses. See Ark. Code Ann. § 16-93-603(2) (1987).

Appellant also argues that application of the parole eligibility statute in this fashion denies him equal protection because it has never been applied in that fashion before. There is absolutely no foundation in the record for arguing a violation of equal protection. Further, the Michalek case, supra, belies appellant’s argument that the statute has never before been applied in that fashion.

Appellant next argues that requiring him to serve one-half 0/2) of his original sentence, on which he was only required to serve one-third Qf) at the time of the commission of the original offense, violates the prohibition against ex post facto laws. The short answer to the argument is that there is no new law after the fact. All proceedings are under the same act. The increase in the time appellant must serve before he will be eligible for parole resulted from his commission of subsequent offenses. It has nothing to do with any change in legislation.

Next, appellant argues that the trial court denied him due process of law by failing to accord him the procedures mandated by Ark. Code Ann. § 16-115-104 (1987). Even if the statutory procedure for mandamus was not precisely followed, that fact will not void a conviction. See Halfacre v. State, 292 Ark. 329, 731 S.W.2d 182 (1987). Neither will it shorten the length of time appellant must serve before being eligible for parole.

Ark. Code Ann. § 16-115-104 (1987) provides:

(b) Upon the written application of the petitioner or any other interested party, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.

Appellant specifically requested a hearing pursuant to the above statute by motion filed June 7,1989. A hearing was not held in the next seven days. Clearly, the trial court did not follow the procedure mandated by the statute. As in the case of illegal arrests, however, that fact will not void appellant’s conviction, and neither will it shorten the length of time that he must serve before being eligible for parole. In short, the trial court’s failure to accord the procedure mandated by the statute was error, but that error does not entitle appellant to the remedy requested.

Finally, appellant raises another equal protection argument with respect to the trial court’s failure to accord the procedure mandated by Ark. Code Ann. § 16-115-104 (1987). The argument is raised for the first time on appeal, and there is no evidence of record to support it. In the absence of a record showing that the matter was raised below and that the trial judge ruled on it, the matter will not be considered on appeal. Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990).

Affirmed.


author: Steele Hays, Justice. Steele Hays, Associate Justice.

text:
    Arthur Lee HUDSON v. STATE of Arkansas
    CR 90-125
    799 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990
    [Rehearing denied December 21, 1990]
    [Supplemental Opinion on Denial of Rehearing January 14, 1991.]

      Bill R. Holloway, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

      Corbin and Brown, JJ., not participating.

   Steele Hays, Justice.

Appellant Arthur Lee Hudson was charged on June 23,1988, with two counts of delivery of cocaine, a controlled substance, (counts I and II) and one count of possession with intent to deliver (count III). Hudson’s brother, Robert Earl Hudson, was also charged on counts II and III.

The cases were set for trial on February 21,1989. On that same date Arthur Lee Hudson moved for a continuance on counts II and III on the ground that Robert Earl Hudson was a material witness to his defense and had raised the issue of mental capacity in his own defense, and that Robert Earl Hudson’s competence should be determined before Arthur Lee Hudson could be tried. Arthur Lee Hudson also moved that the charges against Robert Earl Hudson be severed. Both motions were granted.

Counts II and III were later set for trial on July 18,1989, and on July 17 Hudson again moved for a continuance, alleging ill health and an inability to appear for trial. The trial was reset for August 29. On August 28 Hudson moved to dismiss for denial of a speedy trial pursuant to A.R.Cr.P. Rule 28.1, based solely on the trial court’s failure to enter an order or docket entry as required by A.R.Cr.P. Rule 28.3(i). That motion was denied and since Hudson had not appeared on August 29, the case was again reset to October 24, when it was finally tried, resulting in a verdict of guilty with a sentence of thirty years on each count, plus a fine of $25,000.

On appeal, Arthur Lee Hudson argues three points for reversal: He was denied a speedy trial; a motion for a directed verdict as to count III based on insufficient evidence should have been granted; and a motion for a psychiatric examination should have been granted. Finding no error, we affirm the judgment entered on the convictions.

Addressing first the issue of speedy trial, the state concedes, as it must, that the trial court failed to follow the explicit requirement of A.R.Cr.P. Rule 28.3(i):

All excluded periods shall be set forth by the court in a written order or docket entry. The number of days of the excluded period or periods shall be added to the number of months applicable to the defendant as set forth in Rule 28.1(a), (b) and (c) to determine the limitations and consequences applicable to the defendant. [Amended by Per Curiam June 30,1980, effective July 1,1980; amended by Per Curiam June 8, 1981.]

Once again we must point out that a written order or docket entry is obligatory under the plain wording of the rule. However, the record itself demonstrates that the delays were attributable to the accused and were memorialized in the proceedings at the time of occurrence. Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989). The holding of those cases is based on the familiar principle that a litigant may not agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). To illustrate, at the February 21 hearing, after the motion for a continuance had been granted and after defense counsel had argued for a severance, the following dialogue occurred (quoting from the Supplemental Abstract):

TRIAL COURT: I am going to grant the motion to sever offenses, count one from counts two and three. I will also grant the motion to continue counts two and three as to Arthur Lee Hudson. I think that this is the only way that is completely fair under all of the circumstances, now that we know what Robert Earl Hudson’s situation is. So, today, the State will only be permitted to try Arthur Lee Hudson on count one. (T. 120)
* * *
PROSECUTING ATTORNEY: Your Honor, I want to make sure that the State is protected on speedy trial on counts two and three.
TRIAL COURT: You are. Let me make sure that we understand ourselves on this. Defense counsel, for purposes of the continuance and exclusion period, you are asking for a continuance, as I understand it, until a final determination has been made on Robert Earl Hudson’s mental status and his competency with regard to trial?
DEFENSE COUNSEL: Yes, sir.
TRIAL COURT: Very well. Then I will exclude the time for speedy trial purposes on counts two and three as to Arthur Lee Hudson from today when I granted the motion until such time as we are notified of Robert Earl Hudson’s mental status and a reasonable period for me to reset counts two and three on Arthur Lee Hudson. Defense counsel, is there anything else for Arthur Lee Hudson?
DEFENSE COUNSEL: No, sir. (T. 122, 123)

When the case was rescheduled for trial for the week of July 18, appellant did not appear, again seeking a continuance, this time on the basis of ill health. The trial was rescheduled to August 29, a period which the appellant concedes is excludable. In short, the delay in the trial of this case beyond the time allowed under A.R.Cr.P. Rule 28.1 was at the behest of the appellant and under the rationale of the Key and Kennedy cases are excludable periods.

The remaining two contentions require only brief comment. The motion for a directed verdict is not abstracted and need not be addressed. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985).

