author: Steele Hays, Justice.

text:
    Jeff ROSENZWEIG v. Floyd J. LOFTON, Circuit Judge, Pulaski County Court, First Division
    88-17
    751 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988

      Dodds, Kidd, Ryan and Moore, by: Richard N. Moore, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from an order finding the appellant, Jeff Rosenzweig, in contempt of court. The Honorable Floyd Lofton, Circuit Judge, imposed a fine of $500 from which Mr. Rosenzweig has appealed. Jurisdiction in this court attaches under Rule 29(1 )(h) of the Rules of the Supreme Court and Court of Appeals. We find no basis for the trial court’s action and, accordingly, we reverse.

Judge Lofton appointed Mr. Rosenzweig to represent Michael Neal on a charge of aggravated robbery. Rosenzweig filed a pretrial motion to suppress an in-court identification of the accused by a witness to the crime. A hearing on the suppression motion resulted in Mr. Rosenzweig being found to be in contempt. We think it necessary to quote at some length from the record, as it demonstrates, we believe, the absence of any disrespect or insolence which could sustain a finding of contempt. When Mr. Rosenzweig asked an investigating officer why no live line up was conducted, the following occurred:

THE COURT: You want him to conduct one?
MR. ROSENZWEIG: Yeah.
THE COURT: It’s not too late. If you want him to conduct one, we will.
MR. ROSENZWEIG: That’s fine.
THE COURT: Well, you know, just get off of this and we’ll have you conducted one.
MR. ROSENZWEIG: That’s fine with me.
THE COURT: Fine.
MR. ROSENZWEIG: Okay.
THE COURT: You know — What is it set for trial?
MR. ROSENZWEIG: Next week. We can have it any time.
THE COURT: You’ve waited a long time but we —
MR. ROSENZWEIG: Well, I was appointed on this case, your Honor —
THE COURT: Okay. We’ll try to get it done. (T. 41).
MR. ROSENZWEIG: — you know, this summer. I have never heard of Mr. Neal before you appointed me because Mr. Laster had a conflict.
THE COURT: Well, you know, that’s not a problem. I’m not concerned about that.
MR. ROSENZWEIG: If we’re going to have a live line up, then I’m not going to pursue this motion.
THE COURT: Well, then we’re not going to have a live line up. You can go on with this.
MR. ROSENZWEIG: Judge —
THE COURT: I’m just trying to accommodate you. I’m not buying your argument, Jeff.
MR. ROSENZWEIG: Judge, here is the situation. Let me explain to you why I don’t —
THE COURT: I don’t care.
MR. ROSENZWEIG: Well, I’d like to say for the record —
MR. DOUGLASS: This just goes to credibility anyway.
MR. ROSENZWEIG: I’d like to state for the record.
THE COURT: Go on. Can you do it after we get through?
MR. ROSENZWEIG: No, sir, because I think it’s very important right now.
THE COURT: Well, I’m not going to pay any attention to it.
MR. ROSENZWEIG: If you will just listen to me.
THE COURT: I’m not going to pay any attention to it, Jeff. Go on.
MR. ROSENZWEIG: Will the Court please listen to me and let me explain.
THE COURT: Have I got any choice?
MR. ROSENZWEIG: Yes. No. You do but — The situation is this: If we’re going to have a live line up —
THE COURT: We’re not going to have any. You haven’t shown any prejudice.
MR. ROSENZWEIG: Judge —
THE COURT: I offered that as an accommodation to you.
MR. ROSENZWEIG: And we’d love to have one.
THE COURT: Well, then do it.
MR. ROSENZWEIG: Well, we’ll need six people and have it down at the Police Department.
THE COURT: Well, they’ll do that for you, Jeff.
MR. ROSENZWEIG: Okay.
THE COURT: I’m not in the business of conducting line ups.
MR. ROSENZWEIG: Okay, and, if we’re going to have that —
THE COURT: We’re not going to have that.
MR. ROSENZWEIG: I thought —
THE COURT: Because you want to stop this proceeding now.
MR. ROSENZWEIG: If you’ll let me explain. (T. 43)
THE COURT: I’m trying to, Jeff.
MR. ROSENZWEIG: Okay. Thank you. Please — If the Court would please not interrupt me.
THE COURT: If I thought it would be effective, I would.
MR. ROSENZWEIG: Our position is this: If we’re going to have a — The person who would be viewing that live line up, which we would like to have, is outside the courtroom at this time. What I don’t want to do is have her view Mr. Neal and — Mr. Neal here all by himself and then go view a live line up. If we have a live line up, then I will cease and drop this motion.
