author: John A. Fogleman, Justice. Darrell Hickman, Justice.

text:
    Roger C. MEARS, Jr., County Judge v. Harold L. HALL, Public Defender
    77-424
    569 S.W. 2d 91
    Opinion delivered July 3, 1978
    (In Banc)
    [Rehearing denied September 11, 1978.]

      Jack D. Files, County Atty., and Milton Lueken, Asst. County Atty., for appellant.

      Lee A. Munson, Pros. Atty., by. John Wesley Hall, Jr., Dep. Pros. Atty., and Quorum Court Legal Counsel, for appellee.
   John A. Fogleman, Justice.

On June 28, 1977, the two circuit judges having criminal jurisdiction in the Sixth Judicial District of Arkansas, acting under authority of Act 279 of 1975, entered an order in Pulaski Circuit Court case No. CR-75-938 continuing the operation of the existing Public Defender System. This had the effect of leaving Harold Hall in the status of public defender. In this order, the judges also approved a budget for the operation of the public defender’s office for the fiscal year 1977-1978. Thereafter, on July 26, 1977, the Quorum Court of Pulaski County passed Ordinance No. 63, making an appropriation for the support of the public defender’s office. On August 8, 1977, the Quorum Court of Perry County passed its Ordinance No. 0-46, recognizing the public defender system created by the order entered in Pulaski County by the circuit judges, appropriating $1,750 for its share of t¿e expenses of the public defender, purportedly on the basis of the number of criminal cases handled by the public defender or his staff in each county. In the meantime, the County Judge of Pulaski County had vetoed Ordinance No. 63, but the Quorum Court overrode his veto on August 9, 1977. When salaries of the public defender, deputies and office employees were not paid after the passage of the ordinance, appellee filed his petition for mandamus against appellant as County Judge of Pulaski County to require him to comply with Ordinance No. 63.

In his response appellant contended that the circuit court was without jurisdiction of the petition, because appellee’s remedy was by appeal; that Ordinance No. 63 was unconstitutional under Amendment 55 and Art. 4, § 2 and Art. 6, § 4 of the Constitution of Arkansas; and that the action was premature because Act 246 of 1977 requires that the Quorum Court appropriate funds to pay fees to appointed attorneys after the fees have been set by the circuit court order.

The circuit court granted the writ and appellant brings this appeal asserting four points for reversal. We find no reversible error and affirm.

I

Appellant contends that the trial court erred in denying his motion to transfer the case to another division of the Circuit Court of Pulaski County. This motion was based solely on Ark. Stat. Ann. § 22-114 (Repl. 1962). Appellant contends that the presiding judge of the division of the court had an interest in the case, because he was one of the two judges sitting as a “Public Defender Commission” which created the office of Public Defender and set the salaries which appellee sought to require appellant to pay. In his argument here, appellant contends that the judge to whom the petition was presented was interested in the case in that he and another judge created the Public Defender’s office for the Sixth Judicial District, named Harold Hall as Public Defender, and set the salaries which petitioner sought to require appellant to pay.

Where the presiding judge of a division in which an action is pending is interested in the suit, Ark. Stat. Ann. § 22-114 requires that the suit be transferred to another division of the court. This section and Ark. Stat. Ann. § 22-113 (Repl. 1962) tend to carry out the intention of Art. 7, § 20 of the Constitution of Arkansas. Black v. Cockrill, 239 Ark. 367, 389 S.W. 2d 881. The “interest” which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit. Osborne v. Board of Improvement of Paving Dist. No. 5, 94 Ark. 563, 128 S.W. 357; Foreman v. Town of Marianna, 43 Ark. 324; Ferrell v. Keel, 103 Ark. 96, 146 S.W. 494; Baker v. Odom, 258 Ark. 826, 529 S.W. 2d 138. The circuit judge in this case did not have the interest in the case which would require a transfer of the case simply because an order entered by him was involved or questioned in the case. Such a situation can and does arise in many instances.

II

.Appellant argues that the County Court has exclusive original jurisdiction of all matters pertaining to the disbursement of county funds under Art. 7, § 28 of the Arkansas Constitution and that the only remedy available to appellee was by appeal. He relies upon Art. 7, § 33 of the constitution, which provides that appeals from all judgments of the county court may be taken to the circuit court under such regulations as may be provided by law. Procedures for such appeals are set out in Ark. Stat. Ann. § 27-2001 (Supp. 1977). Basic to this particular argument is appellant’s reliance upon holdings that exclusive original jurisdiction of claims against the county is vested in the county court and that the allowance of claims is a judicial act performed by the county court, not the county judge. Watson v. Union County, 193 Ark. 559, 101 S.W. 2d 791; Campbell v. Little Rock School Dist., 222 Ark. 615, 262 S.W. 2d 267; Logan County v. Anderson, 202 Ark. 244, 150 S.W. 2d 197; Farmer v. Franklin County, 179 Ark. 373, 16 S.W. 2d 10.

This is no longer the case. One of the provisions of § 3 of Amendment 55 to the Arkansas Constitution is that “[t]he County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall. . . authorize and approve disbursement of all appropriated county funds.” The language of Art. 7, § 28 provided that the county court should have exclusive original jurisdiction in all matters relating to the disbursement of money for county purposes.

It is clear to us that the quoted provision in § 3 of Amendment 55 is in irreconcilable conflict with the provision of Art. 7, § 28 relating to disbursement of county funds and that jurisdiction of the disbursement of county funds is not now vested in the county court and that the county judge does not act judicially in passing upon claims against the county. Although we find no ambiguity in § 3 of Amendment 55 and have no doubt about its intent, our view is supported by the provisions of Act 742 of 1977, in which § 78 (B) (2) provides that the powers of the county judge enumerated in § 3 of Amendment 55 shall be performed by the county judge in an executive capacity. That act was passed by the General Assembly in implementation of Amendment 55. Legislative interpretation of constitutional provisions is never binding on the courts, but, if there is any doubt or ambiguity, it is persuasive and entitled to some consideration. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380. It is more significant when most of the members of the General Assembly of 1973 who proposed Amendment 55 voted favorably on Act 742 in 1977. State v. Sorrells, 15 Ark. 664, 675; Sumpter v. Duffie, 80 Ark. 369, 97 S.W. 435.

Appellant argues that, even so, the county judge does not act merely ministerially. Act 742, § 78 (B) (2) itself provides that, before approving vouchers for payment of county funds, the county judge must determine that there is a balance of funds in the pertinent appropriation, that the expenditure is in compliance with the purposes for which the funds are appropriated, that all state purchasing laws and other state laws or ordinances of the quorum court are complied with in the expenditure and that the goods or services for which expenditure is to be made have been rendered and the payment has been incurred in a lawful manner and is owed by the county. There is also a provision that no money shall be paid out of the treasury until the same shall have been appropriated by law and then only in accordance with such appropriation. This act also provides that appeals from the performance or non-performance of any administrative act to be performed by the county judge, acting in his capacity as chief executive officer of the county may be taken to the court of competent jurisdiction as now provided by law. See Act 742, § 83 (2).

It is on the basis of the above provisions that appellant contends that appeal, not mandamus, is the proper remedy. Of course, we have long held that the discretion of an officer in the executive branch of the government cannot be controlled by mandamus. Hardin v. Cassinelli, 204 Ark. 1016, 166 S.W. 2d 258. See also, Lewis v. Conlee, 258 Ark. 715, 529 S.W. 2d 132. It will lie to require such an official to act, or to exercise his discretion. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W. 2d 10; Satterfield v. Fewell, 202 Ark. 67, 149 S.W. 2d 949; Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S.W. 454. See also, Robertson v. Derrick, 113 Ark. 40, 166 S.W. 936; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548.

The discretion of the county judge in the matter is rather limited. In the matter at hand, the county judge under § 3, Amendment 55 had both the power and the duty to authorize and approve disbursement of appropriated county funds. He also had the power and duty to administer the ordinances of the county. If Ordinance 63 and the appropriation made by it were legally proper, and we hold that they were, the county judge had a duty to perform. It appears from the evidence in this case that appellant did not intend to perform this duty. He has contended that the ordinance was unconstitutional ever since its passage, as shown by his veto message. He testified that he would not pay claims under the ordinance until he consulted with his attorneys in regard to the constitutionality of their payment and admitted that he had told the members of the quorum court that he would pay these claims when the courts told him the ordinance was legal and constitutional. He also admitted that he had said something to the members of that court to the effect that, even if they appropriated the money to pay the salaries of the public defender, he would not pay them unless they had an approval from the Supreme Court. The record is clear that appellant had refused to exercise whatever discretion he had in the matter. These circumstances are sufficient to show distinctly that appellant did not intend to do that which appellee sought to enforce by mandamus, and constitute a proper foundation for proceeding by mandamus, if the writ is otherwise justified. Coit v. Elliott, Judge, 28 Ark. 294. When it is manifest that a specific application or request to an officer against whom mandamus is sought would be useless, the remedy may be invoked without first making such a request or application. Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538, 30 ALR 1212. This rule has special application when the respondent official contends that the legislation authorizing the action sought is unconstitutional. 52 Am. Jur. 2d 511, Mandamus, § 187. It was not necessary that a specific request for approval of the disbursement of funds for the salaries in question be made of appellant as a condition precedent to the bringing of this action.

There may well have been a right of appeal by appellee from appellant’s “non-performance” in the matter. Mandamus may not be used as a substitute for an appeal. Mobley v. Conway County Court, 236 Ark. 163, 365 S.W. 2d 122; Calloway v. Harley, County Judge, 112 Ark. 558, 166 S.W. 546; Hutt, Ex parte, 14 Ark. 368. See also, Burks v. Mobley, 245 Ark. 43, 430 S.W. 2d 859. It may be resorted to, however, when the remedy by appeal is incomplete or inadequate. Edmondson v. Bourland, 179 Ark. 975, 18 S.W. 2d 1020.

