author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    CITY OF NORTH LITTLE ROCK v. Maynard VOGELGESANG et al
    81-89
    619 S.W. 2d 652
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      Jim Hamilton, by: G. Spence Fricke, for appellant.

      Christopher Thomas, for appellees.
   George Rose Smith, Justice.

This is an action by seven former North Little Rock policemen to recover up to a maximum of 30 days of accumulated sick-leave pay that is assertedly due to each of them. The plaintiffs also seek to maintain the suit as a class action for the benefit of other former policemen. The city defends primarily on the ground that the original ordinance allowing the payment of accumulated sick leave upon the termination of employment was amended in 1976 to exclude employees with less than ten years of service. None of the plaintiffs meet that minimum requirement.

After a hearing the trial judge ruled that the 1976 amendment did not apply to members of the fire and police departments; so the plaintiffs were entitled to recover. The city appeals from the ensuing money judgments for accumulated sick leave up to 30 days. The plaintiffs cross appeal from the court’s refusal to approve a class action. Our jurisdiction is based on Rule 29 (1) (c).

We disagree with the trial judge’s interpretation of the city ordinances. The original ordinance was codified as Sections 2-206 and 2-207. Section 2-206 provided that sick leave would accrue monthly and could be accumulated for not more than a total of 30 days. Section 2-207 provided that a city employee would be paid all his accumulated sick leave upon retirement.

In 1974 both sections were amended by Ordinance 4322. Section 1 of that ordinance amended 2-206 “to read as follows,” with the substituted language increasing the permissible accumulation to a maximum of 60 days, but excepting members of the fire and police departments from the effect of “this amendment.” Section 2 then amended 2-207 “to read as follows,” and provided that employees with less than 10 years of service would be paid accumulated sick leave to a maximum of 30 days at their retirement or resignation, but employees with 10 years of service or more would be paid up to their maximum accumulation of 60 days. In 1976 Ordinance 4710, relied on by the city, amended Section 2 of Ordinance 4322 to provide that employees with less than 10 years of service would not be entitled to the payment of any accrued sick leave upon termination of their employment.

We cannot agree with the trial judge’s conclusion that the exemption of the fire and police departments contained in Section 1 of the 1974 ordinance also applied to Section 2 of that ordinance. Section 1 was directed only to 2-206 and referred to “this” amendment, not these amendments. Section 1 had no effect upon 2-207, which was simultaneously but separately amended by Section 2, with no similar exemption of the fire and police departments. Hence the city’s apparent intention was to permit firemen and policemen to accumulate up to 30 days of sick leave under the first two ordinances, payable upon retirement. But the 1976 amendment purported to withdraw the right to any payment of accumulated sick leave until the employee had served for at least ten years. If that amendment is retroactively valid, the city’s position must be sustained.

The appellees argue that they had a vested contractual right to their accumulated sick leave because they “contributed” to the plan, not in money but by coming to work when they might have stayed away and charged their absence to sick leave. We do not find this argument persuasive. The ordinary meaning of the words “sick leave” contemplates an illness rather than an optional holiday with full pay.

Alternatively the appellees argue that they had a vested contractual right to their accumulated sick leave, because it was held out to them as a fringe benefit at the time of their employment. There is a division of authority about the recognition of a vested right to the continuation of sick leave or similar benefits which arise from a statute or ordinance rather than from an express contract incorporating such benefits. The cases holding that there is no vested right include: Marsille v. City of Santa Ana, 64 Cal. App. 3d 764, 134 Cal. Rptr. 743 (1977) (sick leave); Brown v. City of Highland Park, 320 Mich. 108, 30 N.W. 2d 798 (1948) (pension); Halek v. City of St. Paul, 35 N.W. 2d 705 (Minn. 1949) (sick leave); Lickert v. City of Omaha, 12 N.W. 2d 644 (Neb. 1944) (pension); Dodge v. Board of Education, 302 U.S. 74 (1937), holding that there is a presumption that the law is not intended to create vested rights, but the question is essentially one of legislative intent. Other cases hold that the statute or ordinance becomes part of the contract of employment and creates a vested right. Yeazell v. Copins, 402 P. 2d 541 (Ariz. 1965) (pension); Vangilder v. City of Jackson, 492 S.W. 2d 15 (Mo. App. 1973) (sick leave); Harryman v. Rosenburg Rural Fire Protection Dist., 420 P. 2d 51 (Ore. 1966) (sick leave); City of Galveston v. Landrum, 533 S.W. 2d 394 (Tex. Civ. App. 1976) (sick leave); Mulholland v. City of Tacoma, 83 Wash. 2d 782, 522 P. 2d 1157 (1974) (pension).

We think the better view is that an employee’s right to accumulated sick leave in a case such as this one continues to vest as long as a particular plan is in force, but the city may prospectively modify the plan if that course is found to be advisable. Hence, although we disagree with the trial court’s conclusion about the effect of Ordinance 4710, we remand the cause for a determination of the amount of accumulated sick leave, up to a maximum of 30 days, that had accrued to each claimant on the effective date of that ordinance and that was not thereafter diminished or exhausted. In the case of employees such as these, who did not ultimately complete 10 years of service, there could be no additional accumulation after Ordinance 4710 went into effect.

As to the cross appeal, a class suit is permitted when, in addition to other requirements, the parties are numerous and it is impracticable to bring them all before the court within a reasonable time. ARCP, Rule 23 (a). Here the members of the class are all identified and total only seventeen, including the seven appellees. The appellees cite no authority permitting a class action for such a small group, and we doubt if such a case exists. Moore’s Federal Practice, § 23.05 [1] (1980); Wright and Miller, Federal Practice and Procedure: Civil, § 1762 (1972). In the present case there is no showing of impracticability.

Reversed on direct appeal and remanded; affirmed on cross appeal.

Purtle, J., dissents.

John I. Purtle, Justice,

concurring in part, dissenting in part. I dissent from the majority on that part of the opinion which refuses to allow the appellees to continue to accrue sick-leave time after December of 1976 when the city passed Ordinance 4710.1 agree with the interpretation by the majority up through their interpretation of Ordinance 4322 which was effective in January of 1974.

When the appellees were hired by the city of North Little Rock, the provisions of Ordinance 4322 provided:

The city employee with less than ten (10) years service shall be paid, at the time of his retirement or resignation from city employment, or upon the death of the employee, for all sick leave accumulated by him, to a maximum of thirty (30) days. ...

Appellees undoubtedly considered the accumulation of sick pay as part of the remuneration for their services with the city of North Little Rock. Sick leave, vacation, hospitalization and life insurance are elements which strongly influence an individual in accepting or rejecting job offers. In my opinion, when the appellees were hired this ordinance became a part of their contract.

The city had no right to take away benefits which were, in my opinion, already vested. It seems to me that the language above-quoted is clear and unambiguous and therefore we need not resort to the rules of statutory construction to determine the meaning thereof. Mears v. Arkansas State Hospital, 265 Ark. 844, 581 S.W. 2d 339 (1979). The rules of statutory construction, if required, apply to city ordinances as well as enactments of the General Assembly. Deloney v. Rucker, 227 Ark. 869, 302 S.W. 2d 287 (1957).

We have held that a city may be bound by the terms of contracts entered into by it in the same manner as private corporations or citizens. Harrison v. Boone County, 238 Ark. 113, 378 S.W. 2d 665 (1964). The right to accumulate up to 30 days sick leave was a part of the ordinances of the city of North Little Rock when the appellees were hired.