THE COURT: I’m not going to do that, Jeff. You’re not going to run the Police Department’s way of doing business. Now, if you don’t want to run this case the way it is, just let me know and I’ll relieve you and I’ll appoint Jim Clouette. Now you’re just fishing and blowing smoke.
MR. ROSENZWEIG: No, sir, I’m not.
THE COURT: Do you want to be relieved?
MR. ROSENZWEIG: I’d like —
THE COURT: Do you want to proceed, be relieved or be quiet?
MR. ROSENZWEIG: I — if I understand —
THE COURT: Do you want to proceed, be relieved or be quiet? (T. 44)
MR. ROSENZWEIG: I’d like — Judge, I’m not sure I understand what the Court’s ruling is. May I ask you what the Court’s ruling is?
THE COURT: What’s the question?
MR. ROSENZWEIG: The question is: Are we going to have a live line up?
THE COURT: No. I’m not going to let you conduct the line up for the Police Department the way you want it done.
MR. ROSENZWEIG: No, sir. I —
THE COURT: We’re not going to have one, Jeff. Now, you’re getting close to being in contempt. Now, proceed or get out of it, or let me relieve you. If you don’t want to go to trial with this case, fine. I’ll relieve you and appoint somebody else. If you want to proceed, go on. You’re not going to run the Police Department’s procedure for having line ups.
MR. ROSENZWEIG: I’m not asking to run the Police Department —
THE COURT: Don’t argue with me, Jeff. Proceed. Would you rather be relieved?
MR. ROSENZWEIG: No, sir.
Mr. Rosenzweig made his proffer and testimony resumed. When the witness concluded, the following occurred:
THE COURT: Call your next witness.
MR. ROSENZWEIG: Judge, if you will give me permission, please to address the Court for a minute.
THE COURT: Why?
MR. ROSENZWEIG: Judge, I’ll explain it to you.
THE COURT: I’d rather you just follow procedure and call witnesses, Jeff. (T. 52)
MR. ROSENZWEIG: Judge — Judge, if you please would let me address something to the Court. I’m not meaning any disrespect to the Court or anything of that nature with regard to it. I am baffled by what I understand your rulings to be a minute ago and I just want to make sure I understand correctly what you’re saying.
I understood you to say, when I was asking him some questions, something to the effect of, “You want a line up? We’ll have a line up.” We are not telling the Police Department what to do. We’d love to have a live line up.
If in fact we are going to have a line up, I would drop, cease, desist, forget about this motion dealing with the photo spread and have a live line up.
THE COURT: I’m not going to bargain with you, Jeff.
MR. ROSENZWEIG: I’m not trying to bargain. I’m
THE COURT: If you and the Prosecutor want to get together and have a line up, you may do so. But, now, we’re going to proceed with this hearing today, Jeff.
MR. ROSENZWEIG: Okay.
THE COURT: And we’re going to get through with your motion today.
MR. ROSENZWEIG: Okay.
THE COURT: Call your next witness.
MR. ROSENZWEIG: Okay. May I talk with the Prosecutor a second?
THE COURT: You may call your next witness. (T. 53)
MR. DOUGLASS: No. Go ahead and call your next witness.
MR. ROSENZWEIG: Judge, that’s —
THE COURT: Call your witness, Jeff.
MR. ROSENZWEIG: Judge, if I may —
THE COURT: No. I’m going to hold you in contempt of court. I’m not going to tell you any more. Call your next witness.
MR. ROSENZWEIG: Let me talk to the Defendant for a second. Okay? May I?
(Thereupon, Counsel for the Defense conferred privately with the Defendant; then the following proceedings occurred:)
MR. ROSENZWEIG: We have no further testimony, your Honor.
THE COURT: You’re not going to call the victim?
MR. ROSENZWEIG: No, sir. And may I state the reason why in the record?
THE COURT: You may because I’ve got a few things I want to say, too. So, I want you to get your say first.
MR. ROSENZWEIG: Okay. Judge, our position is — As I say, if I understand what you were offering —
THE COURT: I didn’t make you an offer. I don’t bargain with defense attorneys. (T. 54)
MR. ROSENZWEIG: I wasn’t — Offer. Let me use some other verb then. What I understand the Court to say was that, words to the effect that, “If you want a line up, we’ll have a line up.” And that’s fine with us. That’s — That was great. We’ll do it according to Police Department procedures. I wasn’t trying to —