The rule that mandamus cannot be used to usurp the function of an appeal rests upon a broader limitation on the use of the writ, i.e., that it will not lie where there is an adequate remedy at law. Williamson, ex parte, 8 Ark. 424. See also, Rankin v. Fletcher, 84 Ark. 156, 104 S.W. 933. It is but a corrollary of the rule that the writ will not lie where there is another adequate remedy. 55 CJS 52, Mandamus, § 22; Ferris, Extraordinary Legal Remedies, § 212, p. 245; High’s Extraordinary Legal Remedies (3d Ed.), § 177, p. 188, § 188, p. 198. In order to be adequate as a bar to mandamus, the alternate remedy at law must be one that is plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy by mandamus. Ghent v. State, 189 Ark. 747, 75 S.W. 2d 67. It must be well adapted to remedy the wrong complained of and if it is inconvenient or incomplete, the court exercises its sound discretion in granting or refusing the writ. Huie v. Barkman, 179 Ark. 772, 18 S.W. 2d 334.

It can hardly be said that the remedy by appeal in this situation was adequate or complete. It appears from the budget which was part of the Pulaski Circuit Court order affording the basis for § 3 (b) of Ordinance 63 that the salaries of eight people were involved. Apparently each of them would be required to file or present vouchers periodically, perhaps monthly, for salaries, and appeal each one until a final decision was reached on appeal. The same would have to be done for office supplies, postage, telephone service, etc., if such things were obtainable at all under such circumstances. Utilizing the remedy of appeal would probably result in the demise of the public defender system while that remedy was being pursued.

Ill

Appellant next contends that the trial court erred in granting mandamus because the requirements of Ordinance 63 had not been met. Sec. 1 of the ordinance recognized the Public Defender System created by Pulaski County Circuit Court order in CR-75-938 as the Public Defender System for the Sixth Judicial District. Sec. 2 provides that the System shall be compensated under Act 246 of 1977 at a rate of a minimum of $25 and a maximum of $350 per case for attorney’s fees and up to $100 for investigative services where a lawyer in the Public Defender System is appointed to represent an indigent defendant in the Pulaski County Circuit Court. Sec. 3 (a) provides that Pulaski County shall transfer the funds paid under § 2 into an account on its books. Sec. 3 (b) provides that out of the funds paid to that account, Pulaski County shall disburse semi-monthly salaries to the employees of the System in accordance with the above-mentioned order of the Pulaski Circuit Court and all legally required fringe benefits like retirement and FICA for these employees. Sec. 3 (c) provides that the county shall also pay the necessary expenses of conducting the office of the Public Defender System. Sec. 4 appropriates $92,642.38 from the County General Fund to pay the sums listed in §§ 2 and 3 for the period from July 1, 1977 to Dec. 31, 1977. This was one-half of the budget approved by the circuit judges.

The basis of appellant’s argument on this point is that under Act 246 of 1977, the Quorum Court makes an appropriation only after the order approving a fee in a particular case has been made, and thereafter the amount would be transferred into the special account and, when that fund is sufficient, the salaries of the Public Defender System would be paid. Appellant contends that the orders on a case by case basis have not even been entered and no funds were available to be transferred to the fund from which payments were to be made under Ordinance 63.

The record was rather incomplete on the availability of funds. Of course, appellant correctly contends that no payment can be made under the appropriation until allowances of fees by the circuit court under Act 246 of 1977 provide an adequate amount to cover the payments sought. The requirements of the ordinance are clear in that respect.

Appellee stated in open court that the judge presiding had made allowances amounting to $600 or $700 and that he was informed that the other Judge of the Circuit Court of Pulaski County had allowed $7,000. Even though this statement was not contradicted, we cannot take these facts to be established. Clearly, under the provisions of the ordinance and the requirement of § 78 (B) (2) (a) of Act 742 that the county judge determine that there is a balance of funds on hand in the appropriation, payment cannot be made until the appropriation is funded by allowances under Act 246. But this was not the basis for appellant’s inaction, and appropriate provision for this contingency was made in the order from which this appeal is taken. The original order provides that it is to be complied with only when funds are available in the Public Defender’s Account as established under Ordinance 63. In a supplemental order entered the next day, appellant was ordered to forthwith transfer the amounts theretofore ordered by the Pulaski County Circuit Court pursuant to Act 246 of 1977 and § § 2 and 3 of Ordinance 63 from the Pulaski County General Fund to a Public Defender Fund to be established and maintained by the county treasurer.

We see nothing wrong with the method adopted by the quorum court in making the appropriation by ordering the transfer of allowances made under Act 246 without waiting to make a separate appropriation after each circuit court order of allowance is presented to it. The appropriation then would be automatic, for Act 246 leaves the quorum court without any discretion in the matter. See Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726. There is nothing new about anticipation of revenues in the making of appropriations, either by the state legislature or by quorum courts. Necessarily, most appropriations are so made. The amount of $92,642.38 appropriated serves as a limit on this anticipatory appropriation and, if that limit should be reached, the individual circuit court orders allowing fees would have to be presented to the quorum court thereafter for appropriation.

IV

Lastly, appellant contends that Ordinance 63 is unconstitutional. The first argument advanced is that under Amendment 55, § 1 (a) the Quorum Court of Pulaski County may exercise only local legislative authority. It is appellant’s position that the Public Defender System was created for the Sixth Judicial District, which includes Perry County, and that the ordinance violates the constitutional amendment, because the Quorum Court of Pulaski County cannot enter into an interlocal agreement with another county, as its function, set out in § 90 of Act 742 of 1977, is only to authorize such an agreement, which must be entered into by the County Court of Pulaski County. As we see it, no interlocal agreement is involved.

Appellant also argues that the ordinance is unconstitutional because the Quorum Court has appropriated money to pay a public defender created under Act 279 of 1975, which appellant says is unconstitutional because it violates Art. 4, §§ 1 and 2, and Art. 16, § 4 of the Arkansas Constitution and Amendment 55. The theory of this argument is that under Art. 4, §§ 1 and 2 and Art. 16, § 4, the setting of salaries is a legislative function which cannot be exercised by any other department of government. Appellant says that prior to Amendment 55, salaries for all officers and employees, both of the state and of the counties were fixed by the General Assembly, but, after the adoption of Amendment 55, only the Quorum Court could fix the salaries of county employees.

Appellant also says that the circuit judges, if they are acting in obedience to Act 279 of 1975, are without jurisdiction to act, because that law is an unconstitutional delegation of legislative power to fix salaries. In Pulaski County v. Adkisson, Judge, 262 Ark. 636, 560 S.W. 2d 222, this court held that the provision for the setting of salaries to be paid without appropriation by the quorum court in § 3 of Act 279 of 1975 by the circuit judges was in violation of Art. 4, § 2 of the Constitution of Arkansas expressing the doctrine of separation of powers. The court order involved also involved the payment without appropriation. But the sections of that act are clearly severable and the remainder of the act stands unimpaired. The Public Defender System originally created by the Pulaski Circuit Court order was recognized and adopted by the Pulaski County Quorum Court. Ordinance 63 is an appropriation by the proper legislative body. It was not passed under Act 279 of 1975. It was passed in compliance with Act 246 of 1977. It is proper under the provision of § 70 of Act 742 of 1977, which requires a county to support the administration of justice in the county.

The Constitution of the United States mandates that indigent persons charged with felonies and certain misdemeanors be provided effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 ALR 2d 733 (1963); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 923, 10 ALR 3d 974 (1967); Swenson v. Bosler, 386 U.S. 258, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967); Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. den. 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). This is an essential part of the administration of justice in a county. In Arkansas, it was, in felony cases, long before the United States Supreme Court found it to be constitutionally required. See Rev. Stat., Ch. 45, § 112; Ark. Stat. Ann. § 43-1203 (Repl. 1964); Therman v. State, 205 Ark. 376, 168 S.W. 2d 833. Payment of some of the cost of providing counsel by counties was authorized by Act 276 of 1953. See Ark. Stat. Ann. § 43-2415, -2416 (Repl. 1964). It became mandatory through Act 125 of 1971. [Ark. Stat. Ann. § 43-2417, -2418 (Repl. 1975).] A further step was taken through Act 246 of 1977, where provision was made for an investigation expense allowance and an increased maximum fee for an attorney, and the quorum court in each county was required to make the necessary appropriation upon receipt of an order of the circuit court fixing the fee in a case. Up to this point, individual attorneys were appointed by the circuit court on a case by case basis. A public defender system was authorized for the Sixth Judicial District by Act 279 of 1977. The public defender under this act is an attorney appointed by the judges of the courts having jurisdiction of criminal cases to represent indigents in criminal cases, just as individual attorneys had been previously appointed on a case by case basis by these judges.

Under Arkansas law, the responsibility for payment of counsel furnished indigents is that of the individual counties, as it has been since compensation for such attorneys was first provided for in Act 276 of 1953. The principal difference between the appointed counsel system and the public defender system is that the former acts on a case by case basis and the latter on a permanent basis. State v. DeJoseph, 3 Conn. Cir. 624, 222 A. 2d 752 (1966). In People v. Mullins, 188 Col. 29, 532 P. 2d 736 (1975), the Supreme Court of Colorado pointed out:

The appointment of a public defender does not differ significantly from the appointment of private counsel in an individual criminal case. Indeed, the appointment of a public defender is of greater benefit to a defendant who is thereby provided counsel who is employed solely in criminal defense work.