On August 24, 1989, appellant moved for a psychiatric examination which the court denied. In sustaining the trial court, we need look no further than the applicable statute, Ark. Code Ann. § 5-2-305 (1987):

5-2-305. Psychiatric Examination of Defendant.
(a) Whenever a defendant charged in circuit court:
(1) Files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause; or
(2) Files notice that he will put in issue his fitness to proceed, or there is reason to doubt his fitness to proceed, the court, subject to the provisions of §§ 5-2-304 and § 5-2-311 shall immediately suspend all further proceedings in the prosecution. If a trial jury has been impaneled, court may retain the jury or declare a mistrial and discharge the jury. A discharge of the trial jury shall not be a bar to further prosecution.

Neither notice contemplated by the statute was filed by the appellant and, hence, it was not error for the trial court to deny his motion.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JANUARY 14, 1991

801 S.W.2d 48

Criminal law — defense of mental disease or defect — no REASON TO BELIEVE MENTAL DISEASE WOULD BECOME AN ISSUE. — There was nothing to support the appellant’s position that a psychiatric examination was warranted except the statements of defense counsel that appellant did not appreciate the seriousness of the charges against him, which counsel attributed to the fact that appellant had only a third grade education and had an unspecified medical problem which required medication, and the appellate court found that these assertions did not per se dictate a reversal of the trial court’s finding that there was no sufficient basis to believe that mental disease or defect would become an issue.

Petition for Rehearing; denied.

Bill R. Holloway, for appellant.

Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

Steele Hays, Associate Justice.

In our opinion of November 19,1990, affirming the judgment entered pursuant to appellant’s conviction on two counts involving controlled substances, we addressed three assignments of error, one of which alleged that the trial court should have granted a motion for a psychiatric examination of the appellant. Citing Ark. Code Ann. § 5-2-305 (1987),werejected that contention, observing only that appellant had failed to file notice that he intended to rely upon the defense of mental disease or defect.

By petition for rehearing appellant correctly points out that § 5-2-305 includes an alternative provision, irrespective of such notice, that if there is reason to believe mental disease or defect will become an issue, then the trial court shall immediately suspend all further proceedings and order such psychiatric examination or examinations as may be warranted.

We concede that our opinion failed to address the substantive argument advanced by the appellant. Accordingly, we have reviewed the issue to determine whether the trial court’s finding (that there was no sufficient basis to believe that mental disease or defect would become an issue) was clearly erroneous. The burden rested on the appellant [Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979)], and we find nothing in support of his position except the statements of defense counsel that appellant did not appreciate the seriousness of the charges against him, which counsel attributed to the fact that appellant had only a third grade education and had an unspecified medical problem which required medication. Accepting these assertions at face value, they do not per se dictate a reversal of the trial court’s express finding to the effect, “There’s just nothing in the record that the court can get its hands on to show even a reasonable suspicion, much less a probable cause, to order [a psychiatric examination].”

Rehearing denied.

       Count I was disposed of on a plea of guilty on February 21, 1989.


author: Steele Hays, Justice.

text:
    Joe Paul NEWMAN and Lorene C. Newman v. CRAWFORD CONSTRUCTION COMPANY
    90-46
    799 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990
    [Rehearing denied December 17, 1990.]

      Sexton Law Firm, P.A., by: Jeanne Ann Whitmire and Sam Sexton III, for appellants.

      Warner and Smith, by: G. Alan Wooten, for appellee.

      Price, J., not participating.

   Steele Hays, Justice.

In this personal injury case the jury returned a verdict for the defendant, Crawford Construction Company. The plaintiffs, Joe Paul and Lorene Newman, have appealed. We find no error.

Joe Paul Newman is a journeyman electrician who sustained a serious injury while working for Thomas Electric Company, a subcontractor of Crawford Construction Company. Crawford Construction was engaged in the renovation of a four story building in Ft. Smith. The building was equipped with a freight elevator requiring manual operation. Greg Crawford, fourteen year old son of the president of Crawford Construction Company, was hired to operate the elevator which required pushing a lever forward to ascend and backward to descend.

The incident which precipitated the injury is the subject of some dispute. Joe Paul Newman testified that he had gathered some tools together to use on another floor and called for the elevator. When it came he raised the door and loaded the tools at the rear of the elevator. He said he reached up to pull down the elevator door and as he did so Greg Crawford grabbed him unexpectedly from the side. He immediately went to the floor with Greg on top of him, landing in a sitting position and causing a compound fracture to one ankle. Newman denied that he and Greg had ever engaged in any sort of horseplay or arm wrestling, though he testified that Greg pestered the workmen a lot and “aggravated you all the time.”

Greg Crawford’s testimony was that he was waiting for someone to call for the elevator when Mr. Newman came around the corner and he (Greg) walked a few feet out of the elevator because, “I was used to playing with him. We grabbed arms and I was walking backward toward the elevator. I grabbed Joe Paul Newman. He had a pipe bender in his other hand. He moved like we were arm wrestling. I was pushing one way and he was pushing the other way. We were stepping over a crack getting into the elevator and Mr. Newman fell. I let him go; I did not pull him to the ground. I did not jerk him before he started to fall. He did not jerk me. He was then sitting on one foot and told me that it was broken. Mr. Newman was all the way in the elevator and tripped on the crack. When he started to fall, I just let go of his hand. I never fell on the ground.”

Greg Crawford said that he and Mr. Newman had arm wrestled once or twice and kidded each other, that he and the workers would kid each other and that the foreman had told him not to engage in horseplay on the job.

Appellants asked the trial court to instruct the jury, pursuant to the Occupational Safety and Health Act of 1970, that

There were in force in the United States of America at the time of the occurrence one statute and two regulations which provided:
First: Each employer shall furnish to each of his employees employment in a place of employment which is free from recognized hazards that cause or are likely to cause death or serious physical harm to employees:
Second: An employer shall permit only those employees qualified by training or experience to operate equipment and machinery; and
Third: The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
A violation of one or more of these statutes or regulations, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

The instruction was refused. Appellants then proffered the instruction with the first paragraph deleted and when that too was refused the instruction was again requested with the first and second paragraphs deleted. The trial court again rejected the instruction and these refusals are designated as error. We think the instructions were properly refused.

When instructions are requested which do not conform to the Arkansas Model Jury Instructions (AMI) they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). A trial court need not give an instruction which needs explanation, modification, or qualification. Pineview Farms Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Nor is a trial judge required to give repetitious or redundant instructions. Hooper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983). If the model instructions given to the jury cover the matters embraced in the requested instruction, it is not error to refuse such instruction. Pineview Farms, supra; James v. Bill C. Harris Construction Co., 297 Ark. 435, 736 S.W.2d 640 (1989); Dena Construction Co. v. Burlington N.R.R., 297 Ark. 547, 764 S.W.2d 419 (1989).

The requested instruction in Dena, supra, was analogous to that requested here. In a railroad crossing case, the following instruction was requested and refused:

A railroad is under a duty properly to construct and maintain crossings over all public highways on the line of its road in such manner that the crossing is safe and convenient to travelers so far as it can do so without interfering with the safe operation of trains.