And my position with regard to not calling any further witnesses is if we were going to have a live line up, under those circumstances I did not want and do not and did not want to taint that by having Ms. Rhodes, the viewer of the line up, see Mr. Neal under these circumstances, being the only black male in this room, being clad in an orange jumpsuit, when it’s obvious the circumstances under which this happened. That was my reason.
I did not intend — and I think that the record, when the Court looks at it — would so reflect that I did not — was not trying to dictate anything to the Court, I was trying to understand the Court’s ruling with regard to it.
We would love to have a live line up. That would be wonderful. It would be perfect. And Mr. Neal feels and I feel that he would be vindicated by it.
Now, with regard to the Court’s attitude, apparent attitude toward me, nothing I said was intended in any disrespect to the Court. I believe my tone of voice was not disrespectful. (T. 55) I was in the process and have been in the process of trying to, number one, make an appropriate appellate record and, number two, trying — well, appropriate trial and appellate record with regard to it.
Number two, I was trying to understand the Court’s ruling. And I think the record would reflect clearly that the Court offered to have a line up and then the Court said, “No, there won’t be a line up.” And then at another juncture the Court said, “Well, if you get with the Prosecutor, you can have a line up.” And then I asked for a minute to talk with the Prosecutor.
I will make myself available at a line up if we could have one. We can have one any time before trial. It doesn’t matter.
That’s the situation. And, if the Court has any question about it, I would suggest that the Court have the court reporter type up the transcript of these proceedings and examine it or listen to the tape of it.
THE COURT: Have you got anything else you want to say?
MR. ROSENZWEIG: No, sir.
THE COURT: Mr. Prosecutor?
MR. DOUGLASS: I don’t have anything else to say. I just need a ruling on the motion.
THE COURT: The Motion will be denied. The record should show that Mr. Rosenzweig filed this motion. He knows how to get an independent line up if he wants one. He didn’t want one. He wants a continuance. (T. 56) The record should also show that he told the Court prior to coming in here that he had mixed emotions about this because he didn’t want to expose his client to the victim before trial but he felt he had to do it.
This was an exercise in futility. It was a searching, fishing expedition. It was not made in good faith. The offer to bargain with the Court was not made in good faith. It is the chicanery to which Mr. Rosenzweig is well noted throughout the Bar. It is not intellectually honest. It does not serve the system well. Does not serve his client well. And the Court does not bargain with defense lawyers, as Mr. Rosenzweig frequently tries to put the Court in a position of doing.
The motion to suppress the in court identification will be denied, failure of proof on part of the Defendant.
I don’t care whether you have a line up or not, Jeff. It’s not my business. You know how to do that. You’re smart enough to do it. But you’d rather have the record than to have something that you can’t live with.
The Court finds you in contempt of court and fines you Five Hundred Dollars.
MR. ROSENZWEIG: May I — I’d like to appeal that. I will file a Notice of Appeal. Now, your Honor, may I respond on the record —
THE COURT: No. (T. 57)
MR. ROSENZWEIG: So that we —
THE COURT: No. Because I asked you if you had anything else to say, Jeff, and you said, “No.” This record is closed to you.
MR. ROSENZWEIG: Judge —
THE COURT: This record is closed. Now, I’ll make it a Thousand Dollars if you want to pursue it. You’ve got that record to appeal from. There will be no response by you. Fine of Five Hundred Dollars. All right. Thank you.
MR. ROSENZWEIG: Judge, uh —
THE COURT: We’re in recess, Jeff. I don’t want to talk with you. I’m out of sorts with you right now. It would not be a good idea.
MR. ROSENZWEIG: Judge, I —
THE COURT: I don’t want to talk to you, Jeff.
MR. ROSENZWEIG: I need — I need to know when I can talk with you with someone else present, if you can tell me that.
THE COURT: My term ends in 1990. See me some time right after that. (T. 58)