It is obvious that the Quorum Court of Pulaski County, given the option of counsel appointed on a case by case basis or a public defender system in meeting its obligation to provide defense counsel for indigents chose the latter as the more efficient system.

The public defender and his deputies are neither state nor county employees, either under Act 279 or Ordinance 63. There is nothing in the act or the ordinance to make them either. The only sense in which they are officers is that they are officers of the court, as are attorneys appointed under Ark. Stat. Ann. § 43-1203 (Repl. 1977) and formerly compensated under Ark. Stat. Ann. § 43-2417, -2418 (Act 125 of 1971), but now under § 1 of Act 246 of 1977 [§ 43-2419 (Repl. 1977)], which is also the source of the compensation of the public defender system under Ordinance 63. A public defender appointed by the judiciary under this system is not a public officer or employee, but is a private attorney representing indigent defendants in criminal cases. Spring v. Constantine, 168 Conn. 563, 362 A. 2d 871 (1975). See also, Ex parte Hough, 24 Cal. 2d 522, 150 P. 2d 448 (1944).

Another facet of this argument by appellant is that Act 279 unconstitutionally conferred appointing power upon circuit judges in contravention of the doctrine of separation of powers, in that the appointment of state officers and employees is an executive function and the employment of county officers and employees is, under Amendment 55, § 3, within the power of the county judge. As we have pointed out, neither state nor county employees are part of the public defender system. Secretaries will be the employees of the public defender. The appointment of a public defender is no more an executive function than is the appointment of an attorney to represent an indigent in an individual case. The case of Oates v. Rogers, 201 Ark. 335, 144 S.W. 2d 457, is inapplicable because it deals with the impropriety of judicial officers appointing executive officers whose duties are not related to the administration of justice.

In Burrow v. Batchelor, 193 Ark. 229, 98 S.W. 2d 946, we held that the salaries of the duly appointed reporter and stenographer for the grand jury and of the duly appointed and acting court reporter in the Fifteenth Judicial Circuit were a part of the necessary expenses of the operation of county government of Franklin County, which was a part of the Fifteenth Judicial District. This, of course, was based upon the fact that the services of these reporters were essential to the administration of justice. Counties are civil divisions of the state for political and judicial purposes and are its auxiliaries and instrumentalities in the administration of its government. Lake v. Tatum, 175 Ark. 90, 1 S.W. 2d 554. They are a political subdivision of the state for the administration of justice and local government. Pulaski County v. Reeve, 42 Ark. 54. The very word “county” signifies a circuit or portion of the state resulting from a division of the state into Such areas for the better government thereof and the easier administration of justice. 56 Am. Jur. 2d 74, Municipal Corporations, etc., § 5. Nothing in Amendment 55 changes the status of the county insofar as its primary purposes and functions are concerned. The administration of justice within the county is one of the primary reasons for its existence. The Quorum Court of Pulaski County has found that the public defender system in the Sixth Judicial District is the best and most effective means of the county’s fulfilling an essential part of the administration of justice, i.e., providing defense counsel to indigents. In doing so, it has insured that the cost shall not exceed the cost which would be incurred in appointment of individual counsel by the circuit judge on a case by case basis. While it is possible that the quorum court may have the power to choose some other system, it could not escape liability for payment of the fees of appointed counsel in the absence of a substitute. The adoption of the public defender system, by action of the Quorum Court of Pulaski County, in spite of the fact that it will be in effect in Perry County as well as Pulaski County, does not make the county any less responsible for bearing the cost of providing defense counsel to indigents than it is for payment of the salaries of court reporters who will also serve in both counties.

In a dissenting opinion, the issue is raised for the first time in this proceeding, that Act 279 of 1975 is local legislation, and as such, unconstitutional. Of course, this matter is not before us, because it was not raised in the trial court. Furthermore, it is not mentioned in appellant’s brief in any way. In any event, saying it is local legislation is contrary to every decision of this court on the subject. An act does not have to be necessary to the administration of justice in order to avoid the ban against local legislation. It is not local legislation if it pertains or relates to the administration of justice.

In the case cited by the majority in McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789, the issue pertained to fees of the clerk of the Chancery Court of Sebastian County and those of the stenographer of the Tenth Chancery District, and it was held that the act allowing a fee to the court stenographer to be credited to the “Stenographer’s Fund Account”, of the chancery district was not local legislation. The reason was that the statute related to the administration of justice because under modern conditions, the court reporter is an essential officer in reporting the proceedings of the courts. See Sebastian Bridge District v. Lynch, 200 Ark. 134, 138 S.W. 2d 81. The same question was involved and the same answer given in McLellan v. Pledger, supra. Other cases holding that legislation relating to the administration of justice is not local are: Smalley v. City of Ft. Smith, 239 Ark. 39, 386 S.W. 2d 944; City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W. 2d 829. Legislation dealing exclusively with the functions of a court of statewide jurisdiction is not local legislation. Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647. The rationale of these holdings was first stated in Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844, in the following language:

*** Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens coming within the jurisdiction of the court. Whether an act of the Legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and, if it affects equally all persons who come within its range, it can be neither special nor local, within the meaning of the Constitution. ***

We elaborated upon this rationale in an opinion on rehearing in Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617, in treating and disavowing an intention to impair the holding in Waterman, saying:

*** This is in recognition of that principle of state sovereignty under which the state, through its Legislature, may protect its own interest, and, by virtue of it, the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. ***

Again, in speaking of the rationale of Waterman in Cannon v. May, 183 Ark. 107, 35 S.W. 2d 70, we said:

*** A Missouri case was cited in support of the ruling. The Supreme Court of Missouri based its holding on the principle that the judicial system of the state was a whole and that acts dealing with the courts have been usually held general although not applicable to every court of like nature in the state. The ruling proceeds upon the doctrine that the judicial department of the state is a “composite unit.” ***

The rationale of Waterman, Cannon and Webb was relied upon in Buzbee.

There is no logical basis for saying that furnishing defense counsel to indigent defendants is not a part of the administration of justice. How it should be accomplished in Pulaski County is a matter addressing itself to the General Assembly and to the Quorum Court of Pulaski County.

We find no error in the issuance of the writ in this case and affirm.

George Rose Smith, J., concurs; Hickman, J., dissents.

Darrell Hickman, Justice.

The majority has decided, after considerable strain both legally and logically, that an ordinance of the Pulaski County Quorum Court appropriating money for a Public Defender System, as authorized by Act 279 of 1975, is legal.

The simple fact that the Pulaski County Quorum Court has appropriated money for the Public Defender System as it exists in the Sixth Judicial District (which is comprised of Pulaski and Perry Counties), is not enough to satisfy all the obvious deficiencies of the act creating the Public Defender System in this district.

Act 279 of 1975 is clearly a local act in violation of the Arkansas Constitution. Amend. 14, Ark. Const. This act was passed at the same session as the “Public Defender Act.” See Act 996 of 1975.

The authorities in Pulaski County, rather than proceeding with a public defender system as authorized by Act 996 of 1975, chose to seek separate legislation for their public defender system. There is no doubt the act is local legislation since on its face it only applies to Pulaski and Perry Counties. We only approve local legislation in the interests of “the administration of justice.” See Sebastian Bridge Dist. v. Lynch, 200 Ark. 134, 138 S.W. 2d 81 (1940). Without conceding the point, the argument that the local act for a public defender system is necessary to the administration of justice carries little weight because Pulaski and Perry Counties could have proceeded to establish a public defender system under Act 996 of 1975, and thereby have avoided the obvious shortcomings of the local act.

The act in question does not merely authorize Pulaski County to have a public defender system, it gives the circuit court the power to create and maintain the system. This power is alien to courts and is a clear violation of the separation of powers clause of the Arkansas Constitution. Art. 4, § 2, Ark. Const. The fatal portion of Act 279 reads:

The circuit court may create a Public Defender System for indigent persons accused of serious crimes in the district and provide for the compensation of such attorneys and investigators as is necessary and for the reasonable expenses of the office. These salaries and expenses shall be paid for the administration of justice from General Revenues of the county and without the necessity of a prior appropriation therefor by the quorum court. Section 3, Act 279 of 1975. [Emphasis added].

We have already declared that portion of Section 3 which authorizes the circuit court to approve and set salaries to be unconstitutional. Mears v. Adkisson, Judge, 262 Ark. 636, 560 S.W. 2d 222 (1977). The issues before us now were also argued in Adkisson, but we declined to review them.

The appellant argues that Act 279 is an unlawful delegation of a legislative function. I believe this argument has merit. The act clearly gives the circuit court the authority to create a system and maintain it; this is a legislative and administrative function.

In the case before us a budget of $185,000 has been approved by the quorum court which authorizes: salaries for a public defender, three assistants, a chief investigator, assistant investigator, and three secretaries; retirement benefits of some $14,000 (whether the employees contribute to a state, county or private retirement system, we dp not know); and, office supplies and equipment of some $23,000.

The majority in approving the authority of the circuit courts to create this system state that the system is comparable to a circuit judge appointing a single lawyer to represent a single indigent and authorizing a fee not to exceed $350.00 for his services. Ark. Stat. Ann. § 43-2419 (Repl. 1977). Such an argument avoids the question squarely presented to us, i.e., whether the public defender and his employees are state or county employees. Rather than answer this question, the majority has decided that public defenders are neither state or county employees, but are “private” attorneys acting as officers of the court. This is an incredible conclusion.