The opinion suggests that even if legally correct, the substance of the instruction was included in another instruction that both the railroad and the driver of the vehicle had a duty “to use ordinary care for the safety of their own property and the property of others.” Similarly, in this case, we believe appellants’ proffered instructions were adequately covered by the general negligence instructions that were given:

It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.
and further,
At the time of the occurrence Greg Crawford and Crawford Construction Company were employer and employee. Therefore, any negligence on the part of Greg Crawford is charged to Crawford Construction Company,
and
An employer must use ordinary care to select and employee who is competent to perform the work for which he is employed. If an employer knows or reasonably should know that an employee is incompetent in some manner and another person sustains injuries proximately caused by the negligent conduct of the employee arising out of the characteristic which renders him incompetent to perform the work, then the employer’s failure to use ordinary care in the selection of the employee would be a proximate cause of the injuries.

Moreover, the instruction included at least two provisions that were abstract to the evidence presented in the case. There was no proof whatever that the injury to Joe Paul Newman was the result of Greg Crawford’s operation of the elevator, or that the injury resulted from a failure by the personnel of Crawford Construction to instruct Greg Crawford not to engage in horseplay on the job. Indeed, there was undisputed proof to the contrary. Thus in each of the forms in which the instruction was presented, it contained elements that were not relevant to the case. That being so, the trial court did not err in refusing to give the instruction. As stated in Riddell & McGrow v. Little, Adm’x, 253 Ark. 686, 488 S.W.2d 34 (1972), “[Instructions should be based on the evidence in the case, and instructions stating only abstract legal propositions or submitting matters on which there is no evidence should not be given.”

Appellants also assign error to the giving of AMI 304:

When I use the words “ordinary care” with respect to the minor Greg Crawford, I mean that degree of care which a reasonably careful minor of his age and intelligence would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful minor would act under those circumstances.”

The instruction was given over an objection to the trial court that Greg Crawford was held by law to the adult standard of care “because the activity involved in this case was an activity that a minor has to exercise as an adult; if it’s an ultrahazardous activity, it has to be exercised as an adult would exercise it. . . ,” On appeal, appellants contend that Greg Crawford should be held to an adult standard of care in the operation of the elevator. But as we have already noted, there was no proof connecting the injury to the manner or method by which Greg Crawford operated the elevator, nor anything connected with the incident which could be aptly characterized as “ultrahazardous.” Assuming, without deciding, that the injury occurred as a result of the operation of the elevator, it might well be that the instruction would be appropriate, but, as we have seen, the proof was to the contrary.

When a minor is performing or participating in an activity regulated by a regulation or statute which does not differentiate between the standard of care expected of the participant, whether a minor or an adult, then the minor is held to the same standard of care as an adult when involved in the activity. We have stated the rule as follows: In order for a minor to be held to an adult standard of care, he must be engaging in an activity that is dangerous to others and normally engaged in only by adults. Purtle v. Shelton, 251 Ark. 519, 474 S.W.2d 123 (1971).

If it may be inferred from the argument that appellee was negligent simply by assigning a fourteen year old to a construction site, that element of negligence was adequately covered by the instructions as given.

Finally, appellants object to the refusal of the following instruction:

You are instructed that a general contractor owes a duty to employees of a subcontractor to exercise ordinary care. A general contractor further owes a duty to employees of a subcontractor to supply such employees with safe working places if the providing of such work place has been expressly or implicitly assumed by the general contractor. A breach of this duty on the part of the general contractor is negligence on the part of the general contractor.

There was no error in refusing to give this instruction. If the standard instructions given to the jury cover the matters embraced in a requested instruction, as in this case, it is not error to refuse the instruction. A trial judge is not required to give repetitious or redundant instructions. See Dena, supra; Hopper, supra.

For the reasons stated, the judgment is affirmed.

Price, J., not participating.

       Record, p. 617.


author: Steele Hays, Justice. Glaze, J.,

text:
    Johnny RIDENHOWER v. Harold S. ERWIN, Circuit Judge, Lawrence Circuit Court
    90-92
    799 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      Murrey L. Grider, for petitioner.

      Huckaby, Munson, Rowlett and Tilley, P.A., by: Beverly A. Rowlett, for respondent.
   Steele Hays, Justice.

Johnny Ridenhower brings this original action for prohibition against Harold S. Erwin, Circuit Judge of Lawrence County. In pending litigation, Judge Erwin ordered Mr. Ridenhower to execute Internal Revenue Serve Form 4506 requesting copies of Ridenhower’s federal income tax returns for the years 1983, 1984, 1985 and 1986. Johnny Ridenhower refused to execute the form and has petitioned this court for a writ of prohibition, which we deny.

Johnny Ridenhower is a plaintiff in a suit against State Farm Insurance Company to recover the proceeds of a fire insurance policy. State Farm defended on the basis of arson and requested copies of the plaintiffs federal and state income tax returns for years preceding the fire. Mr. Ridenhower contends he did not file returns for 1983 to 1986, inclusive, having received no reportable income for those years. Judge Erwin ordered Mr. Ridenhower to execute the appropriate form requesting copies of any such filings, prompting the action now before us.

Prohibition is an extraordinary writ and is never issued to prevent a trial court from erroneously exercising its jurisdiction, but only where it proposes to act in excess of its jurisdiction. Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988). Its issuance is discretionary in cases of pressing necessity; it should never be granted unless the petitioner is clearly entitled to relief. Karraz v. Taylor, 259 Ark. 699, 535 S.W.2d 840 (1976); Harris Distributors, Inc. v. Marlin, 220 Ark. 621, 249 S.W.2d 3 (1952).

Petitioner does not contend the trial court’s jurisdiction is exceeded, only that the order will bring irreparable harm since the Internal Revenue Service would be “alerted and the potential for an audit is significant.” He relies on Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), where we granted a writ. There, the trial court had ordered Curtis, one of four defendants and the only defendant from whom punitive damages were sought, to furnish tax returns and financial statements. The sole basis for the plaintiffs’ need for Curtis’s returns and records was in connection with the claim for punitive damages. In granting Curtis’s petition for a writ of prohibition, we noted that the complaint failed to state a cause of action for punitive damages and beyond that, that the plaintiffs had waived a claim for punitive damages by seeking punitive damages against one defendant for alleged conduct for which all defendants would have been equally culpable.

We took the pains in Curtis to point out that ordinarily prohibition would not lie in such a case, but since it was a matter of first impression we would exercise our discretion by granting a writ for the benefit of the trial courts. It would be a mistake to read Curtis as a general precedent for the issuance of writs of prohibition in discovery disputes. We emphasized that position recently in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990), by characterizing the Curtis decision as “unique” in that the financial records were not discoverable and irreparable harm was convincingly demonstrated. We do not equate this case with Curtis and, accordingly, the writ is denied.