The majority recognize that the authorities are divided as to whether sick leave benefits are vested as a matter of contractual rights. Since we are ruling upon this particular issue for the first time, there is no reason why we should take the reactionary road and hold against those who have worked with the expectation that they would earn the benefits which had been promised them. The majority has been very fair in citing the authorities on both sides of this issue. However, I feel the case of Yeazell v. Copins, 402 P. 2d 541 (Ariz. 1965), furnishes the most logical reasoning of all cases reported. Yeazell stated that policemen had the right to rely on the terms of the legislative enactment as it existed at the time they started to work. Subsequent legislation could not arbitrarily be applied retroactively to impair the contract. The opinion stated that changes could be made only with the consent of the officers involved. It is true Yeazell dealt with pension rights and the present case deals with accumulated sick leave. However, I can see no difference in the logic between the two benefits. We have held in a closely related case that accrued rights may not be denied to those who have earned them. In the case of Jones v. Cheney, 253 Ark. 926, 489 S.W. 2d 785 (1973), we stated:

The classes of contracts entered into voluntarily that are based on the assent of the parties expressly or impliedly given as opposed to those that are compulsory, are protected by the Constitutional provisions against impairing the obligation of a contract. In Anders v.Nicholson, 111 Fla. 849, 150 So. 639 (1933), it was held under a municipal ordinance providing for pensions to employees who should elect to participate in, and contribute to, the pension fund, that a public employee by acceptance of the terms and conditions of the enactment entered into a contractual relationship with the city, which entitled him to receive certain benefits, and his rights accruing under the statute could not be abrogated by any subsequent legislation. ...

I think the sick-leave benefits were a part of the consideration paid to the employees and that the city had no right to deny the appellees these benefits after the contract between the parties was in full force and effect.


source: Caselaw Access Project

author: George Rose Smith, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Calvin and Juanita DALE, Co-administrators v. Hershel Lee SUTTON
    81-126
    620 S.W. 2d 293
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981
    [Rehearing denied September 21, 1981.]

      John T. Harmon and Jeff Mobley, for appellants.

      Robert R. Cortinez, for appellee.
   George Rose Smith, Justice.

In 1977 Wanda Faye Sutton died as a result of injuries sustained in an automobile accident. She was survived by her second husband, the appellee, and by three minor daughters, two by her first husband and one by the appellee. The appellants, the deceased’s parents, were appointed as administrators of the estate. Their action for wrongful death, brought by them as personal representatives of the estate, was settled with probate court approval for a net amount of about @21,000, after the payment of costs and attorney’s fees.

The administrators then filed the present petition in the probate court for an appointment of the recovery. They sought nothing for themselves, as parents, but asked that the money be divided equally among the three children. The appellee, as the surviving husband, contested that division, asserting that he was entitled to an “appropriate share” of the recovery. After a hearing the probate court entered an order directing that the surviving husband receive one third of the recovery and that the three children each receive two ninths. Earlier language in the order referred to the husband’s award as “a curtesy amount of one third.” The administrators’ appeal was certified to us by the Court of Appeals. For reversal the appellants argue that a divorce suit was pending at the time of the decedent’s death, that the husband failed to adduce any evidence of pecuniary injury, that he was not entitled to an award of curtesy, and that we should direct an equal division of the money among the three children.

At the probate court hearing neither side offered any proof of particular elements of damage such as pain and suffering that would have been recoverable for the estate. AMI Civil 2d, 2215 (1974). Neither side offered any proof of pecuniary injuries (defined in AMI 2215), which would have been recoverable for the surviving spouse and next of kin. Law v. Wynn, 190 Ark. 1010, 83 S.W. 2d 61 (1935); Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W. 2d 878 (1968), adopting by reference the dissenting opinion in Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961). The surviving husband, however, testified that although his wife had filed suit for divorce before her death they had continued to have marital relations, to have family outings with the three children on weekends, and to try to reconcile their differences. No testimony was offered on behalf of the children.

The statutes provide that the court approving a compromise settlement in a death case shall fix the share of each beneficiary, upon the evidence, and that the probate court shall consider the interests of all the beneficiaries. Ark. Stat. Ann. §§ 27-908 to -910 (Repl. 1979). The mental anguish award to each beneficiary is to be determined on an individual basis. Peugh v. Oliger, supra. The appellee testified that he had paid the funeral bill, an expense recoverable by a surviving husband. McCormick v. Sexton, 239 Ark. 29, 386 S.W. 2d 930 (1965). His testimony concerning his mental anguish was in our opinion sufficient in jtself to support the amount of the award to him. We do not construe the trial court’s reference to “a curtesy amount” to mean that the husband’s share was determined arbitrarily, without regard to the evidence. It is our practice to sustain the trial court’s judgment if it is right, even though he gives the wrong reason. Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W. 2d 13 (1965). An appellant, seeking reversal, has the burden of showing that the trial court was wrong. Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869 (1965). Here the appellee’s testimony upon an issue of fact was uncontra-dicted, with no evidence being adduced by the appellants. We cannot say that their burden of demonstrating prejudicial error has been sustained.

Affirmed.

Hickman and Dudley, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because I think the trial court found that the husband of the deceased was entitled as a matter of law to an award equal to his curtesy interest. In his order the probate judge mentioned that the award was for the husband’s curtesy amount. When the appellants’ attorney asked Sutton how much money he wanted, an objection was made and it was pointed out to the probate judge by the appellee’s lawyer that the amount was a matter of law. The argument on appeal is that the chancellor erroneously applied the law. I cannot say from this record that the facts support the conclusion that there is adequate evidence to justify the order that was entered. Therefore, I dissent. I would remand the case to permit the appellants to inquire regarding the husband’s damages in accordance with the law.

Dudley, J., joins in this dissent.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Mary Sue S. HANNA, Executrix v. William H. HANNA, Jr., et al
    80-253
    619 S.W. 2d 655
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981
    [Rehearing denied September 21, 1981.]

      Brown, Compton & Prewett, Ltd., by: William I. Prewett and Joseph Hicky, and Friday, Eldredge & Clark, by: H. T. Larzelere and William T. Baxter, for appellant.

      H. Darrell Dickens, for appellees.
   Frank Holt, Justice.

This is an appeal from several orders of the probate court pertaining to certain disputed issues in probating the estate of the testator, William Herbert Hanna. The disagreements arose between the appellant, the testator’s widow and executrix, and appellees, the testator’s son, William Herbert Hanna, Jr., and a local bank as trustee, residuary beneficiaries. All matters were resolved by the probate court in favor of the appellees.

The testator, age 85, died March 24, 1975, leaving an adjusted gross income valued for federal estate tax purposes which was determined to be 51,774,003.22. His will was admitted to probate and his widow appointed executrix on April 4 of that year. His will left one-half of the assets of the estate to the appellant, to be selected by her (after deducting the amount of properties passing to her outside the will), as a marital deduction bequest, 540,000 to Hanna, Jr., several specific bequests of lesser amounts, and the remainder to the bank as trustee with the net income to be paid to appellant at least quarter-annually, according to her needs — the remaining net income to be distributed at least annually to the son. The trust had other provisions not pertinent here.

It appears that by February, 1977, the specific bequests had been paid as well as the debts of the estate including the federal and state estate taxes. During the next two years, various motions, accountings, objections thereto, interrogatories and responses were filed, and hearings conducted. Finally, when certain issues could not be resolved by agreement, they were submitted to the probate court. On these issues the court found that all of the income derived from the estate during the administration should be allocated to the residuary trust; that $750 per month, being paid by a court order to appellant from the estate, should be applied and allocated against her marital bequest; that appellant was entitled to $3,000 as compensation for her services as executrix of the estate; and that on the main issue, the marital bequest to her was a pecuniary and not a fractional bequest, that the clear intent of the testator was that his widow would select and receive estate assets in an amount which would equal one-half of the deceased’s adjusted gross estate as defined for federal estate tax purposes, that the value of the assets used to fund that pecuniary bequest be determined at their fair market value on the date or dates of their distribution. The court noted that the will provided the fair market value on the date of distribution be no less than the amount of the pecuniary bequest. The adjusted gross estate was $1,774,003-22 and, therefore, appellant was entitled to one-half ( $887,001.61), no more or less. She had received $393,037.37 independently of the marital bequest which, by the terms of the will, was to be charged to her one-half marital bequest. Thus, a balance of $493,964.24 was due her from the assets of the estate. Any assets selected and distributed to her which exceeded that amount were ordered returned to the estate.