Perhaps the majority has to reach this conclusion because if the employees of the public defender’s office are state employees, then only the state, not the counties, can set the salaries. Art. 16, § 4, Ark. Const. If the employees are county employees, then the county judge, as opposed to the circuit judge, pursuant to Amendment 55 has the authority to hire and fire public defenders and the employees of the office. Amend. 55, § 4, Ark. Const.

Apparently the majority has decided that the circuit judge or judges (we do not know which since there are four circuit judges in Pulaski County at this time) will hire or fire the public defender and the employees. The act makes no provision for such matters. It will be no comfort to indigent defendants to know that their particular lawyer has been hired by the judge trying their case, and that the lawyer needs the approval of that same judge to keep his job.

It would be much easier to brand Act 279 for what it is, blatant local legislation which clearly violates the separation of powers clause of the Arkansas Constitution. Rather than being a tool for the effective administration of justice, the act clearly becomes a possible violation of the due process clause of the Arkansas and United States Constitutions.

Rather than seek to patch up Act 279 and, in fact, do a little legislating ourselves, it would be better to tell the Sixth Judicial District to operate a public defender system as authorized by the Public Defender Act or seek legislation which will satisfy the constitution.

I respectfully dissent to the view of the majority in this case for the reasons which I have stated.

      The legality of payment of fringe benefits, retirement and FICA is not before us on this appeal. Of course, payments cannot be properly made unless legally required.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    AETNA INSURANCE COMPANY v. Robert SMITH
    77-430
    568 S.W. 2d 11

    Opinion delivered July 3, 1978
    (Division I)

      Putman, Davis, Bassett, Cox & Wright, for appellant.

      Mb lock & Odom, for appellee.
   John A. Fogleman, Justice.

On June 15, 1976, appellee Robert Smith received an injury in an automobile accident while a policy of automobile insurance issued him by appellant Aetna Insurance Company was in force. The injury arose out of and in the course of Smith’s employment and he received workmen’s compensation benefits which paid all medical expenses he incurred along with disability benefits in excess of those provided by appellant’s policy. Appellant defended under a policy clause excluding coverage to the extent that benefits were paid to the insured, under any workmen’s compensation law. Upon motion for summary judgment by appellee, the trial court granted judgment against appellant for $2,000 medical benefits and $140 per week for the fifty-two week period he was disabled, holding that the exclusion violated the provisions of Ark. Stat. Ann. § 66-4014 and the public policy of the state. Appellant contends that the trial court erred in so holding and in granting summary judgment. We agree and reverse.

The pertinent policy provisions follow:

SECTION I
AUTOMOBILE MEDICAL PAYMENTS COVERAGE
The Company will pay benefits for medical expenses with respect to bodily injury sustained by an eligible injured person caused by accident arising out of the maintenance or use of a motor vehicle as a motor vehicle.
Exclusions
This coverage does not apply to bodily injury
(a) sustained by any person to the extent that benefits therefor are in whole or in part paid or payable under any workmen’s compensation law, employer’s disability law or any similar law.
(b) * * *
SECTION II
WORK LOSS COVERAGE
The company will pay benefits for work loss with respect to bodily injury sustained by an eligible injured person caused by accident arising out of the maintenance or use of a motor vehicle.
Exclusions
Exclusion (a), (h), (j) and (k) under Section I apply to Section II . . .

It is agreed that appellee incurred medical expenses in excess of $2,000, the maximum medical coverage.

Section 1 of Act 138 of 1973 [Ark. Stat. Ann. § 66-4014 (Supp. 1977)] requires that every automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this state “provide minimum medical and hospital benefits, income disability and accidental death benefits, under policy provisions and on forms approved by the Commissioner of Insurance, to the named insured * * * injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons other than those occupying another vehicle struck by the insured motor vehicle, without regard to fault, as follows ...”

An insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. The insured, by accepting the policy, was deemed to have approved it with all conditions and limitations expressed therein which are reasonable and not contrary to public policy. MFA Mutual Insurance Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252.

The first basis for the trial court’s holding turned upon its conclusion that the statutory provision for exclusion of benefits foreclosed the right of the insurer to exclude benefits on any other basis. Ark. Stat. Ann. § 66-4017 (Supp. 1977) reads:

Exclusion of benefits. — An insurer may exclude benefits to any insured, or his personal representative, under a policy required by Section 1 [§ 66-4014], when the insured’s conduct contributed to the injury he sustained in any of the following ways:
(a) causing injury to himself intentionally;
(b) while in the commission of a felony, or while seeking to elude lawful apprehension or arrest by a law enforcement official. [Acts 1973, No. 138, § 4, p. 467.]

As appellant points out this section specifically permits an insurer to eliminate risks attributable to intentional misconduct of the insured. We do not read into this section any legislative intention to prohibit other exclusions from coverage. The policy provides for exclusions other than the one in question here and those specifically made permissible by the statute. Whether some of them would be permissible because of language in other sections of the act is at least a matter subject to argument. There is, however, at least one hypothetical situation stated by appellant in which coverage is excluded by policy terms which would not be permissible under the trial court’s view. That is the case of injury of an occupant or passenger who is an accomplice of a thief driving an insured vehicle when it is involved in a collision. It is hard to believe that the General Assembly meant to prohibit such an exclusion.

Whatever may be said about exclusion of risks, there is no indication that it was the intent of the General Assembly to require that the “no fault” coverage be provided whether the insured has other coverage providing the same benefits, or not. Certainly, the section in question does not indicate such a legislative intent.

To the contrary, there are situations where a double recovery for injuries is specifically eliminated by the act. The insurer is entitled to reimbursement of payments made from any recovery made by the insured from a tortfeasor causing the injuries of the insured. Ark. Stat. Ann. § 66-4019.

The trial court’s holding that the exclusion involved here was void, was also based, in part, upon our holding such an exclusion void in the case of uninsured motorist coverage under Ark. Stat. Ann. § 66-4003 (Supp. 1977). Travelers Insurance Co. v. National Farmers Union Property & Casualty Co., 252 Ark. 624, 480 S.W. 2d 585. Our holding, however, was based, for the most part, upon the fact that the workmen’s compensation exclusion would amount to a reduction of the stated policy limits. This was significant because the purpose of that act was to require the same amount of coverage to one injured by the negligence of a motorist who carries no liability insurance as would be available had the motorist had the minimum coverage necessary to meet the requirements of the Motor Vehicle Safety Responsibility Act, set out in § 75-1427 (Repl. 1957 and Supp. 1977). There was no such intention in the adoption of the requirement of “no fault” coverage.

The intent of “no fault” insurance was to make an insured whole on relatively minor automobile injury damage claims without regard to fault or liability without his being required to engage in expensive and extended litigation. In this respect, the “no fault” concept is common to automobile liability insurance and workmen’s compensation.

Appellee urges that the trial court’s conclusion can be supported by the prohibition of reduction of benefits contained in Ark. Stat. Ann. § 66-3634 (Supp. 1977). This section applies only to individual, disability insurance policies and there is no way we can construe it to apply to automobile policies containing “no fault” coverage.

Appellee also contends that the laborer who has “no fault” insurance and whose employment is covered under workmen’s compensation is actually paying for the two types of coverage. But the contention that the workman is paying for the workmen’s compensation coverage is contrary to the actual purpose and intent of the Workmen’s (now Workers’) Compensation Law. Workmen’s compensation is not insurance, and it was not contemplated that it be so considered. Auto Salvage Company v. Rogers, 232 Ark. 1013, 342 S.W. 2d 85; Baker v. Slaughter, 220 Ark. 325, 248 S.W. 2d 106. One of the primary reasons for workmen’s compensation is to spread the loss arising from injury to the employee throughout industry. Spratlin v. Evans, 260 Ark. 49, 538 S.W. 2d 527. The public is the bearer of the ultimate burden of compensation protection. Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200. It is illusory to say that the injured workman had paid for workmen’s compensation benefits or that workmen’s compensation is a type of disability insurance.

Appellee contends that the exclusion discriminates against the workman whose injury is covered by workmen’s compensation, just as we found in Travelers Insurance Co. v. National Farmers Union Property & Casualty Co., supra. This would be so if the purposes and intent of the act here had been the same as the purpose and intent of the act requiring uninsured motorist coverage, i.e., to put the insured in the same position he would be if the uninsured motorist had minimum liability insurance coverage. As we have pointed out, that is not so and it seems extremely difficult to attain an application of such laws that does not leave some insured in a better position than others because of circumstances unrelated to the insurance requirement. For example, if one protected by workmen’s compensation coverage is allowed a double recovery, it could be said that there was discrimination against the laborer who suffers the same injury as appellant did but his employment is exempt under the Workers’ Compensation Law. It could also be argued that there would be discrimination against the workman having workmen’s compensation coverage who suffers the same identical injuries en route from his home to his church on Sunday morning. This sort of discrimination is not important where the legislative intention is not to assure the same minimum protection to all against irresponsible motorists.

The judgment is reversed and the cause dismissed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


text:
    Sammy GOODWIN v. STATE of Arkansas
    CR 77-85
    568 S.W. 2d 3
    Opinion delivered July 3, 1978
    (Division II)

      Guy Jones, Jr., Guy H. Jones, Phil Stratton, and Casey R. Jones, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Sammy Goodwin was charged with possession of approximately one pound of marijuana with intent to deliver on May 5, 1975, with delivering a controlled substance (approximately one pound of marijuana) and with aiding and abetting Johnny Martin Williams in the delivery of amphetamines, also a controlled substance. He was found guilty of delivery of a controlled substance and aiding and abetting the delivery of a controlled substance in a consolidated trial, apparently on these three charges and another of a similar nature. Five points for reversal are urged and we find it necessary to reverse the judgment and remand the cases for a new trial.