Glaze, J.,

concurs. As I said in my concurring opinion in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990), I would overrule the court’s decision in Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981).

Newbern, J., joins in this concurrence.


author: David Newbern, Justice.

text:
    Larry CRANE, Director of the Arkansas Assessment Coordination Division, et al. v. NEWARK SCHOOL DISTRICT NO. 33 of Independence County
    89-354
    799 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990
    [Rehearing denied December 21, 1990.]

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellants.

      Rose Law Firm, A Professional Association, by: David L. Williams, M. Jane Dickey, and B. Michael Bennett, for appellee.
   David Newbern, Justice.

This is a property tax case requiring interpretation of Ark. Const, art. 16, § 14, and implementing legislation. The action was brought by the appellee, Newark School District No. 33 of Independence County (Newark), against appellant Larry Crane, Director of the Assessment Coordination Division (ACD), which is a division of the Arkansas Public Service Commission. Also named as defendants were appellants Margaret Boothby and George Kimmer, County Clerk and Tax Collector, respectively, of Independence County. Newark claimed that Boothby and Kimmer, pursuant to the directions of ACD, had assessed and collected personal property taxes, on other than property belonging to utilities and common carriers, in amounts improperly low in its district in 1988. The chancellor found the formula used by Boothby and Kimmer at the instance of ACD was contrary to applicable statutes and to the Constitution. She enjoined the appellants from using the ACD formula and ordered a 1988 assessment on the basis of a formula required by the statutes implementing Amendment 59. The decision was correct.

Massive reassessment of property occurred in Arkansas pursuant to our decision in Arkansas Public Service Comm. v. Pulaski County Bd. of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979), which required real and personal property to be taxed on an equal basis. Amendment 59 was a response to that decision. The amendment was intended to effect equalization on a gradual basis by holding the revenue from taxation of personal property relatively static as taxes on real estate increased. Clark v. Union Pacific R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). See also Wright v. Storey, 298 Ark. 508, 769 S.W.2d 16 (1989). Act 848 of 1981, codified as Ark. Code Ann. § § 26-26-401 through 26-26-409 (1987), was passed to implement Amendment 59.

The portion of Amendment 59 now codified as Ark. Const, art. 16, § 14, sets up a “base year” defined as “the year in which a county completes reassessment and equalization of taxable real and personal property . . . and extends the rolled back millage rates for the first time . . .for collection in the following year.” Newark’s reassessment occurred in 1983. The assessment on personalty in 1982 yielded $262,354.00. Based upon assessed personalty of $5,830,080, the tax rate was thus 45 mills. ($262,354 divided by $5,830,080 equals .045.) The chancellor found as a matter of fact that the 45 mill rate had been approved by the electorate.

The statutory scheme of implementation of the amendment is that the revenue figure of the base year will remain “frozen,” § 26-26-405(a), as the assessment base increases and the tax rate decreases. There is support for the statutory freeze of revenues in the amendment. For example, in a proviso which could easily be interpreted as applying to the entire amendment there is the following:

Provided, however, that the amount of revenues derived from taxable personal property assessed in the taxing unit for the base year, other than personal property taxes to be paid by public utilities and regulated carriers . . . shall be computed at the millage necessary to produce the same dollar amount of revenues derived during the current year in which the base year adjustment or rollback of millage is computed, and the millage necessary to produce the same dollar amount of revenues received from personal property taxes received by the taxing unit, for the base year shall be reduced annually as the assessed value of taxable personal property increases until the amount of revenues received from personal property taxes, computed on the basis of the current year millage rates will produce an amount of revenues from taxable personal property equal to or greater than received during the base year, and thereafter the millage rates for computing personal property taxes shall be the millage rates levied for the current year. [Ark. Const, art. 16, § 14.]

To accomplish this freezing of revenues and reduction in rate of taxation on personalty, the general assembly created a formula for annual computation of the reduced interim tax rate until equalization. To use the formula, the following data, specified in the statute, are required:

1. Base year revenues _
2. Previous year assessment base _
3. New assessment base _
4. Current millage by tax source _

The formula provided in the statute is as follows:

Previous Assessment divided by New Assessment = Growth Factor
Base Base
Growth Factor times Current Millage = Interim Millage (rounded)
Interim Millage times New Assessment = Revenue
Base

For example, Newark’s new assessment base for 1983 was $6,775,115. Its previous (base year) assessment base was $5,830,080. The latter figure divided by the former yields a growth factor of .8606. The current millage, .045, multiplied by the growth factor .8606 yields an interim millage of .0389 or 38.9 mills. The new assessment base, $6,775,115, multiplied by the interim millage, .0389, yields revenue of $263,551. That figure is no more than 10% above the previous year revenues, thus the provisions of the statute are satisfied. See Hot Springs School Dist. No. 6 v. Wells, 281 Ark. 303, 663 S.W.2d 733 (1984).

We must note here the discrepancy between item 2. in the statutory data list, “Previous year assessment base,” and the term used in the formula, “Previous assessment base.” The chancellor concluded that the term used in the formula referred to the base year assessment base rather than that which was obtained in the year previous to the year under consideration. We do not know the basis of her choice, but it makes no difference, significant for our purposes, in the result she reached.

Both the constitutional amendment and the statute contemplate that equalization of rates of taxation on realty and personalty will occur because there will be an increase in personal property in any taxing unit from year to year but the amount of realty will remain the same. To hold the amount of revenue received from taxation of personal property at the same level, or within 10 % of it, in spite of personal property tax base increases, the rate of taxation is to be decreased as in the example given. At the point when the rate of taxation on personalty is reduced to that on real property, equalization will have been achieved.

While the assumption that the amount of assessable real estate in a taxing unit will remain the same is acceptable, unfortunately the assumption that the amount of personalty in the unit will increase is not acceptable. It has been demonstrated in Newark that the amount of personalty, and thus the assessable tax base on that species of property, may be reduced in any particular year. Newark’s personal property assessable tax base decreased in 1984,1985, and 1986. If the formula set out in the statute had been followed, the rate of taxation (the millage figure) would have increased.

For example, in 1987, Newark’s assessable base was $5,790,600. In the base year it was $5,830,080. Using the formula and dividing the former figure by the latter, the growth factor would have been 1.01. The growth factor times the “current millage,” defined by § 26-26-405 (a) as “the millage that was used in each taxing unit to derive the base-year revenues for personal property,” in this case .045 yields an interim millage of .0455 or 45.5 mills. That is a figure which is in excess of the base year millage. It clearly was not contemplated by the amendment or the statute that the millage would go up to any level, much less one not approved by the voters.