Evidently the trial court was annoyed because counsel stated that if he could have a line-up he would withdraw the motion then being heard. Why that would be an irritant is not apparent. It is apparent, both from the stenographic record and from a tape recording of the hearing that Mr. Rosenzweig’s behavior did not approach contemptuous conduct in either his remarks or his tone. He was plainly confused by the court’s comments, which we, too, find unaccountable. But we find nothing to justify the stinging rebuke administered by the trial judge. Indeed, we have carefully reviewed both record and recording and are thoroughly satisfied that counsel’s demeanor to the trial court was at all times respectful. If the trial court had reasons for its strong reproach of counsel at the close of the hearing, they are not to any degree evidenced in the record.

A few days after the hearing Mr. Rosenzweig filed a motion asking Judge Lofton to recuse from the case of State v. Michael Neal. When the motion was presented, the following occurred:

THE COURT: Bob, do you have anything to say?
MR. ROBERT W. LASTER, ATTORNEY FOR A CO-DEFENDANT: No, sir.
THE COURT: Mr. prosecutor?
MR. PENCE: Nothing. (T. 61)
THE COURT: Mr. Rosenzweig, my feelings about you are well known. I make no secret about them. Is that going to be your position in everything in this — First Division?
MR. ROSENZWEIG: Your Honor, I’m not in a position to answer that at this time because I’m still thinking about it. And I —
THE COURT: I will make you a deal. I’m not going to let you forum shop and you can accept other cases in this court.
(Abstracter’s Note: Appellant’s recollection, which he feels is borne out by the tape is that the judge said “can’t accept.” Certainly, “can’t” fits the context of these proceedings and the judge’s remarks.)
I basically just don’t like you. I don’t think there’s any question about that.
If you will give me your word that you will not accept any more cases in First Division as long as I’m on the Bench, I will grant you a continuance or I will relieve you or I will recuse in this case. Otherwise, I can try this case just as fairly. And all you’re entitled to is a record. If you can prove error, you can prove error. And that’s what you want. You want error. You want record. If that’s what you want, fine. Otherwise, I’m going to deny your motion.
But, if you will make me a promise that you won’t accept any more cases in this court as long as I’m on the Bench, I’ll grant your request. If you don’t think you can get a fair trial, that shouldn’t be very difficult for you. (T. 62)

Mr. Rosenzweig respectfully and properly declined to make a commitment of that sort. Nor can we sanction the proposal. It was wholly inappropriate for the trial court to condition his recusal in the case on a commitment by counsel that he would refrain from practicing in First Division, Pulaski Circuit Court, so long as Judge Lofton was on the bench. It goes without saying that any member of the bar of Arkansas in good standing should have no compunction in practicing before any member of the trial or appellate bench, irrespective of personal relationships. A judge who cannot lay aside attitudes toward an individual practitioner which might affect impartiality has a duty to recuse on his or her own motion.