The verdicts of the jury in the two cases in which appellant was found guilty were on forms supplied by the trial judge. The forms were, prepared while trial counsel were engaged in arguments to the jury. The verdicts, with the portions filled in by the jury italicized, were as follows:

We, the jury, find the defendant guilty in Case No. CR 75-86, the sale of one pound of marijuana on April 2, 1975, and fix his punishment at 5 years in the Arkansas Penitentiary and/or a fine of $5,000 (3 to 10 years in the penitentiary and/or a fine from zero to $15,000.)
We, the jury, find the defendant guilty in Case No. CR 75-87, aiding and abetting the sale of amphetamine tablets on May 1, 1975, and fix his punishment at 3 years in the Arkansas Penitentiary and/or a fine of $3,-000 )3 to 10 years in the penitentiary and/or a fine of zero to $15,000.)

Appellant asserts that the jury was not instructed as to the possible penalty in either case, except by the forms submitted. The state concedes that point, arguing that the form adequately informed the jury as to the punishment possibilities in each case. The circuit judge’s pronouncement of the sentence was as follows:

CR 75-86 5 years in the Arkansas State Penitentiary and a fine of $5,000.00. All other sentences are to run consecutively to this sentence.
CR 75-87 3 years in the Arkansas State Penitentiary and a fine of $3,000.00.

The only alternative form of verdict in both cases was a form for a finding of not guilty.

There is no indication in the record that appellant’s attorneys ever had an opportunity to see the verdict forms before they were submitted or to register any objection to them. Since the judge had advised the attorneys that the forms would be prepared during oral argument, appellant had no occasion to specifically request jury instructions on the punishment. The state does not complain about appellant’s failure to object to the forms submitted, apparently because the absence of an objection does not prejudice a party who has not had an opportunity to object to a ruling or order of a trial court under Rule 36.21, Rules of Criminal Procedure. See also, Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451. Both parties to this appeal seem to have construed this rule to be applicable in these circumstances. Because of this, we will pass upon the question in this case, but we call attention to the fact that a defendant may raise such an objection at the time the verdict is returned, at the time of sentencing or by motion for new trial. See Taylor v. State, 187 Ark. 1164, 62 S.W. 2d 15; Cargill v. State, 76 Ark. 550, 90 S.W. 618; State v. Knight, 259 Ark. 107, 533 S.W. 2d 488; Rule 36.22, Rules of Criminal Procedure; Ark. Stat. Ann. §§ 43-2303, -2304 (Repl. 1977). See also, Coleman v. State, 257 Ark. 538, 518, S.W. 2d 487. In cases tried after this date, we will not consider an assertion of error in the verdict form, when the issue has not been raised in the trial court in any manner or some adequate reason for not doing so is disclosed by the record.

Forms of verdict in cases in which fines may be imposed as either an alternative or a supplement to a prison sentence have in recent years caused an ever recurring problem. See Byars v. State, 259 Ark. 158, 533 S.W. 2d 175; Brown v. State, 261 Ark. 683, 550 S.W. 2d 776; Shelton v. State, 261 Ark. 816, 552 S.W. 2d 216. See also, Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 (1978). The use of the form submitted here might not have resulted in reversible error if the jury had been clearly instructed as to the punishment for the offenses, or if the jury had been asked to explain its intention after the verdict was returned. See Brown v. State, supra; Byars v. State, supra. But we cannot accept the state’s suggestion that indication by the prosecuting attorney of possible punishment sanctions under applicable laws in voir dire of prospective jurors was an acceptable substitute for instruction by the trial judge. It is the function of the trial court, not trial counsel, to inform the jury as to the applicable law.

The state attempts to distinguish Brown and Shelton. It relies on the fact that here there was no instruction to the jury that was in apparent conflict with the verdict form, as there was in Shelton. The state points out that, since the range of possible fine on each form began with “zero,” it was clear to the jury that no fine was required. For this reason, argues the state, Brown does not govern. Even so, we are unable to see how the trial judge could ascertain that the jury intended that both forms of punishment be imposed rather than one or the other. The jury did not indicate that it intended to leave sentencing to the trial judge, as'it might have done. For this reason, and because we cannot correct the error by eliminating either form of punishment, the judgments must be reversed.

Another point raised by appellant requires a reversal. It has to do with exclusion of evidence. The principal evidence supporting the jury verdicts finding appellant guilty was the testimony of Jerry Roberts. Roberts was an Arkansas State policeman assigned to the Drug Abuse Investigation Section and had been investigating narcotics traffic and obtaining evidence as a basis for prosecutions in Faulkner County, among others. He was operating “undercover” and wore poorly pressed pants or “faded-out” jeans, gnd a “hippy” shirt. When he was trying to buy drugs, he messed up his hair and rubbed dirt on his face and hands. During the course of his investigation in Faulkner County over a period of approximately three months, he met and came in contact with appellant.

We are unable to pass on the propriety of some of the items of evidence that were excluded over appellant’s objection. One of these was some statement of Roberts, allegedly made in appellant’s presence, to another officer at the time of appellant’s arrest. Goodwin was prevented from completing his response to his attorney’s inquiry about that statement by the prosecuting attorney’s objection. The statement was never proffered in spite of the fact that appellant was given the opportunity to make proffer in camera on several items. Another item seems to relate to a charge on which appellant was acquitted.

Appellant also sought to contradict the testimony of Roberts on collateral matters pertaining to conduct of Roberts on wholly unrelated occasions, such as an alleged criminal act of Roberts in 1969, his alleged smoking of marijuana in the past, his. alleged removal from a college for possession of alcohol and alleged threats by him to other persons. This testimony was not admissible, although cross-examination on those subjects was proper.

There is one item of testimony that was erroneously excluded. Appellant attempted to show by his own testimony that Roberts had sought to recruit him as an informer, offering to get all charges dismissed, but to make absolutely certain that appellant went to Cummins Prison Farm if he did not accept this proposal. This testimony had a bearing on possible bias of the witness and was admissible. Its exclusion was reversible error. Frazier v. State, 42 Ark. 70. In Wright v. State, 133 Ark. 16, 201 S.W. 1107, this subject was treated extensively and the matter settled. There we said:

*** The bias of a witness is not a collateral matter; but it was most important to the defendant to show that on numerous occasions the witness had expressed himself as having ill feelings towards the defendant, and that the ill feeling had been brought about because Wright as mayor had attempted to prohibit the witness and others from selling cigarettes and conducting gaming devices contrary to law. Pecuniary interest, personal affection or hostility, sympathy, or animosity, a quarrel or prejudice, may always be shown to discredit a witness. Cornelius v. State, 12 Ark. 782; Crumpton v. State, 52 Ark. 273, 12 S.W. 563; Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41; McCain v. State, 195 S.W. 363, and cases cited. In Hollingsworth v. State, supra, the court said:
“The appellant should have been permitted to prove that the witness had an interest and bias in the cause, by his statement disclosing it. Whether he could make such proof by those who heard the statement, without first interrogating the witness concerning it, we need not decide. Such would have been the better practice, and should be observed where it is practicable. That it must be followed we do not hold, for highest authorities upon the subject differ.”

It seems that under these circumstances it was necessary that Roberts first deny the statements which would indicate bias. Wright v. State, supra; Ark. Stat. Ann. § 28-1001, Rules 613 (b), 801 (d) (1). See also, Dixon v. State, 189 Ark. 812, 75 S.W. 2d 242; Peters v. State, 103 Ark. 119, 146 S.W. 491; U.S. v. Brown, 547 F. 2d 438 (8 Cir., 1977), cert. den. sub. nom. Hendrix v. U.S., 430 U.S. 937, 97 S. Ct. 1566, 51 L. Ed. 2d 784. A sufficient foundation for extrinsic evidence on the matter was laid in this case.

Appellant alleges that the court erred in refusing to suppress evidence obtained by a warrantless search, resulting in the seizure of one pound of marijuana taken from his motor vehicle on May 5, 1975, when he was first arrested. Appellant was acquitted on the charge of possession of this marijuana, in spite of the evidence of this seizure. This evidence may not be offered on retrial on the charges of which appellant was found guilty. If offered to show intent, motive, etc., it should not be admitted if the evidence relating to the search is not different from that revealed by the abstract of the record in this appeal. It was beyond the scope of a lawful search incident to appellant’s arrest, and the state has never sought to justify it on this ground. The statejdoes contend that the vehicle, a pickup truck, was seized at the time of appellant’s arrest because it had been used in the delivery of a contrplled substance. The alleged authority for the seizure of the vehicle was Ark. Stat. Ann. § 82-2629 (Repl. 1976). The search, according to the state, was justified under Rule 12.6 (b), Rules of Criminal Procedure, authorizing a search of an impounded vehicle to the extent reasonably necessary for the safekeeping of the vehicle and its contents. The state’s witness testified that inventory searches of seized vehicles are required by Arkansas State Police Department policies, rules and regulations.

The vehicle seizure was made upon the representation of Roberts to Officer Sparks of the Arkansas State Police that this vehicle had been used to transport narcotics. The truck was described as a 1955 model “white over green” Ford pickup truck bearing license No. BEI 236. We have been unable to find any evidence, however, that this particular truck had been used to transport controlled substances, as required for seizure under § 82-2629, assuming that a warrantless seizure would have otherwise been justified as incident to Goodwin’s arrest. See Ark. Stat. Ann. § 82-2629 (b) (1) (Supp. 1977). Roberts testified that he had, on one occasion, had a casual discussion with Goodwin one night on a parking lot when Goodwin was in this truck and said he owned it. Roberts said, “We didn’t make a case that day.” Roberts said that Goodwin, on that occasion, invited him to a party at Hillcrest Apartments, where Goodwin lived, saying there were plenty of drugs there. There is no indication that any controlled substance was in the vehicle that day. On one occasion when Roberts said that he had a drug transaction with Goodwin and a man named Williams, Williams and Goodwin were in a 1968 Ford pickup truck bearing license No. EAF 652 on which a “camper” had been mounted.