The Independence County authorities handled the problem during the years of decreasing assessment base simply by skipping the second part of the formula and using the rolled back rate of 38.9 mills during the period of declining personalty tax base. They thus apparently received less revenue in those years.

Authorities in the Assessment Coordination Division attempted to solve the problem in 1986 by changing the data to be used for the calculations from those provided in the statute. Instead of “Base year revenues” they instructed the clerks and collectors to use “previous year.” In Newark’s case, that meant that when the personalty tax base rose, as it did in 1987 to $6,902,315 from the 1986 figure of $5,790,600, Newark could receive no more than 10 % in excess of the $256,520 generated in the previous year, 1986. In addition, the Assessment Coordination Division instructed the county authorities to use the personalty assessment base from the “previous year” instead of the base year as item No. 2 in the data to be applied in the formula. These variations caused Newark’s revenue figure to drop substantially below that which it would have received if the formula had not been changed, and they caused Newark to bring this lawsuit challenging the practice of the Independence County Clerk and Collector which they had been instructed by the Assessment Coordination Division to follow. Newark contends it is entitled to a minimum of the “frozen” base year revenue figure of $262,354.

The Assessment Coordination Division contends it had the authority to vary the statutory formula because of the provision of § 26-26-409 giving it

authority and responsibility with respect to the implementation of . . . Amendment 59 and the provisions of . . . laws enacted to carry out the purpose and intent of the amendment. . . [and] to adopt appropriate rules, regulations, and guidelines to assure that the intent and purpose of-the amendment and the laws . . . are effectively and efficiently carried out during the transitional period.

We agree with the chancellor’s conclusion that no authority was given to vary the specific terms of the statute or to adopt a formula directly at odds with that contained in § 26-26-405.

The Assessment Coordination Division argues that if we fail to adopt its “interpretation” of the statutes we will make “Ark. Code Ann. § 6-20-302(4) (iii)” meaningless. The reference is apparently to § 6-20-302(4)(B)(iii) which provides:

Personal Property. The actual assessment for the previous calendar year shall be used for school districts located in counties that have not been reassessed. For school districts located in counties that have been reassessed, the charged assessment used shall be the actual assessment for the calendar year prior to the base year multiplied by the ratio of the taxes due to be collected in the current or latest year to the taxes due to be collected in the base year; ....

No explanation is provided as to how this language, which is part of the School Finance Act, an entirely separate piece of legislation, would be made meaningless if Amendment 59 and its implementing statutes are followed. We decline to speculate on the manner in which the two programs may be related. In any event, we would not hold that the language supersedes a constitutional amendment.

We agree with the chancellor’s declaration that the rate to be applied to Newark for 1988 is 38.1. It is figured as follows:

Base year revenue $262,354
Previous year base $5,830,080
New base $6,902,315
Current millage .045

The previous year base (base year), $5,830,080, divided by the new basé, $6,902,315, yields a growth factor of .8446. The current millage, .045, multiplied by the growth factor, .8446, yields an interim (rounded) millage of 38.1. The interim millage applied to the new base yields $262,978 which is within the 10% above base year limit.

While we approve the chancellor’s conclusions about the case before us, we must note that we are not dealing with an increase in millage above the base year figure of .045. Following the statutory formula could result, as demonstrated above, in a rate of taxation which is in excess of that of the base year and in excess of any approved by the electorate. That case was not before the chancellor, and consequently it is not before us now. The general assembly should be aware that the formula may be fatally flawed and completely unworkable if property values fall or if the amount of personalty in a taxing unit decreases to the extent that following the formula causes an increase in the millage to a level in excess of that of the base year or a level not approved by the voters. We find no provisions which would govern such an instance, and we urge the general assembly to consider the problem.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    John Lee MARTIN, Jr. v. Dennis MUSTEEN, City of Rogers, and David S. Clinger
    90-126
    799 S.W.2d 540
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      Norwood & Smith, P.A., by: Doug Norwood, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlartder, Solicitor General, for appellee.
   David Newbern, Justice.

This is an appeal from denial of information sought pursuant to the Arkansas Freedom of Information Act (FOIA). Ark. Code Ann. §§25-19-101 through 25-19-107 (1987 and Supp. 1989). William Leon Pinson was charged with manufacture and delivery of a controlled substance as well as possession of drug paraphernalia. His lawyer, John Lee Martin, Jr., the appellant, sought from appellee Dennis Musteen, who is the Chief of Police of Rogers, Arkansas, the police investigation file with respect to the charges against Pinson. Chief Musteen consulted with appellee David S. Clinger, the prosecutor of the 19th Judicial District, who advised that the file need not be released to Martin. Mr. Martin then brought this action pursuant to the act. Mr. Clinger intervened on the side of Chief Musteen and the City of Rogers. The circuit court ruled that the information need not be released until Pinson was tried or a decision had been made not to try him. The result reached was correct, and we affirm.

We have no doubt that the information sought constituted “public records” as defined in § 25-19-103(1). According to § 25-19-105(a), all public records are open to public inspection by any Arkansas citizen during regular business hours of the custodian of the records. Section 25-19-105(b), however, lists the exemptions, one of which, found in § 25-19-105 (b)(6), is “[undisclosed investigations by law enforcement agencies of suspected criminal activity.”

The circuit court held a hearing at which Chief Musteen testified and referred to the investigation as an “ongoing” one. He said he would be guided in any felony investigation case by the advice of Mr. Clinger. Mr. Clinger testified that Pinson’s case was part of a larger investigation involving a great deal of information about other persons allegedly involved with Pinson in trafficking in drugs and that the investigations of those persons would continue for some time before the police stop the active investigation.

For his contention that the police file in this case does not fall within that exemption, Martin cites two of our recent cases. The first is City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988), in which we held that information contained in investigations conducted by the City of Fayetteville police and fire departments were not undisclosed and thus not exempt from release. The police and fire departments had finished their investigations. The Federal Bureau of Alcohol, Tobacco, and Firearms had also investigated, and Rose had been indicted by a federal grand jury. We wrote:

There was no “undisclosed investigation.” Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The [BATF] had investigated the matter, turned its report over to the U.S. attorney’s office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an “undisclosed investigation” involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act.

Discussing the City of Fayetteville case, Professor John J. Watkins noted that, if taken literally, the language quoted would be a proper basis for the fears of the justices who dissented in the case that law enforcement efforts would be severely hampered if the file of any police investigation could be obtained pursuant to the FOIA just on the basis of public awareness. He alludes to an alternative interpretation of the quoted language to the effect that any completed investigation is subject to disclosure. Professor Watkins points out that neither public awareness nor the alternative interpretation should be the criterion applied to determine whether an investigation has been “disclosed,” but the test should be based on a criterion more in line with the purposes of the FOIA.