We need not cite statutory and case law dealing with the procedural or substantive rules of contempt of court. There is no dispute as to the law. Our decision turns entirely on the lack of any factual basis for a determination of contempt. Having examined the proceedings in their entirety, we believe Mr. Rosenzweig is entitled to be fully absolved of any taint of impropriety toward the trial judge, and we so hold.

REVERSED.


source: Caselaw Access Project

author: David Newbern, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    BOARD OF TRUSTEES for the City of Little Rock, Arkansas, Police Pension Fund, et al. v. CITY OF LITTLE ROCK, Arkansas
    87-345
    750 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988

      Robert A. Newcomb, for appellants.

      Mark Stodola, City Attorney, by: Thomas M. Carpenter,
      Asst. City Attorney, for appellee.
   David Newbern, Justice.

The Board of Trustees for the City of Little Rock Police Pension and Relief Fund and individual members of the board sued the City of Little Rock, contending that the city had not made certain contributions to the police pension fund required by law.

The city agreed with respect to some of the funds sought and made the appropriate contributions. However, the city claimed, with respect to a percentage of the fines collected from violators of municipal ordinances, that it was exempted by law from having to make those contributions. The circuit court agreed with the city, and the board has brought this appeal, contending that: (1) the legislation by which the city claims exemption was special legislation prohibited by Amendment 14 to the Arkansas Constitution; (2) the exempting legislation was repealed by a subsequent act; (3) the court erred in not allowing testimony about the intent of the legislature in passing the exemption on which the city relies; and (4) the court should have granted a new trial on the basis of newly discovered evidence. We hold that the exempting legislation was not repealed and could have had a rational basis, and thus it was not in violation of the Constitution. We also hold that the proffered testimony was inadmissible and that a new trial on the basis of newly discovered evidence was not justified. We therefore affirm the judgment of the trial court.

Act 250 of 1937 set up police pension and relief funds for cities of over 16,000 population. Act 206 of 1959 dealt with police pension and relief funds for cities of 75,000 or more. It referred to Act 250 of 1937 for the basic procedures, but added that cities with more than $80,000,000 property valuation were exempt from the provision requiring the cities to contribute to the fund 10% of fines for violations of municipal ordinances, and it left in place the requirement that those cities contribute to the fund money saved as a result of suspensions of police officers without pay and a fixed part of property taxes.

The exempting language of Act 206 of 1959 was codified as Ark. Stat. Ann. § 19-1802.1 (Repl. 1980). It was thereafter amended on several occasions to raise the exemption ultimately, in 1977, to cities having an assessed valuation of $200,000,000, or more, and then Act 690 of 1987 repealed the exemption altogether. At the time it was raised to $200,000,000, only the City of Little Rock qualified for the exemption. Prior to the repeal of the exemption, however, several other cities qualified.

At a circuit court hearing, the board contended the city should have paid into its fund 10% of the fines levied for municipal ordinance violations for the years 1983, 1984, and 1985. The city claimed the exemption for those years. In support of its contention that the exemption violated the constitution the board offered the testimony of a former state senator who had introduced the legislation increasing the level of exemption from time to time. He would have testified the exemption was modified with the intention, in part, of keeping Little Rock from having to make the contributions. The board also proffered the testimony of the state administrator of the funds who would have testified that the Little Rock fund was actuarily unsound in comparison with the funds of other cities. The court refused to admit the testimony of these witnesses.

1. Repeal

The board contends that the legislation creating the exemption based on property valuation and each of the subsequent acts increasing the amount for exemption were amendments of Section 2 of Act 250 of 1937. Section 2 of Act 486 of 1981 began as follows: “Section 2 of Act 250 of 1937, as amended, the same being Arkansas Statute 19-1802, is hereby amended to read as follows . . . .” What followed was a revision of that section with no mention of exemption based on property valuation. The board contends the exemption was thus repealed because it had been created and changed from time to time by amending section 2 of Act 250 of 1937.