The primary issue asserted for reversal is that the court erred in holding that the marital bequest should be funded with assets of the estate by using the fair market value of such assets as of the date or dates of distribution. The paramount rule in construing wills is that we determine the intent of the testator, from the four corners of the will, considering the whole will and in the light of the situation and circumstances surrounding the testator at the time of execution. McLane v. Chancey, Admr., 211 Ark. 280, 200 S.W. 2d 782 (1947). The third paragraph of the will here reads:

In the event I am survived by my wife, I give, devise and bequeath to Mary Sue S. Hanna assets of my estate, to be selected by the Executrix of this Will, in an amount which, when added to any other property which is passed or will pass to my wife independently of this bequest and which will qualify as a part of the marital deduction of my estate, will equal one-half of my adjusted gross estate as defined for federal estate tax purposes in the Federal Internal Revenue Code. Only assets that qualify for the marital deduction shall be available for selection by my Executrix and the fulfillment of this bequest. The values used in fulfilling this bequest shall be those values as finally determined for federal estate tax purposes, but the aggregate fair market value at the date or dates of distribution of the property received by my wife must be no less than the amount of this bequest as finally determined for federal estate tax purposes.

The appellant asserts this is not a true pecuniary bequest, but a “minimum worth” pecuniary formula provision and, thus, the clear intent of the testator was that, in fulfilling the marital bequest, the property distributed to satisfy the bequest should be valued as of the date of its valuation for federal estate tax purposes. Therefore, apel-lant should benefit from any appreciation of the assets, selected by her, up to the date of distribution. We disagree.

This is clearly a true pecuniary bequest. Here, the preresiduary marital bequest in the will provided for the funding of the marital bequest with assets “in an amount which ... will equal one-half of my adjusted gross estate as defined for federal estate tax purposes ...” (Italics supplied.) The words “an amount” are construed to indicate a true pecuniary bequest, or a bequest of a certain fixed amount unaffected by appreciation or depreciation of the assets and not a fractional bequest, although the bequest may be satisfied by assets in kind. In re Estate of Thompson, Deceased, 90 N.J. Super. 350, 217 A. 2d 627 (1966); In re Lewine’s Estate, 286 N.Y.S. 2d 566 (1968); In re Estate of Kantner, 143 A. 2d 243 (1958); and Fed. Est. & Gift Tax Rep. (CCH) par. 2081.09. Here, we note the appellant does not contend this is a fractional share bequest. In a true pecuniary bequest, unless otherwise provided, “the widow is not entitled to share in the appreciation of security values to the date of distribution and does not suffer by reason of any shrinkage thereof.” In re Estate of Thompson, Deceased, supra.

The clause in the will stipulating that the fair market value of those assets used to fund the bequest could be no less than the amount of the bequest as determined for federal estate tax purposes merely satisfied the requirement of the Internal Revenue Service, pursuant to Rev. Prac. 64-19. See Ark. Stat. Ann. § 62-2909.1 et seq. (Repl. 1971); Estate of Doyle J. Smith, par. 78, 175 P-H Memo TC; Polasky, Marital Deduction Formula Clauses in Estate Planning Estate and Income Tax Considerations, 63 Mich. L. Rev. 809 (1965). It appears that the I.R.S. clearly warns that a marital bequest does not qualify as a marital deduction when the bequest is funded with estate properties which have a fair market value on the date or dates of distribution of less than the amount which was deducted for federal estate tax purposes. Thus, depreciated assets cannot be used to fund such a bequest to give the estate the full benefit of the marital deduction while the estate of the surviving spouse is not increased by the full amount. Here, the testator used language in his will which indicates a typical pecuniary type formula for the fixed amount of a gift in order to accomplish the exact maximum marital deduction — no more and no less.

It is apparent from a reading of the above quoted provision that the testator intended to take full advantage of the federal estate tax marital deduction of one-half to the surviving spouse, by providing that any assets passing to her independently of the bequest, i.e., by operation of law, be deducted from the amount of the assets so that the total amount not exceed one-half of his adjusted gross, estate. Here is evidenced a clear intent that the bequest not be overfunded and that federal estate taxes be kept to a minimum. To allow the appellant to receive the appreciation accruing to those assets she selected to fund the bequest would be to allow an amount in excess of the pecuniary bequest of one-half the estate. This would result in overfunding the bequest and increased tax liability. Williams, Overqualification of Marital Deduction Due to Joint Ownership and Insurance, 21 Ark. L Rev. 23 (1967-68). Furthermore, here the testator made an additional or backup provision for his widow as primary beneficiary in the trust by providing her with funds from the trust income which might become necessary to maintain her needs and standard of living. We find the probate judge correctly held that the bequest should not exceed one-half of the amount of the estate as valued for federal estate tax purposes and any excess due to appreciation of those assets (as of the date of distribution) selected by her should be returned to the trustee.

Next, it is urged that the court erred in finding the income earned by the estate during its administration should be allocated to the residuary beneficiaries. We find no error. This matter is covered by Ark. Stat. Ann. § 58-605 (b) (Repl. 1971), as the probate judge held. That statute provides in pertinent part:

(b) Unless the will otherwise provides, income from the assets of a decedent’s estate after the death of the testator and before distribution ... shall be ... distributed as follows:
(1) to specific legatees and devisees, the income from the property bequeathed or devised to them respectively... (2) to all other legatees and devisees, except legatees of pecuniary bequests not in trust, the balance of the income ... in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value. (Italics supplied.)

Here, the will provided for a pecuniary bequest to appellant, as previously discussed; no provision was made for the income to be distributed to the widow. Therefore, the language of the above statute controls.

Appellant also contends that the probate judge erred in determining that the appellant was entitled to only @3,000 as compensation for her services as executrix, rather than the statutory maximum, which appellant computes as being in excess of @49,000. Ark. Stat. Ann. § 62-2208 (Supp. 1981). That statute also provides:

(a) The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable ...

Here, the appellant has listed numerous pleadings, orders, and matters filed in the administration of the estate to justify her claim for services as executrix. This is a sizeable estate and no doubt much effort has been required in administering it. There was no testimony taken at the hearing as to the issue of appellant’s compensation. Appellant, 87 years of age, was unable to attend this hearing due to her health. It appears that the work was done largely by her brother, who was allowed @500 per month by the court, as her assistant, and her accountant and her attorney. In the circumstances, we find no abuse of discretion by the trial court as to the award. Torian et al v. Smith, 263 Ark. 304, 564 S.W. 2d 521 (1978).

The final point is that the judge erred in determining that the @750 per month paid appellant during the administration of the estate should be charged against her marital deduction bequest provided for in the will. Appellant relies on Ark. Stat. Ann. § 62-2016 (d) (Repl. 1971), which provides that on appeal from an order of distribution, all prior appealable orders to which written objections were filed within 60 days after rendered shall be reviewed, urging no written objection was filed within 60 days of the order. We do not find this statute to be controlling here. The petition seeking the monthly support payments acknowledges that the will makes no provision for a distribution to her from the income of the estate. Appellant had asked that $750 per month from the income of the estate be paid to her “to be charged against the bequest made to her in said will.” The ex parte order stated the requested payment should be distributed to appellant during the administration of the estate; however, such payments should ultimately be “charged against” her bequest. This is what the probate judge has ordered. Also, as the court found, there was no showing that the appellant needed the money to maintain her standard of living. To the contrary, she did not need it. It appears she has considerable personal wealth in her own right.'

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. From the four corners of the testator’s will I perceive a husband who wanted to provide for his widow above all other things. He wanted to take full advantage of the Internal Revenue Code as it related to the marital deduction but he wanted to provide for his wife above all. It was for this reason he inserted in his will a provision which would guarantee her an amount equal to one-half of the gross estate as valued for federal estate tax purposes. This would prevent her from losing if the assets reduced in value before distribution. Additional evidence that the testator placed the welfare of his wife above taxes or son or anything else is the inclusion of the provision that she receive as much income from the residual trust estate as she needed to maintain her needs and standard of living.

It is my opinion the testator meant exactly what he said when he stated:

... I give, devise and bequeath to Mary Sue S. Hanna assets of my estate, to be selected by the Executrix of this Will, in an amount ...