On this record, the inventory search cannot be sustained because no basis for the seizure was established.

There is no merit to appellant’s contention that the court erred in consolidating the cases in which he was charged and in denying his motion for severance. Appellant states that his attorney had no notice of the order of consolidation until three days before the date his trial started on August 20, 1976. The actual statement to the trial court was that the deputy prosecuting attorney handed the motion and order to him on “a Tuesday.” He made no motion for severance until a pre-trial hearing held on August 20. The prosecuting attorney stated at that time that the motion had been served on appellant’s attorney on July 28, which was the date it was filed. After the trial judge stated that he had received the motion at this time, appellant’s attorney did not contradict this statement. The order was entered August 6. Since appellant did not resist the motion or move for severance until the date of the trial, more than three weeks after the filing of the motion to consolidate, he was in no position to complain. A motion for severance must be timely made before trial. Rule 22.1, Rules of Criminal Procedure.

For purposes of retrial, only two of the four consolidated charges remain. The charges were consolidated on the ground that they were of the same or similar character and based on a series of acts constituting a single scheme or plan. Their being of the same or similar character would have been a proper ground for joinder. Rule 21.1 (a), Rules of Criminal Procedure. These two charges were based on alleged deliveries of controlled substances on April 2, 1975, and on May 1, 1975. Although the substances were different, i.e., marijuana in one case and amphetamines in the other, the testimony of Roberts indicated that the deliveries were made during a course of dealings between him on the one hand and Goodwin and one Johnny Martin Williams on the other. The alleged delivery on April 2 was said by Roberts to have been made by Goodwin at the residence of Williams in a trailer park in Conway. The delivery on May 1, according to Roberts, was made by Williams in Goodwin’s presence. Where offenses joined for trial are part of a single scheme or plan, the defendant is not entitled to severance as a matter of right. See Rule 22.2, Rules of Criminal Procedure.

Prior to the adoption of the Arkansas Rules of Criminal Procedure, we had held that severance was a matter lying in the sound discretion of the trial court. See Ingram v. State, 255 Ark. 6, 498 S.W. 2d 862. Generally, it was not error to consolidate two cases against the same defendant or defendants, if, as here, the charges could have been joined in one indictment or information. See Atha v. State, 215 Ark. 753, 223 S.W. 2d 188. The trial court’s discretion may have been limited, to some extent, by the rules on joinder and severance, but it was unaffected in the situation presented here. See Rule 22.2 (b) (i), Commentary to Article VI, Rules of Criminal Procedure. We find no abuse of that discretion insofar as the two charges of which Goodwin was convicted are concerned.

Appellant says that the trial court committed reversible error in refusing to require the state to produce various records, reports and writings. Appellant filed a motion for discovery in each case. The motions were in general terms, asking for affidavits of complaining witnesses or copies of statements taken by any agent, servant or employee of the istate, and a full description of material or physical evidence, a copy of any statement made by him and the result of any physical or mental examination of the defendant. The motion was granted, but appellant says that the state did not comply. Appellant also says that in spite of the fact that the state was ordered to produce all expense vouchers, checks, writings and documents relating to monetary transactions with Junior Caldwell, it was relieved from doing so at a pretrial hearing on the morning of his trial. The prosecuting attorney advised the court that he was not aware of the existence of any documents, that appellant’s attorney had been advised of the fact that Izzy Dominey (also known as Junior Caldwell) had been paid by the state police, and that officers present would testify as to the amounts.

The order to the state to produce the documents had been entered on January 8, 1976. Appellant did not complain of non-compliance until the day of trial, when his attorney looked through the file and did not find any of the writings requested. When the trial judge asked appellant’s attorney why he had not previously called the court’s attention to the state’s alleged failure, he only responded, “I was advised that it was to be done forthwith. ” In denying the motion, the trial judge stated that it was incumbent upon appellant’s attorney to report to the court if the order was not complied with and to ask the court’s assistance.

Appellant invokes Rule 17.1, Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The rule mandates disclosure by the prosecution to defense counsel of evidence or information which tends to negate the guilt of the defendant as to the. offense charged or to reduce the punishment therefor. The Brady case holds that suppression by the prosecution of evidence favorable to the defendant violates due process. But Brady is directed to the discovery, after trial, of information known to the prosecution but not the defense. See U.S. v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).

It seems that appellant directs this argument to information about the informant, Junior Caldwell, and to written reports made by Roberts during the course of his investigation. There is not even an intimation that either contained any information of an exculpatory nature that was material to any issue, particularly in view of the state’s admission as to Junior Caldwell. If suppression of evidence results in constitutional error, it is because of the character of the evidence and not that of the prosecutor. U.S. v. Agurs, supra.

Appellant also complains that Roberts refreshed his memory by reference to notes prepared from his original notes and that he had in his possession, while testifying, detailed reports on different incidents, but that the trial court refused his counsel’s request that the witness be required to provide defense counsel with all these reports. The notes used by the witness were furnished, and actually introduced in evidence and appellant’s attorney cross-examined the witness extensively about them. It developed that the prosecuting attorney also had a copy of the reports made by Roberts and the trial judge denied the request of appellant’s attorney that this copy be produced. There is nothing in this record to indicate that Roberts ’ report contained anything which would tend to exculpate Goodwin or tend to result in a reduction of his punishment or, as a matter of fact, that it contained anything really material that would affect the outcome of the trial. The prosecution was not obligated, by constitutional mandate, to make a complete and detailed accounting to the defense of all police investigatory work on the case. See U.S. v. Agurs, supra.

Appellant relies upon Rule 17.1 (a), Rules of Criminal Procedure, which requires, among other things, that the prosecuting attorney disclose to defense counsel any books, papers, or documents which the prosecuting attorney intends to use at trial or which were obtained from or belonged to the defendant. These reports were not offered in evidence and they certainly did not belong to the defendant. We find no abuse of the trial court’s discretion on this score. It appears from the record that appellant’s attorney actually abandoned his efforts to obtain these reports after he was permitted to offer the officer’s notes in evidence.

Appellant also invokes Rule 612, Ark. Stat. Ann. § 28-1001. Subsection (a) relates to writings used by a witness to refresh his memory while testifying. These notes were disclosed to appellant’s attorney. Subsection (b) provides that an adverse party is entitled to a writing used by a witness to refresh his memory before testifying and for that purpose, if the court in its discretion determines that the interests of justice require that it be produced. This was a matter lying within the sound judicial discretion of the trial judge. We will not reverse his action unless there has been an abuse of his discretion. Ponder v. Waters, 257 Ark. 885, 520 S.W. 2d 302; Peters v. State, 248 Ark. 134, 450 S.W. 2d 276. We cannot say that there was an abuse of discretion in this case.

Appellant attempts to invoke Ark. Stat. Ann. § 28-1001, Rule 801 (d) and Rule 803 (5). We do not see how either has any application here.

The judgment is reversed and remanded.

We agree.

George Rose Smith and Holt and Hickman, JJ-

      The showing of materiality of the reports here does not approach that made in Brown v. State, supra, 261 Ark. 683, and that decision, relied upon by appellant, is inapplicable here.


author: Conley Byrd, Justice. George Howard, Jr., Justice,

text:
    Teresa Jean ROBERTS, Widow of Ronald J. ROBERTS, Deceased, Employee v. SMITH FURNITURE AND APPLIANCE COMPANY, Employer, and FARMERS INSURANCE COMPANY, Insurance Carrier
    77-349
    567 S.W. 2d 947
    Opinion delivered July 3, 1978
    (In Banc)

      Davis, Douglas & Penix, P.A., for appellant.

      Jones, Gilbreath & Jones, for appellees.
   Conley Byrd, Justice.

The facts in this case are not in dispute. The decedent Ronald J. Roberts was electrocuted when a television antenna he was erecting for his employer, appellee, Smith Furniture and Appliance Company, came in contact with a power line. The employer has accepted this case as compensable and has paid and is paying death benefits pursuant to Ark. Stat. Ann. § 81-1315 (Repl. 1976). The issue here is whether the claimants, the widow and minor child, can collect in addition to the regular allowances for death benefits, an additional 15% penalty pursuant to Ark. Stat. Ann. § 81-131Q(d) (Supp. 1975). That statute provides:

“(d). Violation of Safety Provisions. Where an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided for by this Act [§§ 81-1301 — 1349] shall be increased by fifteen per centum (15%).”

The particular safety statute the employer is alleged to have violated is Acts 1963, No. 148 [Ark. Stat. Ann. §§81-1401 — 81-1410 (Repl. 1976)]. The scope and purpose of the Act, supra, is set forth in section 1, Ark. Stat. Ann. § 81-1401 as follows:

“Scope and Purpose. — This act [§§ 81-1401 — 81-1410] provides for the minimum precautions to be taken during any excavation, demolition, transportation of equipment, construction, repair or operation in the proximity of overhead high voltage lines. The purpose of this act is to provide for the protection of persons engaged in work of any nature in the vicinity of overhead high voltage lines, and to define the conditions under which work may be carried on safely, and the procedures and means by which these conditions may be created. [Acts 1963, No. 148, § 1, p. 399.]”