Act 206 of 1959, which created the initial exemption, did not purport to amend Act 250 of 1937. As mentioned above, it dealt with police pension and relief funds for cities of over 75,000 population and referred to Act 250 of 1937 for the basic procedures and then created the exemption. It was codified as Ark. Stat. Ann. § 19-1802.1. Each of the subsequent acts raising the property valuation level for exemption amended § 19-1802.1, not § 19-1802. The general assembly showed that it did not regard the exempting legislation as having been previously repealed when it specifically repealed it by Act 690 of 1987. See N. Singer, Sutherland Statutory Construction, § 23.11 (4th Ed. 1985). In view of this history of the legislation, we conclude the exemption was in effect during the period in question.

2. Special legislation

Statutes are presumed not to be unconstitutional, and they will not be struck down unless they conflict with the Constitution “clearly and unmistakably.” Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932). Amendment 14 prohibits the general assembly from passing local or special acts. An act is special if by some inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate. A local act is one that applies to any division or subdivision of the state less than the whole. Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock v. Beard, supra; Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969).

When the exemption was made to apply to cities with over $200,000,000 property valuation, it applied only to Little Rock. Classification among geographical or political subdivisions is permitted if the general assembly could have had a rational basis for it, Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959); Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934), and the fact that the classification includes only one city does not necessarily mean that it is “local” in the constitutional sense. See Mankin v. Dean, 228 Ark. 752, 310 S.W.2d 477 (1958).

The fund is supported by percentages of fines collected and may also be supported by a tax on all taxable property in a city having a fund. Ark. Code Ann. §§ 24-11-403 and 24-11-404 (1987). We agree with the city’s argument that the general assembly could have concluded that a city or cities with the highest amount or amounts of taxable property could contribute enough from that source to make contribution from municipal fines unnecessary.

3. The testimony

The testimony of the former state legislator with respect to his intent in introducing the exempting legislation was clearly inadmissible. Atkinson v. Board of Trustees of the University of Arkansas, 262 Ark. 552, 559 S.W.2d 473 (1977); Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007 (1935).

The board cites Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929), for the proposition that we look to the practical effect of legislation in making our determination whether it is special or local in nature. That is exactly correct. The board argues that the testimony of the fund administrator should have been admitted as it would have shown that the practical operation of the legislation was to set Little Rock apart, and thus the testimony was relevant.

The exclusion of the evidence was correct for two reasons. First, no one contends that the legislation in question is not local or special in the sense that when it was passed it affected only Little Rock, and more recently has affected only Little Rock and a few other cities. The question, rather, as noted above, is whether the general assembly could have had a rational basis for making the classification. The testimony of the administrator had no bearing on that issue. Second, it is impossible to tell from the proffered testimony whether the Little Rock fund suffers in terms of soundness because of the exemption. The witness refers to one biennial evaluation done in 1984 from which she concluded that more contributions were needed. She did not, however, reach any conclusion whether the fund would have been sound in 1984 had the city contributed the percentage of municipal fines sought by the board, nor did she say how the soundness would be affected by the city’s agreement to pay the 10% of fines collected for violations of state laws and for disciplinary suspensions.

4. Newly discovered evidence

The board moved for a new trial contending that the general assembly’s repeal of the exemption was newly discovered evidence showing that the law violated the Constitution. Act 690 of 1987 was signed into law on April 7, 1987. While we have strong doubt that this act shows the exemption legislation to have been unconstitutional, it clearly could have been discovered before the judgment in this case was entered on June 19, 1987. Ark. R. Civ. P. 59(a)(7). Big Rock, Inc. v. Missouri Pacific Ry., 295 Ark. 495, 749 S.W.2d 675 (1988); Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987).

Affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. My dissent is based primarily on Amendment Fourteen to the Arkansas Constitution which reads in its entirety as follows:

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

The amendment is short and simple. There is no need to resort to complicated rules of interpretation. As we have stated so many times statutes are to be construed in accordance with their plain and ordinary meaning. This makes sense. Why complicate a statute by reading in all sorts of exceptions in order to accommodate special situations. That is exactly contrary to what the people of the state of Arkansas expected by the adoption of Amendment Fourteen.

I disagree with the majority in upholding this special and local legislation especially when it has already been expressly or impliedly repealed. In addition, I believe the majority opinion errs in excluding the proffered testimony of Ralph Patterson and Kathryn Hinshaw in its entirety.

The Policemen’s Pension and Relief Fund was first established by Act 250 of 1937. Act 250 provided that cities with 16,000 or more inhabitants shall add to such funds ten percent (10%) “of all fines and forfeitures collected by the police department of such city for violation of city ordinances . . . .” The act did not provide an exemption for any city.

Act 206 of 1959 created an exemption for the city of Little Rock from paying into the policemen’s pension fund ten percent (10 %) of all fines and forfeitures collected by the police department for violation of city ordinances. Section 2 of this act in part provided: “any city that now has, or hereafter has, an assessed property valuation in excess of $80,000,000” is exempted from adding to the policemen’s pension fund the ten percent (10 %) of all fines and forfeitures collected. At the time of the enactment of Act 206 the exemption applied only to the city of Little Rock.

The exemption, created for the city of Little Rock, had the effect of severely underfunding the pension plan between the years of 1959 and 1981. By 1981 the policemen’s pension plan for the city of Little Rock was not financially able to meet the pension and retirement benefits according to state standards. This sad state of affairs is more proof that local and special legislation is generally unwise. Had the city of Little Rock not obtained passage of Act 206, exempting the city from paying some of the funds required to be paid by other cities, the Policemen’s Pension and Relief Fund for the city would no doubt have been in a stronger financial condition.

The legislature attempted to correct this mistake by enactment of Act 486 of 1981. This act increased the amount of money added to the fund by the city through contributions collected from forfeitures and fines, and deleted the special exemption for the city of Little Rock. The act mandated that all cities add to the fund the ten percent (10%) of all fines and forfeitures collected for violation of city ordinances and state laws. Act 486 followed word for word, with minor changes, Act 250 of 1937. It is apparent that the legislature did not feel the need to specifically state that “the exemption is no longer applicable to the city of Little Rock.” Act 486 was expressly made applicable to all cities.

Section 2 of Act 486 of 1981 states: “Section 2 of Act 250 of 1937, as amended, the same being Arkansas Statute 19-1802, is hereby amended to read as follows: Section 2.....” Act 486 then reenacted Section 2 of Act 250 essentially as it was originally enacted with two exceptions: the 10 % of fines and forfeitures was expressly extended to include fines relating to state laws as well as city ordinances; and no cities were exempted from any of the provisions of the act. The 1981 act concluded by stating: “All laws and parts of laws in conflict with this Act are hereby repealed.” In spite of this clear and express language, the city of Little Rock continued to evade its duty to follow the law and provide for proper and adequate funding for its police department retirement benefits. For its failure to do the just and right thing in the matter, the city argues that its own “special exemption” had not been expressly repealed by the 1981 act.

It became apparent to the General Assembly that the city of Little Rock was not, under any circumstances, going to comply with the 1981 act, even though the city had to be aware of the serious financial plight of the policemen’s pension fund. In obvious disgust with Little Rock’s continued defiance of the law and neglect and abuse of the retirement benefits for its policemen, the General Assembly enacted Act 690 of 1987. This act states: “The third sentence of Section 2 of Act 206 of 1959 as amended, the same being Arkansas Statutes 19-1802.1, is hereby repealed.” There is now no escape from its legal and moral obligations because the third sentence of Act 206 was Little Rock’s own special exemption from fully and fairly contributing to the policemen’s retirement fund. Although this exemption had been at least impliedly repealed in 1981, it cannot now even arguably be said that the exemption still exists.