If he had in mind a pecuniary bequest, he would simply have said, “I give her X dollars” or “half of my estate will be sold and the proceeds given to my wife.” Instead, he gave her a fractional gift of his estate by allowing her to select from the assets of the estate items in an amount equal to one-half of the adjusted gross estate.

There is no doubt in my mind that the court has thwarted the will and intent of the testator in denying the widow the right to select assets as provided in the will. She is in reality being awarded less than one-half of the estate because the estate produced income and appreciated in value and this increase is being placed in the remaining part of the estate. The holding of the majority declares this bequest to be a pecuniary legacy and therefore subjects it to capital gains tax. No such tax would apply if the bequest were held to be a fractional one.

In re Estate of Walker P. Inman, 22 Misc. 2d 573, 196 N.Y.S. 2d 369 (1959), the same argument was made as is presented by appellees in the present case. The words in the Inman will were very near the same as those used in the present case. The seventh article in the Inman will set up a marital trust for the widow in language as follows:

An amount which shall equal one-half (1/2) in value of my adjusted gross estate, as that term is defined in Section 812(e)(2) of the United States Internal Revenue Code, as amended, 26 U.S.C.A. § 812 (e) (2), said one-half (1/2) to be reduced, however, by the aggregate ... passing ... to my said wife otherwise than by the terms of this article.

The foregoing language is almost identical to the language in the case before us. In Inman the guardian for a minor son protested the distribution of assets in kind to the widow on the grounds that the assets had greatly appreciated in value since the evaluation for federal estate tax purposes was made. The court overruled the protest and allowed the assignment of assets to the widow to stand. Therefore, this same wording has clearly been held to be a fractional bequest rather than a pecuniary one.

There is a comprehensive annotation of “specific percent” or “proportion” of estate or property in 87 ALR 3d 605. A large percent of the cases analyzed in this annotation are worded almost identically to the will before us. There seems to be very little argument that such bequest is fractional or percentage rather than pecuniary or dollars and cents. I will not burden this dissent with the many cases reported in the above annotation.

The same question before us was presented in In re Penney’s Will, 43 Misc. 2d 517, 251 N.Y.S. 2d 490 (1964), wherein it was said:

Respondents herein have taken the position that the language used in the will is in the nature of a pecuniary bequest, and therefore not subject to appreciation subsequent to the estate tax evaluation; that the gift was capable of exact computation when the adjusted gross estate was determined and is consequently a legacy of a fixed amount.

This is the argument made by the appellees in the.case before us. The wording of the bequest in Penney was essentially the same as in the case before us. In Penney the surviving spouse same was in the case before us. In Penney’s the surviving same as in the case before us. In Penney’s the surviving spouse transferred to himself shares of the value of one-half of the adjusted gross estate, less the amount passing outside the will. The appellate court decided the language was ambiguous and looked outside the will to determine the intent of the testatrix. The court finally approved the treatment of the bequest as a fractional one in quoting from another case which stated:

The results indicate a constructional preference for the percentage or fractional type of ‘marital deduction trust’.

The court then approved the distribution in kind thus allowing the widower to participate in the appreciated value of the estate. The wording of the Penney will was in part as follows:

(a) One-half (1/2) of the value of my adjusted gross estate (as defined in the United States Internal Revenue Code), and as finally determined for Federal estate tax purposes, less
(b) The value of all interests in property, if any, which pass or have passed ... otherwise than under this will...

The Penney language is by far more similar to a pecuniary bequest than the one in the present case which specifically allows the widow to select .. assets of my estate, to be selected ... in an amount which, when added to any other property which is passed or will pass to my wife independently of this bequest ... which will equal one-half of my adjusted gross estate as defined for federal estate tax purposes in the Federal Internal Revenue Code. Only assets that qualify for the marital deduction shall be available for selection ... fulfillment of this bequest.”

The case which I think is the most clear and simple and presents exactly the same problem as we face is that of In re Nicolai’s Estate, 373 P. 2d 967 (Ore. 1962). The Oregon Supreme Court sitting in banc unanimously held the bequest to be a fractional interest of the estate. The exact words of the bequest were as follows:

I give and bequeath to my wife, ETHEL NICOLAI, if she survives me, a portion of my estate equal in value to the maximum marital deduction allowable in the determination of the federal estate tax upon my estate, less the value of any property which passed or is deemed to have passed to my wife under other provisions of this will or otherwise. ... I authorize and empower my executors in their discretion to select the property to be transferred and delivered to my wife in accordance with this paragraph. ...

This case was a contest between a widow and her children upon the interpretation of the foregoing marital trust bequest. The court held that it was the intention of the testator to create a fractional interest rather than a pecuniary legacy.

In the many cases I have examined where the wording of the legacy was essentially the same as that in question here, the large majority of the cases have held the language to constitute a fractional interest of the estate. The question becomes rather critical when the assets of the estate appreciate in value during the time the estate is under probation. In cases where the legacy is held to be pecuniary the widow or widower is not allowed to share in the appreciation of the assets. On the other hand, if it is held to be a fractional interest, the surviving spouse will receive a proportionate share of the increase in value. This would also hold true for the income produced by the estate during probate. It appears to me that the majority opinion is erroneously based upon the premise that the testator preferred to save taxes over taking care of his wife. As I see it, all four corners of the will point to the testator having in mind to provide for his wife first and then take advantage of any tax provisions in the Internal Revenue Code. In my opinion, William Herbert Hanna desired most of all that his wife receive enough income to continue living in the manner to which she was accustomed and in so doing he felt that she should receive a fractional interest of his estate. Any other interpretation would be to defeat the intent of the decedent.


author: John I. Purtle, Justice.

text:
    Charles MOORE et al v. Karen MEARS et al
    81-123
    619 S.W. 2d 662
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981
    [Rehearing denied September 14, 1981.]

      Q. Byrum Hurst, Jr., for appellants.

      Wood, Smith & Schnipper, for appellees.
   John I. Purtle, Justice.

On July 14, 1980, the County Court of Garland County held a contested hearing on the matter of forming Piney Sewer Improvement District No. 32 of Garland County. On the same date the court approved and issued an order forming the suburban improvement district. The protestants filed an appeal in the county court. On December 1, 1980, the Circuit Court of Garland County dismissed the appeal at the request of the appellees. On appeal it is argued that the circuit court erred in dismissing the appeal. We do not agree with the appellants’ contention for reasons to be stated later in this opinion.

The facts reveal that the county court heard the petition for formation of Piney Sewer Improvement District No. 32 of Garland County and issued an order of approval. On August 5, 1980, the protestants filed a notice of appeal in the county court in which they designated the entire record and stated that the transcripts had been ordered from the county clerk. The appellants took no further action until the appellees filed a motion to dismiss in the county court on September 22, 1980. The following day appellants filed an affidavit in the county court as required by Ark. Stat. Ann. § 27-2001 (Repl. 1979). On November 19, 1980, the county judge held a hearing after which an order was issued holding that the appeal was filed in the time and manner required by law but that the county court lacked jurisdiction to decide the issues on appeal. The county court further held that the Garland County Circuit Court would be the proper place for the lodging of transcripts for the perfection of an appeal from the county court to the circuit court. The order denied the appellees’ motion to dismiss and held that it would be in the best interest that a trial de novo be held in the Garland County Circuit Court. On November 24, 1980, the appellees filed a motion in the Garland Circuit Court asking that the appeal be dismissed. The Circuit Court of Garland County entered an order of dismissal on December 1, 1980. The dismissal order recited that the motion to dismiss was being treated as a petition for certiorari to review the action of the county court. The court then held that the protestants did not perfect the appeal within 30 days from the date of the entry of the original county order. It was the further holding of the court that the matter was governed by Ark. Stat. Ann. § 20-702 (Repl. 1968). Finally, the circuit court held that the order by the county court on November 19,1980, was in error and should be vacated and that the order entered by the county court on July 14, 1980, was a valid order which established Piney Sewer Improvement District No. 32 of Garland County, Arkansas.