This approach would require a case-by-case evaluation of the effect of disclosure in light of the purposes of the law enforcement exemption. For example, if the only danger apparent from release of certain records is interference with an investigation or contemplated enforcement proceedings, the exemption is inapplicable if the investigation has been completed and no further proceedings are contemplated. As one court has observed, there is in such circumstances “no reason to protect yellowing documents contained in long-closed files.” On the other hand, if release of records in a “closed” case would reveal the identity of a confidential informant, an undercover police officer or even the name of a citizen interviewed during an investigation, the exemption should apply and the material should be withheld. Of course, if the name of the individual can be deleted from the records, the remainder of the material is subject to disclosure until another reason for secrecy is present. [J. Watkins, The Arkansas Freedom of Information Act, 70-71 (m & m Press, 1988).]

The other case cited by Mr. Martin is McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). There we held that photographs of a crime scene and a pathologist’s photograph made in connection with a police investigation were to be released in accordance with the act, citing the City of Fayetteville case. We also held that the police file in the McCambridge case was subject to release under the act despite the fact that it allegedly contained statements from confidential informants. We noted the argument made in that case by the Little Rock Police Department to the effect that requiring the release of the file would detract from effective law enforcement and thus be detrimental to the public interest. We referred that argument to the general assembly.

The court’s opinion in the McCambridge case closed, however, with this language:

The only purpose of the exemption, as written, is to prevent interference with ongoing investigations. When a case is closed by administrative action, as this one was, the reason for the exemption no longer exists, and the trial court correctly ordered the statements released. Accordingly, we affirm the ruling of the trial court that the police reports are to be released.

The City of Fayetteville and McCambridge cases have in common the fact that the investigation files sought to be released had to do with completed police investigations. In the language quoted above from our opinion in the McCambridge case, we recognized that the statutory exemption of “undisclosed investigations” had as its purpose the protection of “ongoing investigations” like the one in this case.

While the investigation in this case was disclosed to the extent that it was public knowledge that Pinson was charged with a crime at the time the request for information was made, there was evidence that it was undisclosed as to other possible defendants. It was, in any event, an “ongoing” investigation which we recognized in the McCambridge case as the type to be protected. While we recognize that the definition of “ongoing” is not the same as the definition of “undisclosed,” we conclude, as we recognized in the McCambridge case and as Professor Watkins suggested after our decision in the City of Fayetteville case, that the general assembly meant to protect ongoing criminal investigations being conducted by law enforcement agencies.

We appreciate Mr. Martin’s argument that, by including in ongoing investigations references to closed investigations, the authorities could try to frustrate attempts to obtain information from investigations which are closed and thus not ongoing. Our only answer must be that the trial court will have to decide, as a matter of fact in any such case, whether investigations are ongoing or not. In the McCambridge case, we obviously did not go as far as Professor Watkins would have had us go in the direction of saying that, for example, the names of confidential informants must be protected from disclosure under the act. Nor do we go so far as the trial court in this case to say that a criminal investigation is not entitled to come within the law enforcement exemption until the subject of the investigation is tried or a decision not to try him or her has been made.

Our holding here is that if a law enforcement investigation remains open and ongoing it is one meant to be protected as “undisclosed” under the act. We recognize that the investigation in this case could be said to be closed and thus not ongoing to the extent that it was an investigation of Pinson who has been charged, but our judgment is that it was the sort of investigation intended by the general assembly to deserve the label “undisclosed,” because of its continuing and sensitive nature, and thus the trial court reached the correct result.

Affirmed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. If the majority court’s decision today does not overturn its earlier holding in City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988), it certainly has rendered the Rose holding, and the principle upon which it was based, entirely meaningless. As the majority points out, this court in Rose held that certain investigative records possessed by the Fayetteville Police Department were subject to disclosure under the FOIA because the records did not involve an “undisclosed investigation” which would render them exempt. We further said in Rose that the records did not involve an undisclosed investigation because the state and federal authorities had completed their investigation, a federal grand jury had indicted Rose for manufacturing and possessing unregistered explosive devices, and everyone knew of the law enforcement authorities’ investigation and indictment of Rose.

There is little to distinguish the present case from Rose. The Rogers Police Department investigated a controlled substance crime that Mr. William Pinson purportedly committed on July 11, 1988, and on June 5, 1988, Pinson was arrested and later arraigned on September 5,1988. Pinson’s attorney, John Martin, made his FOIA request of the Rogers Police Department on September 25, 1989 — after everyone knew of the authorities’ investigation of and formal charge against Pinson.

The only difference between this case and Rose is that here the prosecutor claims the police department’s file on Pinson also contains information pertaining to other individuals, who were allegedly involved with Pinson in his drug violation. The prosecutor says his investigation of these other individuals is continuing.

The majority opinion recognizes that the investigation file the Rogers police have on Pinson would have been closed and therefore open for inspection for FOIA purposes, except that the file also contains information on other persons who were supposedly involved with Pinson. Because of these references to other individuals, this court categorized this otherwise closed investigation as an “ongoing” one, which is exempt from inspection under our interpretation of the FOIA. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). Of course, when the court adopts this view, it might as well hold (contrary to Rose) that all investigative records of defendants charged with crimes are exempt from FOIA inspection until those defendants are tried, convicted or acquitted. Since most any investigative file on a defendant charged with a crime will contain references to other individuals, the state need only assert that those persons remain under investigation thereby closing the defendant’s file from inspection until (or even after) his trial.

If the Rose decision is to retain any semblance of meaning and viability, surely an investigative file of a formally charged and arraigned defendant should be subject to inspection after the file is sanitized of those objectionable materials concerning other legitimate, potential defendants. At the very least, I would reverse and remand this case directing the trial court to remove or excise those references to such individuals and allow the appellant to inspect the remaining materials which were determined by this court in Rose to be subject to inspection under the FOIA.


author: Otis H. Turner, Justice.

text:
    Tem TYLER, et. al. v. Lottie SHACKLEFORD, et al.
    90-134
    799 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      Tem Tyler and Karen Tyler, pro se.

      Bruce Lindsey, for appellees Lottie Shackleford and Lloyd Johnson.

      Arnold, Grobmyer & Haley, by: Ben F. Arnold, for appellee John C. Earl.
   Otis H. Turner, Justice.

This appeal is from a decision of the Pulaski County Circuit Court, Fifth Division, denying the petitioner’s challenge to the certification of Judge John C. Earl as a candidate for the Democratic Party nomination for election as chancellor. The action filed was a petition for writ of mandamus to be directed to Lottie Shackleford, Chairperson of the Democratic Party of Arkansas, and Lloyd Johnson, Secretary of the Democratic Party of Arkansas. The petition was subsequently amended, naming Judge Earl as a party defendant and seeking a declaratory judgment that he was not qualified to serve as chancery judge nor to stand for re-election to that office.