Under definitions Ark. Stat. Ann. § 81-1402 (Repl. 1976), we find the following:

“(1) ‘Shall’ is to be understood as mandatory.
(2) ‘Should’ is to be advisory.
(3) The term ‘High Voltage’ as used in this act means a voltage in excess of 440 volts, measured between conductors, or between the conductor and the ground.

Section 5, Ark. Stat. Ann. § 81-1405 (Repl. 1976) provides:

“Prohibited Acts. — No person shall require or permit any employee to perform any function in proximity to overhead high voltage lines; to enter upon any land, building, or other premises, and there to engage in any excavation, demolition, construction, repair or other operations, or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said overhead high voltage lines has been effectively guarded against in the manner hereinafter prescribed.”

Section 6, Ark. Stat. Ann. § 81-1406 (Repl. 1976), in so far as here applicable provides:

“Clearance or safeguard required when working near high voltage lines — Relocation of lines. — The operation, erection or transportation of any tools, machinery or equipment, or any part thereof capable of vertical, lateral, or swinging motion; the handling, transportation, or storage of any supplies, materials or apparatus or the moving of any house or other building, or any part thereof, under, over, by or near overhead high voltage lines, shall be prohibited, if at any time during such operation, transportation or other manipulation it is possible to bring such equipment, tools, materials, building or any part thereof within six feet (6’) of such overhead high voltage lines, ...”

The penalty for violating the act is set forth in Section 10, Ark. Stat. Ann. § 81-1410 (Repl. 1976), as follows:

“A person who violates this act shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or imprisoned not more than one year, or both.”

The Commission under its findings of facts stated:

“It is virtually undisputed that two employees of respondent employer were working in close proximity to high voltage lines where the television antenna they were erecting came into contact with a line causing the death of Ronald J. Roberts and seriously injuring Frank Posey. Mr. Roberts and Mr. Posey were the employees erecting the antenna. Apparently neither of the employees knew of the presence of the line at the time of the accident. It also appears that Mr. Claude Smith, owner of Smith Furniture and Appliance Company, was not aware of the lines at the time of the accident.
At the risk of oversimplification, it can be said that the crucial question to be resolved is whether or not it is necessary, in order to find a violation of a safety provision here, that the employer have some knowledge that a ‘violation’ is occurring. Restated, the question to be resolved is the standard of proof which must be met before an employer can be found to have violated such a provision. Is there liability without fault or strict liability? Is simple negligence sufficient? Is actual knowledge that a violation is occurring required? The cases and textwriters unfortunately provide little guidance. ”

The Commission then concluded that the Acts of 1963, No. 148 imposed an affirmative duty upon an employer to discover or investigate the circumstances under which the work was being done and assessed the 15% penalty.

The circuit court reversed the Commission on the basis that the employer could not be assessed the penalty in the absence of knowledge on the part of the employer from which affirmative action or nonaction by the employer contrary to safety requirments may be inferred. We agree with the trial court as respects the particular safety statute involved.

If we should accept the appellant’s position that Acts of 1963, No. 148 imposes an affirmative duty on an employer to discover or investigate the circumstances under which the work is being done, it would then follow that every time an employee comes into contact with a “high voltage” line, the employer could be subject to a fine of not less than $100 or imprisoned for not more than one year or both. After all the act, Ark. Stat. Ann. § 81-1402, supra, states that the term “shall” is to be understood as mandatory and the penalty provision, Ark. Stat. Ann. § 81-Í410, supra, provides that a person who violates this act shall be fined no less than $100 or imprisoned not more than one year or both. We cannot believe that the General Assembly intended to place such a stiff penalty upon the employers of this State in the absence of knowledge on the part of an employer from which affirmative action or nonaction may be inferred.

Appellant argues that, since Ark. Stat. Ann. § 81-1304 (Repl. 1976), provides that it shall not be necessary for the employee to plead or prove freedom from contributory negligence, that Ark. Stat. Ann. § 81-1310(d) in effect places strict liability upon an employer for any injury and that the employer should be liable for any compensation which the employee is entitled to under the act. We find no merit in this contention. In Harber, et al v. Shows, et al, 262 Ark. 161, 553 S.W. 2d 282 (1977), we stated:

“. . . Furthermore, since the statute is penal in nature, we apply the construction rule that is strictly in favor of those upon whom a penalty may be imposed. Nothing will be taken as intended that is not clearly expressed. . . .”

It follows that the burden was upon those seeking the penalty to show that the employer had failed to comply with the safety statute involved. This appellant failed to do so according to the findings of fact by the Commission.

Finally appellant contends that even though we determine that an employer must have knowledge of the existence of the power line, the Commission should have the ability to infer that such knowledge existed. This assertion by appellant is not supported by the Commission’s findings of fact. In fact as pointed out above, the Commission found as a fact that the employer had no knowledge of the high voltage power line.

The record shows that the employer had cautioned his employees to watch for high power lines. Appellant takes this caution by the employer and the fact that houses in general have power lines and argues that any time a television antenna is being erected it is capable of coming into contact with such high voltage power lines. In making this argument appellant fails to take into consideration that Acts 1963, No. 148, applies only to power lines in excess of 440 volts. The electrical service lines to residences, however, do not ordinarily exceed 220 volts.

Affirmed.

George Rose Smith, Holt and Howard, JJ., dissent.

George Howard, Jr., Justice,

dissenting. I cannot join the majority in sustaining the circuit court in reversing the holding of the Workmen’s Compensation Commission which places an affirmative duty upon an employer to discover or investigate the circumstances under which his employees are required to perform any function in the proximity to overhead high voltage lines to the end that precautionary steps may be taken for the safety and welfare of the employees. The applicable statute is Ark. Stat. Ann. § 81-1405 (Repl. 1976), which provides in relevant part as follows:

“81-1405. PROHIBITED ACTS. — No person shall require or permit any employee to perform any function in proximity to overhead voltage lines; to enter upon any land, building or other premises, and there to engage in any excavation, demolition, construction, repair or other operations, or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said overhead high voltage lines has been effectively guarded against in the manner hereinafter prescribed. ’,

The stated purpose of the statutory safety provision is stated in Ark. Stat. Ann. § 81-1401 (Repl. 1976), which is as follows:

“This act . . . provides for the minimum precautions to be taken during any excavation, demolition, transportation of equipment, construction, repair or operation in the proximity of overhead high voltage lines. The purpose of this act is to provide for the protection of persons engaged in work of any nature in the vicinity of overhead high voltage lines, and to define the conditions under which work may be carried on safely, and the procedures and means by which these conditions may be created.” (Emphasis added)

The Administrative Law Judge found that the death of Ronald J. Roberts was caused in substantial part by the failure of the appellee-employer to comply with the statutory provisions involving safety requirements, prohibitions and precautions when employees are working in the vicinity of high voltage lines and, accordingly, awarded the additional 15% benefit.

On May 10, 1977, the full Commission, after reviewing the case pursuant to an appeal taken by appellees, sustained the holding of the Administrative Law Judge.

The appellees appealed the decision of the full Commission to the Circuit Court of Benton County. The trial court, in reversing the Commission, stated in material part as follows:

“There is no question that the death of Ronald J. Roberts was caused in substantial part by his coming in contact with a high voltage power line. Nor is there any question that Roberts and his co-employee were not protected in the manner required by law. It is undisputed that neither Roberts, his co-employee, nor the employer knew of the existence and location of the line.
“The question at issue, then, is whether the employer is liable for the penalty from violation of the safety regulation when he is not aware of the violation . .
“. . . [T]he injunction not to ‘require or permit’ employment in violation of safety regulations under Arkansas law require proof of some element of knowledgeable conduct, from which affirmative action or non-action by the employer contrary to safety requirements may be inferred.”

The majority, in affirming the trial court and, thus, rejecting the holding of the Commission, makes the following observation to justify its action:

“If we should accept the appellant’s position that Acts 1963, No. 148 imposes an affirmative duty on an employer to discover or investigate the circumstances under which the work is being done, it would then follow that every time an employee comes into contact with a ‘high voltage’ line, the employer must be fined not less than $100 or imprisoned for not more than one year or both. After all the act, Ark. Stat. Ann. § 81-1402, supra, states that the term “shall” is to be understood as mandatory and the penalty provision, Ark. Stat. Ann. § 81-1410, supra, provides that a person who violates this act shall be fined not less than $100 or imprisoned not more than one year or both. We cannot believe that the General Assembly intended to place such a stiff penalty upon the employers of this state in the absence of knowledge on the part of an employer from which affirmative action or nonaction may be inferred.
“Appellant argues that, since Ark. Stat. Ann. § 81-1304 (Repl. 1976), provides that it shall not be necessary for the employee to plead or prove freedom from contributory negligence, that Ark. Stat. Ann. § 81-130(d) in effect places strict liability upon an employer for any injury and that the employer should be liable for any compensation which the employee is entitled to under the act. We find no merit in this contention. In Harber, et al v. Shows, et al, 262 Ark. 161, 553 S.W. 2d 282 (1977), we stated:
‘ . . . Furthermore, since the statute is penal in nature, we apply the construction rule that is strictly in favor of those upon whom a penalty may be imposed. Nothing will be taken as intended that is not clearly expressed. . . . ’
It follows that the burden was_ upon those seeking the penalty to show that the employer had failed to comply with the safety statute involved. This appellant failed to do so according to the findings of fact by the Commission.”

The pivotal point in the majority’s action in reversing the Commission and sustaining the trial court is the conclusion drawn by the majority that inasmuch as there is a criminal provision included in the safety statute, the entire safety statute must be strictly construed, resulting in a benefit to the employer at the detriment of the widow and children of the decedent.