This appeal is reduced to the single question of whether appellants used the proper procedure in appealing from the Garland County Court order approving the suburban improvement district. Appellants rely upon Ark. Stat. Ann. § 27-2001 (Repl. 1979) which states:

Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court relating to any bond issue at any time within thirty (30) days after the rendition of the same, and from all other final orders and judgments of said court at any time within six (6) months after the rendition thereof, either by the court rendering the order or judgment or by the clerk of the circuit court of the proper county, with or without supersedeas, as in other cases at law, by the party aggrieved filing an affidavit and prayer for an appeal with the clerk of the court in which the appeal is taken; and upon the filing of such affidavit and prayer the court rendering the judgment or order appealed from or the clerk of the circuit court shall forthwith order an appeal to the circuit court at any time within thirty (30) days after the rendition of the judgment or order appealed from in the case of a judgment or order relating to a bond issue and at any time within six (6) months after the rendition of any other judgment or order, and not thereafter. The party aggrieved, his agent or attorney shall swear in said affidavit that the appeal is taken because the appellant verily believes that he is aggrieved, and is not taken for vexation or delay, but that justice may be done him.

On the other hand, the appellees rely upon Ark. Stat. Ann. § 20-702 (Repl. 1968) which states in pertinent part:

... Any petitioner or any opponent of the petition may appeal from the judgment of the County Court creating or refusing to create the district, but such appeal must be taken and perfected within thirty (30) days. If no appeal is taken within that time, the judgment creating the district shall be final and conclusive upon all persons. ...

It is apparent that there is some conflict between these two statutes. We note from the beginning that § 20-702 (Act 4l of 1941) is a part of that chapter dealing exclusively with suburban improvement districts. The general statute governing appeals from county courts is § 27-2001 and has been basically on the records since 1883. In 1965 it was amended in part to reduce to 30 days the time in which appeals of county court orders relating to bond issues must be taken but left intact the general 6-month provision for other appeals. This may well have been an effort on the part of the legislature to cause this statute to be consistent with the one previously quoted on suburban improvement districts. Both statutes now require an appeal within 30 days, if it is a matter involving a bond issue or a suburban improvement district.

Since § 20-702 is specific legislation relating to suburban improvement districts, we believe it should control in the event of conflict with other statutes. We have held that special statutes relating to drainage districts supersede the general statute. Drainage District No. 1 v. Rolfe, 110 Ark. 374, 161 S.W. 1034 (1913); Chicago Mill & Lumber Co. v. Drainage District, 117 Ark. 292, 174 S.W. 566 (1915).

Having decided that § 20-702 is controlling, we then turn to the issue of whether appellants perfected their appeal in a timely manner. Since § 20-702 does not specify the manner of perfecting appeal, we must look to the general statute which is § 27-2001. This statute requires that the aggrieved party file an affidavit and prayer for an appeal with the clerk of the court in which the appeal is taken. We have held that the spirit and purpose of this statute has been attained by the affidavit and prayer being timely filed with the county court or the clerk of the circuit court. Wollard v. Light, Judge, 222 Ark. 287, 258 S.W. 2d 886 (1953). Such holding remains applicable today in those matters which do not relate to a bond issue or suburban improvement district.

In the case of St. Louis & Iron Mountain Southern Railway Co. v. Drainage District, 138 Ark. 131, 211 S.W. 168 (1919), the sole question presented to this court was whether an order of the county court granting an appeal was made within the time provided by law. The decision dealt with § 27-2001 which was then codified as Kirby’s Digest § 1487. The subject matter of the lawsuit was whether a timely appeal had been perfected from an order relating to a drainage district. The act creating the authority for the districts had shortened the time of appeal as set out in § 27-2001 from 6 months to 20 days. The court, relying on Chicago Mill & Lumber Co. v. Drainage District, supra, stated that the 20 days was tantamount to saying that in order to perfect an appeal it was necessary to present the motion for appeal either to the county court rendering the decree or to the circuit clerk for allowance within 20 days. There we held that unless the motion for appeal was presented and the order made within the 20 days, the county court or the circuit clerk was without right to enter an order thereafter. We finally held that the only requirement for an appeal were that an affidavit and prayer for appeal should have been filed and the prayer presented to either the county court or the circuit clerk within the 20 days.

Having reached the conclusion that the 30-day time within which to appeal is controlling, we now hold that the appellants failed to perfect the appeal either with the county court or the circuit court within 30 days. The appellants filed the affidavit to perfect the appeal as required by § 27-2001 on September 23, 1980, which was beyond 30 days from the date of the order approving formation of the district. The affidavit required by this statute may be waived by the opposing party. However, if there is an objection, it is jurisdictional. Wulff v. Davis, 108 Ark. 291, 157 S.W. 385 (1913); Tuggle v. Tribble, 173 Ark. 392, 292 S.W. 1020 (1927). In the present case the appellees rather vigorously objected to the late filing of the affidavit.

Affirmed.


author: Steele Hays, Justice.

text:
    Boyd Henry SANDERS and Pauline SANDERS v. James WHEATON d/b/a NEUMAN DRILLING CO. and COVINGTON FARMS, INC.
    81-105
    619 S.W. 2d 674
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      Hale, Fogleman & Rogers, for appellants.

      Mooney & Boone and Barrett, Wheatley, Smith & Deacon, for appellees.
   Steele Hays, Justice.

Boyd Henry Sanders and Pauline Sanders brought suit for damages for a personal injury sustained by Sanders while employed by Covington Farms, Inc., appellee. Sanders injured his back helping James Wheaton, also an appellee, lift a piece of machinery weighing some 300 lbs., known as a “gear drive” and used in connection with a rice well. Pauline Sanders claims loss of consortium due to the injury and the two suits were consolidated for trial.

The testimony establishes that on May 9, 1973, Robert L. Covington asked Wheaton to install the gear drive on a rice well which had been repaired by Wheaton’s company, Neuman Drilling Co. Wheaton was short handed and Covington instructed him to obtain the necessary assistance from Boyd Sanders. Wheaton drove to the Covington farm with the gear drive in a pickup truck and picked up Sanders. Sanders accompanied Wheaton to the well site and he contends that as the two men were in the process of lifting the gear drive from the truck to the well head, the drive shaft turned in his hands causing the gear drive to twist, become unbalanced, and its entire weight shifted to him injuring his back. Wheaton testified in contrast that the gear drive did not fall as Sanders described and that Sanders professed no injury. There were no other witnesses to the incident. The jury returned a verdict in favor of the defendant-appellees. We can find no merit in appellants’ points for reversal.

Appellants’ first point charges that the court erred in allowing Wheaton to testify that he and only one other man had manually installed gear drives “hundreds of times” before. Appellants argue that admitting such testimony is error since it allows the defendant to absolve himself of any negligence merely by proving that his conduct at the time of this particular incident was in conformity with his past practices. We disagree. During appellants’ case-in-chief, the fact was fully developed that hoisting equipment and additional farm hands were available to assist in the placement of the gear drive. We believe, therefore, the evidence offered by the appellees could properly be admitted for the purpose of rebutting the inference that the appellees were negligent in not using additional men or equipment. Uniform Rules of Evidence, Rule 105, Ark. Stat. Ann. § 28-1001, et seq. (Repl. 1979), clearly contemplates that evidence may be admitted for a single purpose. We will not reverse the trial court’s decision in admitting the evidence objected to if, for any reason, the evidence can be properly admitted.

Second, the appellants argue that the trial court erred in failing to instruct the jury that Covington Farms had a duty to warn Sanders of any dangers involved in the task of which the employee was unaware. We do not agree that the court erred in refusing the instruction. The duty to warn an employee of risks involved in the performance of his tasks arises out of the superior knowledge of the employer. J. L. Williams & Sons, Inc. v. Tompkins, 195 Ark. 1146, 114 S.W. 2d 845 (1938). However, as this court stated in Benedum-Trees Oil Co. v. Sutton, 198 Ark. 699, 130 S.W. 2d 720 (1939):

It is well settled that an employee assumes all the ordinary risks and hazards incident to his employment and where his knowledge thereof equals or exceeds that of the employer there is no liability. At 702.