The appellants contended that Judge Earl, who had been convicted in 1969 in federal court of a felony in connection with the distribution of controlled substances, had failed to comply with Ark. Code Ann. § 7-6-102 (1987) in that he had not attached a Certificate of Expunction to his Political Practices Pledge, which included a declaration that he had not been convicted of a felony in or outside Arkansas. Following the filing of the petition, Judge Earl filed a Certificate of Vacation of Conviction from the United States District Court for the Eastern District of Arkansas, dated January 19, 1971. The document set aside the conviction pursuant to 18 U.S.C. § 5021(b), a section repealed by Congress in 1984. In its response, appellee Democratic Party of Arkansas argued that the Certificate of Vacation was a federal equivalent to the state Certificate of Expungement and that no time limit existed for its presentation.

The circuit court found that the petitioners had failed to join as parties defendant the Pulaski County Election Commission and the Perry County Democratic Committee, the entities charged with conducting the primary elections in the respective counties. We agree that such failure to join necessary parties is fatal to the appellants’ cause, and we therefore affirm.

For reversal, the appellants raise four points. At the outset we note that Judge John C. Earl was defeated in his race for nomination as the Democratic candidate for election as Chancery Judge for the Sixth Judicial District, which is comprised of Pulaski and Perry Counties. While the question of the re-election of Judge Earl is therefore moot, we choose to address the legal issues presented in this appeal because the public interest is involved. See State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989).

The appellants argue in their first point for reversal that the circuit court erred in dismissing their petition on the basis of a lack of necessary parties. They insist that all necessary parties were present — Judge Earl to represent himself, and the Democratic Party of Arkansas to represent the county committees. As the court noted in its order, however, the Pulaski and Perry County Democratic Committees are responsible for the primaries held in their counties. The state Democratic Party is not vested with the authority to remove a candidate’s name from the ballot. See State v. Craighead County Board of Election Commissioners; Ridgeway v. Catlett, 238 Ark. 232, 379 S.W.2d 277 (1964); Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942). Thus, the appellants failed to join the necessary parties to their action.

In their overlapping second and third points for reversal, the appellants contend that the circuit court was in error in dismissing their petition because Ark. Code Ann. § 7-6-102 (1987), which sets forth requirements for political practices pledges, does not recognize a federal “vacation of conviction.” Subsection (d) of that Code section states:

For purposes of this section, a person shall be qualified to be a candidate for a state, district, county, municipal, and township office and may certify that he has never been convicted of a felony if his record was expunged in accordance with §§ 16-93-301 — 16-93-303, or a similar expunction statute in another state, provided, the candidate presents a certificate of expunction from the court that convicted the prospective candidate.

The appellants rely heavily on United States v. McMains, 540 F.2d 387 (8th Cir. 1976), which held that the Federal Youth Corrections Act did not authorize the expunction of a record of conviction which had been set aside pursuant to 18 U.S.C. § 5021 because the statutory language did not plainly provide for record expunction and the issuance of a certificate of vacation “militates against a construction favoring expunction.” 540 F.2d at 389.

However, in United States v. Fryer, 545 F.2d 11 (6th Cir. 1976), the Sixth Circuit Court of Appeals held that:

[T]he Youth Corrections Act is by legislative design an expungement statute, and . . .the word “convicted” . . . cannot be read to include a conviction expunged from the record by the Youth Corrections Act. . . . Therefore, defendant did not have the prior felony conviction that would put him in violation of 18 U.S.C. App. § 1202(a). Nor could he be in violation of 18 U.S.C. § 922(a)(6) for misrepresentating that he was not a convicted felon because he was not in fact a convicted felon.

545 F.2d at 13.

In United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980), the appellate court stated that “If a youthful offender has been unconditionally discharged, the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been.. . . Issuing the section 5021(a) certificate to a youthful offender who has completed his sentence is a ministerial act which merely certifies what has already been accomplished.” 618 F.2d at 1124.

Hence, Judge Earl’s 1969 conviction, under federal case law, is considered a nullity. Moreover, because the reference in Ark. Code Ann. § 7-6-102 is to a “certificate of expunction” from Arkansas or another state, the federal certificate may be regarded as the equivalent of such a document. To hold otherwise would be to deny the force of a federal act. The trial court was correct to rule that Judge Earl was entitled to assert that he had never been convicted of a felony in Arkansas or elsewhere.

In their final point for reversal, the appellants maintain that the circuit court erred in refusing to disqualify Judge Earl on the basis of his failure to file a certificate of expunction with his political practices pledges in 1984 and 1990. As noted in United States v. Arrington, though, the setting aside of a conviction under 18 U.S.C. § 5021 means that it is “as if it had never been.” The language in Ark. Code Ann. § 7-6-102 refers only to Arkansas or other states’ certificates of expunction. Taking it at face value, then—as the appellants would have us do under their second and third points for reversal — the judge was never obligated to produce his federal Certificate of Vacation of Conviction because, legally, his conviction never occurred. The documentation was “a ministerial act” that simply certified what had “already been accomplished.” United States v. Arrington.

Affirmed.


author: Special Justice Sam H. Boyce.

text:
    MAGNOLIA SCHOOL DISTRICT NO. 14 of Columbia County and Other Arkansas Public School Districts Similarly Situated, et al. v. ARKANSAS STATE BOARD OF EDUCATION, et al.
    89-316
    799 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered November 19, 1990

      Perroni, Rauls & Looney, P.A., by: Samuel A. Perroni and Rita S. Looney, for appellants.

      Steve Clark, Att’y Gen., Paul Cherry, Asst. Att’y Gen., for appellee.
   Special Justice Sam H. Boyce.

The appellants, Magnolia School District No. 14 of Columbia County and Arkansas Public School Districts Similarly Situated, et al. (Magnolia) are a class representing all school districts in Arkansas other than the Little Rock, South Conway County, and Nema Vista districts. They contend that the appellees, Arkansas State Board of Education (Board), et al., illegally paid costs ordered by the federal courts in school desegregation cases under authorization of Section 3 of Act 1048 of 1987 (Public School Fund Act). Magnolia sought a declaratory judgment that the act was unconstitutional and petitioned for injunctive relief against future payments, and for a return of the funds already wrongfully diverted.

The trial court denied the unconstitutionality of the Act, noting that it did not violate “equal protection” and that there was a legitimate state purpose and a rational basis for the payment of funds under the Act. The trial court specifically found Section 3 of the Act constitutional; however, it refused to order a refund of certain monies paid out of the Mutual Foundation Program Aid (MFPA) account and issued an injunction to prevent further misdistribution of these funds. The trial court also refused to order the state treasurer to refund the monies previously expended from the MFPA funds.

We review chancery cases de novo, Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988), but do not reverse a chancellor’s findings unless clearly erroneous. ARCP Rule 52(a).

Based on the record before us, we affirm the chancellor in his findings that funds spent pursuant to Section 3, Act 1048 of 1987 were constitutional expenditures. In addition, we find that the trial court was not in error in issuing an injunction to prevent misdistribution of the MFPA funds.