I submit that the majority’s posture is not well founded for several reasons.

First, it is apparent that the safety statute in question is not a strictly criminal statute, but is remedial in part and criminal in part. It is clear, beyond debate, that the Commission does not have jurisdiction to enforce the criminal provisions of the safety statute. The criminal portion of the statute is enforcible either in the proper municipal court or a circuit court where the State of Arkansas, through its Attorney General or Prosecuting Attorney, would be a party to the action either to recover a fine and/or impose time in the county jail not to exceed one year. Thus, the Commission is concerned simply with the remedial aspect of the statute and therefore a liberal construction is applied rather than a strict one.

In State v. Miles Laboratories, 365 Mo. 350, 282 S.W. 2d 564 (1955), the court stated:

“. . • [T] he primary rule in statutory construction is to ascertain and give effect to the legislative intent . . . and remedial statutes enacted in the interest of the public welfare should be construed with a view to suppression of the mischief sought to be remedied.”

In St. Louis v. Carpenter, (Mo.) 341 S.W. 2d 786, the Court said:

“Statutes enacted for the protection of life and property, . . . are considered remedial in nature and are generally given a liberal construction.
“Where a statute is both remedial and penal, remedial in one part while penal in another, it should be considered a remedial statute when enforcement of the remedy is sought and penal when enforcement of the penalty is sought.”

In 73 Am. Jur. 2d, page 276, § 11, it is provided in material part as follows:

“A distinction has been made between a penalty or forfeiture which accrues to the party aggrieved, and a penalty prescribed as criminal punishment, so that where the penalty or forfeiture prescribed by the act is made to accrue to the party aggrieved, to be recovered by private action, the statute has been regarded as remedial.”

73 Am. Jur. 2d, page 276, § 12, provides in material part:

“Strictly speaking, a penal statute is one which imposes punishment for an offense committed against the state ...”

It is clear from the safety statute involved that the legislative intent is to provide for the minimum precautions to be taken by an employer for the protection of his employees engaged in work of any nature in the vicinity of overhead high voltage lines. The Commission’s ruling implements this clear legislative intent while the majority’s opinion, by grafting a restrictive interpretation on the safety statute, simply frustrates the legislative will.

Secondly, the ground upon which the majority sustains the circuit court was not litigated either before the Commission or the trial court. Moreover, the majority on its own makes the criminal portion of the safety statute an issue. This is not only inconsistent with our well accepted rule that an issue not raised below may not be asserted for the first time on appeal, but has the appearance of placing the Court in the posture of an advocate which is clearly contrary to the concept of appellate review.

The trial court found:

“The question at issue, then, is whether the employer is liable for the penalty from violation of the safety regulations when he is not aware of the violation.

The appellee-employer seeks to avoid any responsibility in this case for the safety of his employees-deliverymen by asserting that he had never been to the customer’s home in Gentry, Arkansas, where the antenna was being erected, and that he did not “require” or “permit” his employees to erect the antenna in the proximity to an overhead voltage line, as he had no knowledge that there were any high voltage lines in close proximity to the customer’s house. Appellee-employer’s argument possesses all of the characteristics of petitio principa, stated differently, begging the question or arguing in a circle. Although appellee-employer’s argument is intended to convey the notion or the idea that the circumstances surrounding the sale and installation of the antenna justified no action on his part in the compliance with the safety provisions of the Act, it is an attempt to cover plain, obvious and existing facts that demonstrated that a potential hazard existed which the Act was designed to minimize. For example, appelleeemployer testified as follows:

“A. And, ah, but yet — about all I do is to caution them and, ah, of course, I, an — things like this I wouldn’t have happened for anything, but, as, as far as anything particular, you know, like schooling, of course, putting up an antenna is just common sense, I think anybody can do it. But, ah, I didn’t do anything particularly different.
“Q. Did you ever personally advise Ronald Roberts of the procedure to be used?
“A. No.”

It goes without saying that houses in general, and those in particular with television sets and antennas of the type sold by appellee-employer, have high voltage lines which are used to supply electricity to such houses and appelleeemployer should have readily foreseen the existence of a possible hazard. It is clear from the evidence that appelleeemployer took no action to provide for the safety of his employees, nor did he take any action to disclose the location of any voltage lines. Indeed, if, in the judgment of the appellee-employer, a personal inspection of the premises would have worked a financial hardship, concern for the protection and welfare of his employees would have, in the very least, prompted an inquiry of the customer, at the time the antenna was purchased, about the location of high voltage lines in the proximity of the customer’s house.

Frank Posey testified as follows:

“Q. Had your employer ever advised you to take any precautions when raising TV antennas?
“A. Ah, yes, I had been told on different occasions to be careful. I’ve even been told before to be careful of power lines. It would, ah — I’ve had them say be careful you don’t wnat to get those things into a power line.”

Frank Posey further testified he and his former associate were not supplied rubber or insulated bloves, helmets, insulated tools or rubber matting for the insulation of voltage lines or antenna poles; and that during his four years of employment with appellee-employer, the question of deenergizing electrical lines going into houses where he installed antennas was never considered, although he had installed anywhere from ten to twelve a year.

In Smith, et al v. Aaron, 256 Ark. 414, 508 S.W. 2d 320, we made the following observation in discussing what standards of safety an employer is required to adhere to for the protection of his employees when confronted with the statutory scheme in question and a standard based upon custom and tradition:

“. . . We hold that when a legislative enactment, as here, prescribes the minimum standards for the safety of an employee in mandatory language then such requirements supersede and render irrelevant any evidence as to custom and usage. To hold contra would deprive the statutory scheme, as devised by our legislature, of its purpose and effectiveness.
“Even in the absence of statutory standards there is authority that ‘. . . . industry cannot be permitted to establish its own uncontrolled standard by adopting careless methods to save time, effort and money.’ . . . ”

In Holiday Inns of America, Inc. v. Wilson, 253 Ark. 915, 489 S.W. 2d 806 (1973), we affirmed the Commission’s award of the penalty for the employer’s violation of the Act in question where the employee was injured when the metal flagpole he was helping to erect came in contact with overhead electric lines. It was pointed out in Wilson that the employer had selected the flagpole, prepared the base for its erection under the electrical lines, directed its erection, assisted the employee in guiding it into the base and had knowledge of the overhead electric lines. This Court did not see fit to raise on its own initiative whether a strict or liberal interpretation should be placed upon the Act. I submit that Wilson is not materially different from the facts in the instant case. For example, the appellee-employer is engaged in the electrical appliance business and he knew or should have known that his customer had to have access to electrical energy in order to make use of the appliance being purchased, the appelleeemployer personally obtained the order from the customer and placed the delivery order on the company’s bulletin board and, according to the policy of the store, which was initiated by the employer, the decedent and Frank Posey, deliverymen, obtained the order from the bulletin board, selected the merchandise as indicated on the written order prepared by the employer and proceeded to Gentry, Arkansas, for the installation of the antenna in accordance with the directions of appellee-employer. The evidence in the record reflects that neither of the employees saw the overhead voltage line, nor were they cautioned of its existence by anyone.

The majority concludes its opinion by stating that “appellant has failed to take into consideration that the Safety Act applies only to power lines in excess of 440 volts. The electrical service lines to residences, however, do not ordinarily exceed 220 volts.” Again, the majority injects an issue that was neither raised before the Commission, the trial court, nor in the briefs filed by the parties. Moreover, the majority has resorted to speculation as to the number of volts involved since the record does not reflect whether the power lines involved were either 440 volts or 220 volts. I submit that by virtue of the death of appellant’s husband, assuming, for the sake of argument, that only 220 volts were involved, as surmised by the majority, it is beyond debate that 220 volts can be just as fatal as 440 volts.

In 82 C.J.S. Statutes, § 388, page 921, it is provided in pertinent part as follows:

“Where necessary to effectuate the legislative intent, remedial statutes will be construed to include cases within the spirit or reason, although outside the letter, of the statute, and to exclude cases within the letter, but outside the reason. ...”

Finally, the Arkansas Reports are replete with decisions by this Court holding that administrative agencies are presumably equipped or informed by experience to deal with a specialized field of knowledge whose findings carry the authority of expertness which courts do not possess and, therefore, must respect. This recognition has been asserted as the principal basis for the limited scope of judicial review of administrative action in the refusal of the courts to substitute their judgment and discretion for that of the administrative agency. Gordon v. Cummings, et al, 262 Ark. 737 (1978); White County Guaranty Savings & Loan Assn., et al v. Farmers & Merchants Bank of Des Arc, Arkansas, 262 Ark. 893 (1978); Northwest Savings & Loan Assn., et al v. Fayetteville Savings & Loan Assn., et al, 262 Ark. 840 (1978).

I would reverse the Circuit Court of Benton County and reinstate the holding of the Workmen’s Compensation Commission.

I am authorized to state that Justices Smith and Holt join in this dissent.

      Ark. Stat. Ann. § 81-1310(d) (Repl. 1976), in relevant part, provides as follows:
      “(d) VIOLATION OF SAFETY PROVISIONS. Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided for by this Act shall be . . . [increased] by fifteen per cent (15%). . . .”

      Farmers Insurance Company is the insurance carrier for Smith Furniture and Appliance Company.

      By injecting the criminal part of the safety Act, when in fact, it is not relevant to the issue before the Court, the majority not only clouds the real issue, but creates its own straw man at the appellate level to justify the conclusion reached.

      The employee testified “it was a dual antenna, it pointed two different directions and the objects pointing in two directions had a seven foot span. ”

      Frank Posey, the co-employee of the decedent, lost his left hand as a consequence of the incident involving high voltage lines.