In the present case, there was no evidence offered that Covington Farms had superior knowledge of any risks involved in setting the gear drive on the well and the task itself appears rather commonplace. It is true that Covington Farms is in the business of rice production which required repairs to its wells from time to time, still, it was not demonstrated that Covington Farms had ever repaired or replaced the gear drives or that the inherent nature of the undertaking implied a risk. In sum, there is no evidence to attribute superior knowledge to the employer, Covington Farms, of a risk of which the employee might be unaware.

Third, the appellants argue that the trial court erred in failing to give appellants’ requested instruction number 1. We disagree. The proposed instruction reads:

It was the duty of Covington Farms, Inc. to use ordinary care to provide Boyd Sanders with, reasonably safe and suitable tools and machinery or sufficient assistance with which to do his work.

The instruction actually given by the court reads:

It was the duty of Covington Farms, Inc. to exercise reasonable care in providing Boyd Sanders with sufficient assistance to enable him to carry out his assigned work with reasonable safety to himself.

Assuming that appellants were entitled to such an instruction, we believe that the instruction as given adequately states the issue sought by appellants’ proposed instruction. As we have stated, a party is not entitled to his or her particular preference in the wording of the instruction, and a trial judge is not required to say the same thing in different words. Butler v. State, 261 Ark. 369, 540 S.W. 2d 651 (1977), and Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979). The result might be different if this were a case in which the court refused to give a clearly applicable Model Instruction. Boyd & Smith v. Reddick & Twist, 264 Ark. 671, 573 S.W. 2d 634 (1978). But here we find no error in the court’s preference for its own language.

Fourth, the appellants argue that the trial court erred in failing to instruct the jury that any duty owed by Covington Farms to its employee could not be delegated to another. This argument fails for three reasons. One, as noted above, the record fails to reveal any superior knowledge on the part of Covington Farms creating a duty to warn the appellant. J. L. Williams & Sons, Inc. and Benedum-Trees Oil Co., above. Two, in the absence of such a duty, the only remaining issue was whether there was a duty to provide a safe means of accomplishing the task. But we believe that the instruction given by the court sufficiently addressed that issue, as we have said. To add a separate instruction that such a duty was nondelegable would have been surplusage, and any objections to the failure to state the non-delegability of such a duty should have been made in an objection to the instruction that was given by the court. And third, even if we were to find error as alleged under this argument, we do not believe that within the context of this case the error would be grounds for reversal. The verdict rendered by the jury found both Covington Farms and James Wheaton, d/b/a Neuman Drilling Company wholly free of any negligence. It is obvious from the verdict that the jury did not in fact shift the duties of Covington to Wheaton since it found Wheaton wholly free of negligence. The appellants’ arguments would have some weight if the jury had found Covington free of negligence while finding Wheaton to have been negligent, since an assumption could then be drawn that the jury had ignored the trial court’s instruction as to Covington’s duty and had shifted that duty to Wheaton. But neither Coving-ton nor Wheaton was found negligent and we cannot say that the alleged error was so prejudicial as to require a reversal.

Fifth, the appellants argue that the court erred in instructing the jury that each person is presumed to know more about his own strength and to be better informed about his ability to lift than a stranger. At trial, appellants objected to this instruction on the grounds that such an instruction is not supported by the facts elicited. We disagree.

Testimony was elicited as to the weight of the gear drive; we believe that this sufficiently placed the issue before the jury so that the court could properly instruct the jury as to the presumption stated. An instruction of this kind is supported by the law of this state. See, Smith v. Snider, 247 Ark. 342, 445 S.W. 2d 502 (1969).

In this appeal, the appellants expand considerably the argument made at trial as to the instruction complained of. Appellants now argue that the instruction prejudicially focused on a single fact within the case, that the instruction was conclusory and invaded the province of the jury. We do not consider these arguments since they are raised for the first time on appeal. Hubbard v. University of Arkansas Medical Sciences, 272 Ark. 500, 616 S.W. 2d 10 (1981).

Finally, the appellants argue that this case should be reversed on the basis of a remark made by the appellees’ attorney in closing argument to the jury:

I don’t believe I have been in a court where the evidence was so weak.

Upon objection by appellants’ counsel, the court admonished the jury as follows:

Ladies and gentlemen, you were previously instructed that the argument, remarks and statements of the attorneys are not evidence. You are not to base your verdict upon the personal opinion of the attorneys but it is for you to determine where the weight of the evidence lies.

We regard the admonition as sufficient to remind the jury that remarks of counsel are not evidence.

Judgment affirmed.


author: Joseph C. Kemp, Special Justice. Darrell Hickman, Justice, Richard B. Adkisson, Chief Justice,

text:
    BOARD OF TRUSTEES OF MUNICIPAL JUDGES AND CLERKS FUND, CITY OF LITTLE ROCK, being William R. BUTLER, Chairman, Webster HUBBELL, Jack MURPHY, and Jane CZECH, Members v. Joann BEARD
    80-188
    620 S.W. 2d 295
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981
    [Rehearing denied September 21, 1981.]

      William R. Wilson, Jr., P.A., and House, Holmes & Jewell, PA., by. Philip E. Dixon, for appellant.

      R. Jack Magruder, III, City Atty., by: Sherry S. Means, for appellee.
   Joseph C. Kemp, Special Justice.

This appeal presents the issue of whether Act 155, Acts of Arkansas of 1979 is constitutional when tested against the mandate of the people prohibiting local and special legislation as found in the 14th Amendment to the Constitution of Arkansas of 1874.

Appellee, as clerk of the Municipal Court, Criminal Division, of Little Rock, Arkansas, by her letter dated July 24, 1979 addressed to the Appellant, Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock, requested retirement benefits to be effective beginning July 28, 1979 pursuant to authority of the provisions of Act 155, Acts of Arkansas of 1979.

The record reflects that Appellee served as a nonuniform employee of the City of Little Rock from September 23, 1958 through December 5, 1969, and further, that she had been employed as a Municipal Court clerk for the Little Rock Municipal Court (Criminal Division) from December 8, 1969 through July 27, 1979, for a total employment of between 20 and 21 years. Appellant petitioned the Circuit Court of Pulaski County for Declaratory Judgment presenting the question of constitutionality of said Act 155, and Appellee filed a Cross-petition for the same relief. The Lower Court found and declared that the Appellee had served as a former Municipal Court clerk in excess of eight years and was employed as a nonuniform employee and Municipal Court clerk for a combined total of more than twenty years; that Act 155 relating to the courts and administration of justice was neither local nor special in nature, particularly where the Act applies to all officials in a general category; that there are municipal courts and municipal court clerks in Little Rock, North Little Rock, Jacksonville and Sherwood, all in Pulaski County which has a population of 150,000 or over; that the duties of municipal court clerks are necessary to the administration of justice or pertain or relate to the administration of justice; that Act 155 is constitutional and does not violate Amendment 14 of the Arkansas Constitution and that the Appellee was entitled to her retirement funds, together with interest on all accrued payments until received by her.

Appellant asserts that Act 155 is local and special legislation and violates the provisions of Amendment 14 to the Constitution of Arkansas.

We do not address the question of whether Act 155 is local legislation for the reason that we find the Act in question to be special legislation in violation of Amendment 14, and therefore reverse the Lower Court holding on this point.

Amendment 14 to the Constitution of Arkansas of 1874 provides:

“The General Assembly shall not pass any local or special act. This Amendment shall not prohibit the repeal of local or special acts.”

This Court has said:

“The language of the Amendment is plain and unambiguous and its meaning clear, disclosing the intention of the people in adopting it, and dispensing with the necessity of seeking other aids for its interpretation. The restrictive provisions of the Constitution on the legislative power relative to the passage of local or special legislation, leaving its exercise to the discretion of the Legislature, has been so disregarded and abused as to create an intolerable condition. Numerous measures were enacted in all sessions of the General Assembly, general in their terms and nature, and from the operation of which from one or more of the counties of the State were excepted, and this Amendment was adopted to remedy the evil, and the poiwer of the General Assembly to enact local or special legislation was withdrawn, the General Assembly being prohibited by its terms from passing any local or special Act.” Webb v. Adams, 180 Ark. 731, 23 S.W. 2d 617 (1929)

This Court has said many times:

“Legislation may be roughly classified as general, special or local. A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less than the whole.” Thomas v. Foust, 245 Ark. 948, 435 S.W. 2d 793 (1969)

It is a well known rule of this Court that statutes are presumed to be framed in accordance with the Constitution, and should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932). We therefore must determine whether Act 155 of 1979 is prohibited by Amendment 14 to the Constitution. Is it general or is it special or local?