Magnolia first argues that any distribution of monies to the public schools outside of the MFPA formula proscribed by Ark. Code Ann. § 6-20-301 — 319 (1987 & Supp. 1989) is contrary to statutory law and to our “mandate” in Dupree v. Alma School Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). We disagree. There is nothing in the statute that would indicate all distributions to the school districts must necessarily be allocated to the formula. In Dupree, we held that the then-existing formula for funding the various school districts in the state violated the equal protection provisions of the Arkansas Constitution. While we did mandate that a funding formula used by the state to distribute money to various school districts must conform to equal protections and standards and must provide the districts with “equal educational opportunity,” Dupree did not mandate distributions under this formula to the exclusion of all other methods of distribution.

In this instance, the General Assembly included as part of the Public School Fund Act a line item appropriation to be used specifically to pay the federal court mandated costs of the Pulaski County desegregation cases. We find nothing inherently wrong with such an appropriation, this being only one of thirty-one total line items.

Even if the state could make distributions outside the statutory formula, appellant Magnolia further argues that the appropriation nonetheless violates equal protection and serves to deprive appellants of equal educational opportunity. Dupree, 279 Ark. at 347, 651 S.W.2d at 93. In other words, if the appropriation had not been made to the Pulaski County School Districts, appellants would have received these monies through MFPA and the Pulaski County School Districts benefitted from the appropriation to the detriment of appellants’ district. In an attempt to bolster its case, the appellant Magnolia urges us to apply the strict scrutiny equal protection analysis by relying again on language in Dupree that the “right to equal educational opportunity is basic in our society.” Id. We decline to do so. The state had an obligation to follow the orders of the federal court to provide the necessary funds for the desegregation of the Pulaski County School Districts. See Missouri v. Jenkins,_U.S__, 110 S. Ct. 1651 (1990) (state taxation law must yield to federally mandated desegregation efforts); Cooper v. Aaron, 358 U.S. 1 (1958) (the governor has no authority to nullify federal court order). As the trial court noted, following a federal court order is a legitimate, if not compelling, interest, and the utilization of money from the public school fund for the purpose of funding desegregation efforts is rationally related to achieving that legitimate purpose.

The legislature has the inherent power to appropriate monies belonging to the State of Arkansas, and those funds should be expended in accordance with the legislative intent. It is the court’s duty, as far as is practical, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). In this instance, the Board has expended funds in accordance with the expressed intent of the legislature.

Magnolia next argues that the funds spent pursuant to the appropriation on behalf of the Pulaski County School District violates Section 2 of Article XIV of the Arkansas Constitution in that under this provision, no monies belonging to the public school fund are to be spent other than for school purposes. Yet, some of the money from the appropriation went to pay attorney’s fees and Magnolia contends that such payment is not for public school purposes. The trial court disagreed, relying on the Board of Educ. of Lonoke County v. Lonoke County, 181 Ark. 1046, 29 S.W.2d 268 (1930). Magnolia attempts to distinguish Lonoke on the basis that attorney’s fees were utilized to perfect a recovery, as opposed to the diversion of school funds. Although this is a distinguishing feature, we note that the court in Lonoke relied primarily on Taylor v. Matthews, 75 S.E. 166 (1912), as authority for its holding and quoted extensively from Taylor, including the following:

But while the expenditure of public school funds is confined to public schools, we are of the opinion that in the conduct of the public schools the proper authorities (such as trustees of the school district) may, in their discretion, make any expenditure of the funds which is absolutely necessary for the proper maintenance of the school entrusted to their charge. Likewise, we are willing to give broad discretion to those charged with the proper maintenance of our schools.

Further, in Rainwater v. Hays, 244 Ark. 1191, 428 S.W.2d 254 (1968), this court held that any use of school funds that results in benefits to school funds or property or aids in the stated purposes for which these funds may be expended would not be an unconstitutional diversion.” Rainwater, 244 Ark. at 1195, 428 S.W.2d at 257. Magnolia, argues that since there was no benefit to the public schools as a class, then the appropriation was unlawful. We take the opposite view. Here the monies appropriated were for the benefit of public education. Anytime the evils of segregation can be taken out of the school system, public education as an institution benefits. This money was appropriated specifically for that purpose, and the use of these monies, in part, for attorney’s fees was necessary to achieve the purpose of the appropriation.

The trial court found that the Board had distributed money out of the MFPA fund without following the statutory formula for the distribution of these funds and issued an injunction to prevent further misdirection of the funds. This is uncontested on appeal. However, the court held that it was without authority to order the state treasurer to refund the money expended from MFPA funds as that would be tantamount to an action against the state. We agree.

Magnolia asserts that the trial court erred when it found it did not have authority to order the state treasurer to return the funds that were wrongfully taken from the MFPA fund and distributed outside the statutory formula. Relying on Young v. Clayton, 223 Ark. 1, 264 S.W.2d 41 (1954), the trial court found that doing so would be tantamount to a suit against the state because the funds have already been spent.

In Young, the plaintiffs were challenging the diversion of certain highway fund monies to the State’s General Revenue Fund. This court refused to order the state treasurer to refund the diverted funds because plaintiffs failed to offer any proof that the money had not already been spent. The court held that the money still in the hands of the treasurer could have been refunded through an adjustment in the books. However, once the funds have passed outside the control of the treasurer, any such adjustment results in replacing funds already spent, and such an action would amount to a suit against the state. Id. Young, 223 Ark. at 7, 264 S.W.2d at 44.

Magnolia relies on Chandler, which directed the treasurer to return money to the Public School Fund that had been wrongfully transferred to the Employer’s Accumulation Account. This Court held that such an order was in harmony with Young.

Magnolia offered extensive proof indicating that there were, at time of trial, substantial sums of money in the Public School Fund and various other funds held by the treasurer. There was also proof indicating that the entire desegregation appropriation has already been spent. Magnolia argues that the money can be replaced from the Public School Fund or from some other fund in accordance with Chandler.

This, however, is distinguishable from both Young and Chandler. In both Young and Chandler, the money in question had been taken from one fund and placed and held in another. This was done, essentially, through accounting entries. The Young court refused to order a refund because there was no evidence to indicate that the diverted funds had not been expended. On the other hand, the Chandler court ordered a refund through a bookkeeping entry by the treasurer “to the extent the funds have not been disbursed.” Id. Both cases involved fund to fund transfers.

That is not the case here. In this case, there was simply a disbursement (or a number of disbursements) from the MFPA fund to outside parties. Clearly, the money has passed outside the treasurer’s control. Therefore, any attempt for refund would, indeed, be tantamount to paying a judgment out of State funds and would violate Article V, Section 20 of the Arkansas Constitution.

In sum, we affirm the chancellor.

Newbern and Price, JJ., not participating.