Act 155, Acts of Arkansas of 1979, amended Subsection (b) of Section 4 of Act 19 of 1965, as amended, same being Arkansas Statutes § 22-944 and reads as follows:

“SECTION 1. Subsection (b) of Section 4 of Act 19 of 1965, as amended, the same being Arkansas Statute 22-944 (b), is hereby amended to read as follows:
‘(b) Hereafter, any Clerk of a Municipal Court to which this Act applies, appointed by the Judge or Judges of such Court, who shall attain the age of sixty (60) years and who shall have served in office as clerk for at least ten (10) years, or who shall attain the age of sixty-five (65) years and who shall have served in the office for at least eight (8) years, or any such clerk who shall have served in office for at least twenty (20) years, irrespective of age, and any such clerk who shall have served twenty (20) or more consecutive years, irrespective of age, as a city employee for the city in which he (she) clerks, with eight (8) or more of those years served in the office of Municipal Clerk, shall be eligible to receive retirement benefits provided by this Act, and if such clerk resign, retire from office, or be succeeded in office by another clerk, said clerk shall receive retirement pay for and during the remainder of his (her) natural life in an amount equal to one-half (1/2) of the salary payable to him (her) at the time of resignation, retirement or succession in office.’ ”

An examination of the subsection of the Statute here involved as it existed prior to the passage of Act 155 reflected three classifications for municipal court clerks pertaining to eligibility for retirement, and they were as follows:

a) who shall attain the age of 60 years and who shall have served in office as clerk for at least 10 years; or,
b) who shall attain the age of 65 years and who shall have served in office for at least 8 years; or
c) any such clerk who shall have served in office for at least 20 years, irrespective of age.

Act 155 of 1979 added a fourth classification of eligibility for municipal court clerk retirement as follows:

Any such clerk who shall have served 20 or more consecutive years, irrespective of age, as a city employee for the City in which he (she) clerks, with eight (8) or more of those years served in the office of Municipal Clerk.

Act 155 creates four separate and distinct classifications prescribing eligibility for retirement of municipal court clerks in cities and towns situated in counties of more than 150,000 population, which at the time of its passage included only Pulaski County, Arkansas. Can it be said that all municipal court clerks within Pulaski County are treated equally under the provisions of the four separate classifications? Are these classifications reasonably related to the purpose of the legislation, or are such classifications arbitrary and unreasonable? To ask the question of whether all such clerks are treated equally under these separate classifications is to answer it. Clearly they are not, and there can be no rational reason in support of a contrary conclusion. The fourth classification provided by Act 155 was apparently intended to separate the Appellee from other municipal court clerks in Pulaski County. Further, the Appellee herself was convinced that the Act was specifically enacted to make her eligible for immediate retirement benefits. We note her letter requesting retirement dated July 24, 1979, where she states:

“You will find attached a copy of my bill.”

All municipal court clerks in Pulaski County, and in all other counties of the State for that matter, have the same duties, authority and responsibility, functioning as a distinct essential arm of their respective courts, and while this Court has held that legislation pertaining to the judiciary, though dealing differently among counties and courts, is general as opposed to local or special for the reason that the judicial system for the State is an entity in and of itself, whole and not separate, nevertheless this Court has also held that even in dealing with the judiciary, all which should fall equally within a classification must be included and not separated out as in the case of Act 155. See Beaumont v. Adkisson, 267 Ark. 511, 593 S.W. 2d 11 (1980).

The people have spoken clearly in the passage of Amendment 14. It contains no exceptions. To allow exceptions is to do damage to that amendment by allowing the erosion of the particular exception to destroy the very substantive law.

Reversed.

Holt and Purtle, JJ., not participating.

Hickman, J., and Special Justice Jim Burnett concur.

Adkisson, C.J., and Dudley, J., dissent.

Darrell Hickman, Justice,

concurring. I agree with the results reached in this case. The most violated provision of the Arkansas Constitution is Amendment 14 which reads: “The General Assembly shall not pass any local or special acts.” Perhaps it is in the nature of legislatures to want to pass local and special legislation to please their constituents. It should be the nature of this court to routinely strike down those acts as contrary to Amendment 14. Our record in that regard has not been consistent. This court has carved out an exception to Amendment 14. For the benefit of the courts, this court has consistently found that special legislation is valid if it is essential to the administration of justice. Amendment 14 does not say “The General Assembly shall not pass any local or special acts except for the administration of justice." This court’s finding that such an exception exists is unwarranted, improper, and contrary to the constitution and should cease. Those cases which uphold that exception should be overruled without discussion because they are wrong legally and this court cannot in good conscience apply Amendment 14 to everyone except the courts. Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932); McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789 (1945).

There is no valid reason given why courts should be excepted from that provision. Laws can be passed which apply generally to all court clerks, judges, and to the administration of justice. To continue to support that exception simply because it has been recognized for years is also no good reason. Those decisions have not become rules of property. To continue to follow them without good cause is to avoid the continuing responsibility this court has to guard the constitution.

The act in question applies only to Pulaski County and for that reason it is a local act. There is no doubt that it was passed for Joann Beard. That is conceded. We should clearly put behind us once and for all any toleration of such exceptions and local legislation.

Special Justice Jim Burnett joins in this concurrence.

Richard B. Adkisson, Chief Justice,

dissenting. This is an appeal from a declaratory judgment holding that Act 155 of 1979 does not violate the proscription against special or local legislation found in Amendment 14 of the Arkansas Constitution.

I dissent from the majority holding that the act in question is special legislation within the meaning of Amendment 14 to the Constitution of Arkansas.

Act 19 of 1965 as Amended is codified as Ark. Stat. Ann. § 22-941 to -948.1 (Supp. 1981). Before being amended this Act provided for the retirement of municipal court judges and clerks in counties having a population of 150,000; judges were allowed to retire after 15 years at age 65 or after 20 years irrespective of age; clerks were allowed to retire after 20 years irrespective of age.

Act 102 of 1969 amended the original Act (Act 19 of 1965) by making its provisions applicable to counties having a population of 150,000 and two or more municipal courts. Although the provision was retained for retirement of judges and clerks after 20 years irrespective of age, the provisions for judges’ retirement at a specific age was lowered from 65 to 50 years and the provision concerning required years of service was raised from 15 to 16 years. Also, clerks were further allowed to retire after ten years of service at age 60.

Act 637 of 1975 further amended Act 19 of 1965 as Amended to allow clerks to retire after eight years of service at age 65.

Act 155 of 1979 further amended the Act as amended to allow clerks to retire after 20 years, irrespective of age, with eight or more of those years served in the office of municipal clerk and with the balance of the required time served as a city employee.

Amendment 14 of the Arkansas Constitution provides that “The General Assembly shall not pass any local or special act.” Although the terms are sometimes used synonymously, “special” relates to persons or things and “local” relates to political or geographic units. Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1949); also see Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905).

The Arkansas Supreme Court has consistently held that acts which relate to the administration of justice are neither “special” nor “local.” Waterman, supra; Mears v. Hall, 263 Ark. 827, 569 S.W. 2d 91 (1978). However, in Beaumont v. Adkisson, 267 Ark. 511, 593 S.W. 2d 11 (1980) this Court did carve out a limited exception to this rule in holding Act 629 of 1979 unconstitutional where the terms of the Act applied to one circuit judge out of five in the Sixth Judicial Circuit; the language indicated that the decision would be otherwise “if it were held to be an Act relating generally to all circuit courts [judges] in the Sixth Judicial Circuit. ...”

This Court has specifically held that acts creating municipal courts constitute general legislation since these courts are a part of the judicial system. See Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915) where it was held that an act establishing municipal courts in Little Rock and North Little Rock was not unconstitutional under Amendment 14. Furthermore, Waterman held:

Statutes establishing or abolishing separate courts relate to the administration of justice, and are not either local or special in their operation. Though such an act relates to a court exercising jurisdction over limited territory, it is general in its operation, and affects all citizens coming within the jurisdiction of the court.

Finally, this Court held in Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932) that a clerk is vital to the operation of a court, and, in upholding the constitutionality of a legislative act providing for the appointment rather than the election of the Pulaski County Chancery Court Clerk, stated:

The majority of the court is also of the opinion that the act is not local or special because it is general in its terms, and is not based upon an unreasonable or arbitrary classification. The act affects every one alike coming within its general terms, and is not to be nullified merely because under present conditions only the county of the seat of the State government happens to fall within the general classification.

In this case the majority holds that Act 155 violates Amendment 14 because it is special legislation. In doing so they acknowledge that every act of the legislature carries a strong presumption of constitutionality, and that there must be a clear incompatibility between the act and the constitution before it is held unconstitutional. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973); Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857 (1974). This presumption of constitutionality fully applies when a statute is attacked as local or special, and, where it is doubtful whether the act violates the constitution the doubt must be resolved in favor of constitutionality. State v. Lee, 193 Ark. 270, 99 S.W. 2d 835 (1936); Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498 (1965).

Although it is stipulated in the record that employees from at least three other municipal courts in the county were affected by the Act, the majority boldly assert that Act 155 “was apparently intended to separate the Appellee from other municipal court clerks in Pulaski County.” To substantiate this finding the majority can only point to the appellee’s statement in her letter of retirement referring to the act in question as “my bill.” It is incomprehensible for the majority to rely upon this statement to derive the purpose and intent of the legislature, and to do so is illogical and judicially irresponsible. How can this Court indulge such an assumption when it is acknowledged that the Act applies to Pulaski County and all of its five municipal courts? If there is one speck of evidence in the record or elsewhere to support the majority’s invention of legislative intent, I call upon them to set out this evidence in their opinion.

This legislation is based upon a valid classification, related to the administration of justice, and affects equally all persons who come within its range. The judgment of the lower court should be affirmed.


author: O. H. Storey, III, Special Justice. Peter B. Heister, Special Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION et al v. NATIONAL ADVERTISING COMPANY
    80-190
    619 S.W. 2d 678
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      Thomas B. Keys and Charles Johnson, for appellants.

      Paul P. Henson, for appellee.
   O. H. Storey, III, Special Justice.

On appeal, the Arkansas State Highway Commission alleges that the Circuit Court erred in determining that a hearing held by it concerning an application for billboard permits by National Advertising Company was an adjudication and that it erred in not remanding the decision of the Commission for adjudication. We agree and reverse and remand.

In 1978, National Advertising Company applied to the Arkansas State Highway Commission for permits to erect and maintain six outdoor advertising signs in Pulaski County. These applications were submitted to the Coordinator of Environmental Control of the Highway Department and were denied on June 8, 1978. On June 13, 1978, National Advertising Company requested a hearing and, pursuant to that request a hearing was held on June 23, 1978 by Mr. Gip I. Robertson, Jr., Assistant to the Director. On June 30, 1978, National Advertising filed suit in Pulaski County Circuit Court seeking review of the Commission’s denial. That suit was dismissed by National Advertising Company without prejudice.

On February 15, 1980, National Advertising Company submitted six new applications for the same locations in Pulaski County. The Arkansas State Highway Commission returned the applications for reasons which National Advertising contended were frivolous. The Highway Commission alleges that the applications were not properly submitted and that the applications were returned requesting certain written verification. On March 13, 1980, National Advertising Company filed its suit in the Circuit Court of Pulaski County alleging that the Commission unlawfully, unreasonably and capriciously failed, refused and consistently delayed the granting of a hearing and asking that the Court enter an Order requiring the Commission to grant it a hearing. National Advertising amended its Complaint asking for an Order requiring the Commission to issue its permits and, in the alternative, for an order requiring the Commission to conduct a hearing in accordance with the Administrative Procedure Act.

In the Circuit Court, the Highway Commission took the position that the review provided by Mr. Robertson was an informal conference and was not an appealable adjudication under the Act; National Advertising argued that it was an adjudication, even though it did not meet the formal requirements of a hearing. No record was available from the Highway Commission. The hearing was conducted prior to this Court’s ruling in Arkansas State Highway Commission v. Wood, 264 Ark. 425, 572 S.W. 2d 583 (1978), which held that the Administrative Procedure Act was applicable to the Arkansas State Highway Commission.

National Advertising filed a Motion in Circuit Court to “Correct the Record and For Review” and in support of its Motion recreated the record by submitting Affidavits and by submitting a Deposition of the Traffic Engineer of the Highway Commission. Upon review of this recreated record, the Circuit Court held that the hearing provided by the Highway Commission in 1978 was an adjudication and, on the merits, reversed the Highway Department’s decision and ordered it to issue the six sign permits to National Advertising Company.

It is unclear from the record as to who was responsible for the obvious breakdown in procedure. National Advertising argues that the Highway Commission is at fault for not providing a proper hearing and for not providing a record of the procedure. The Highway Commission, on the other hand, argues that the procedure adopted by National Advertising with respect to its second submission of applications was not proper and that the Circuit Court review was premature.

This case presents a classic example of why the procedure set forth in the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq. should be followed. The record is totally inadequate for review. The focal point for judicial review should be an administrative record already in existence, not some new record made initially in the reviewing Court. If a reviewing court finds the record inadequate to support a finding of reasoned analysis by an agency, the matter should be remanded to the agency for reconstruction of the record. Likewise, if the Court finds that the agency has acted arbitrarily in refusing to provide a procedure for a hearing, the reviewing court should order that a hearing be conducted.

To try and review the substantive decision of the Highway Commission concerning denial or grant of the sign applications would be purely a matter of speculation which is prohibited. Gordon v. Cummings, 262 Ark. 737 (1978).

We have previously held in Arkansas State Highway Commission v. Wood, supra, that the Administrative Procedure Act is applicable and that applicants, such as National Advertising Company, are entitled to a hearing concerning these property rights.

This matter is remanded to the Circuit Court with direction that it remand it to the Highway Commission for adjudication in accordance with the Administrative Procedure Act.

We cannot say that the Trial Court erred in denying the Highway Commission’s Motion to Stay Proceedings pending reimbursement of expenses and the Circuit Court’s decision on this point is affirmed.

Adkisson, C.J., and Hickman, J., not participating.

Peter Heister, Special Justice, dissents.

Peter B. Heister, Special Justice,

dissenting. I am mindful of the policy which requires judicial review to be based upon a record created by the administrative agency; however, that policy does not address the issue presented here. In this case the Highway Commission has adopted the position that as there was no hearing there is no reviewable record. There is no doubt that Appellee was entitled to a hearing pursuant to the Administrative Procedure Act. Arkansas State Highway Commission v. Wood, 264 Ark. 425, 572 S.W. 2d 583 (1978). The Commission had provided notice of an “administrative hearing.” Similarly, it announced its findings based in part on that “hearing.” Appellee was entitled to expect that the proceeding it participated in was in fact a hearing and further, that Appellant would provide the record as required. There is no requirement that such a hearing be transcribed. The only requirement is that a record capable of review be maintained and provided. I see no means by which the Appellee could have foreseen that the Commission would not provide the record as required.

The record was not prepared by the trial court. The record was prepared by Appellee and brought to the trial court for review. It was detailed and uncontroverted as to its completeness and accuracy. There is no contention that additional information is available. The trial court had before it the facts on which the Commission relied in denying the applications. The trial court found the record adequate for review. This Court is holding in essence that the record is inadequate for purpose of review. I agree with the trial court. The record appears to contain the facts relied upon by the Commission including the photographs of the areas in question and the expert opinions. I agree further that these facts are an inadequate basis for the Commission’s action. For these reasons I would affirm.