Unfortunately the pension plan has deteriorated to such an extent that the plan will not be adequately funded for several years. Hopefully the fund will be able to provide all of the benefits which will be required. However, this would currently not be a problem had the city simply complied with the 1981 act as was intended. All other cities having such a plan complied.

The adverse consequences of the 1959 act and the financial condition of the policemen’s pension plan should have been examined by the trial court. The testimony of Kathryn Hinshaw, the executive director of the pension plan, should have been admitted. The majority states that “it is impossible to tell from the proffered testimony whether the Little Rock fund suffers in terms of soundness because of the exemption.” Why else would the Little Rock fund be financially unable to meet retirement and pension benefits? The proffered testimony of Ms. Hinshaw was directly on point. There are four sources from which contributions are made to the pension fund. These are: (1) deductions from the policemen’s salary, matched by contributions from the municipality; (2) fines and forfeitures for the violation of state laws; (3) millage levies; and (4) ten percent (10%) of the fines and forfeitures collected by the police department for violations of city ordinances. The city of Little Rock has contributed to the fund through all of the above except number (4). Therefore it is only logical that its failure to pay the ten percent (10%) is the reason the plan is underfunded.

The city of Little Rock has since 1959 not been paying ten percent of the fines and forfeitures collected. Now the policemen’s pension fund needs an additional $1.4 million per year to meet adequate funding requirements established by state standards. The plan is primarily underfunded because special and local legislation has exempted the city of Little Rock from paying the ten percent (10%) of fines and forfeitures which all other cities have been required to pay. The testimony of Kathryn Hinshaw would have enabled the trial court to have made this determination. Also, the testimony of Ralph Patterson was relevant as to the history of the act even if inadmissible to show the intent of the legislature.

It is unfortunate and disappointing that the state’s largest and wealthiest city has so woefully neglected and underfunded the retirement benefits for its policemen. I can find no rational state purpose for the exception created by the special and local amendment to the statute exempting Little Rock from paying its full share into the retirement fund. The only way to partially repair the damage to the policemen’s retirement fund is to require the city to pay the funds it illegally withheld during the years 1983, 1984 and 1985.

Apparently the General Assembly has retreated somewhat from its foray into the special and local legislative field. Such ventures by the General Assembly in the past caused the people to rise up and pass Amendment Fourteen. Hopefully, it will not be necessary for the people to take similar measures once again. This court could help guide the way by strictly following Amendment Fourteen, just as it reads.

Hickman, J., joins this dissent.


author: David Newbern, Justice.

text:
    GENERAL TELEPHONE COMPANY of the Southwest v. ARKANSAS PUBLIC SERVICE COMMISSION
    88-27
    751 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988
    [Rehearing denied July 5, 1988.]

      William G. Mundy; William H. Ballard; and Mitchell, Williams, Selig, Jackson & Tucker, by: Kent Foster, and Michael OMalley, for petitioner.

      Ivester, Henry, Skinner & Camp, A Professional Corporation, by: Herman Ivester, and of counsel: Richard C. Hartgrove and Garry S. Warn, for amici curiae ALLTEL Arkansas, Inc. and Southwestern Bell Telephone Company.

      Gilbert L. Glover and Art Stuenkel, for respondent.
   David Newbern, Justice.

General Telephone Company of the Southwest (company) petitioned the Arkansas Public Service Commission (commission) for a rate increase which would have produced $6,410,615 in new revenue. The commission approved an increase of $809,001. Upon rehearing, the amount was reduced to $159,165. In General Telephone Company v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988), the Arkansas Court of Appeals affirmed the commission in all respects, and this court granted certiorari upon the company’s request that we review matters in the court of appeals’ decision which are of legal significance and public interest. The company contends the court of appeals erred in finding it was not improper for the commission to have used an evaluation procedure called the “modified balance sheet approach” to determine working capital needed by the company. It is also contended that the court erred in approving the commission’s consideration of savings which would accrue to the company in the future and not during the limited time required by statute to be used as a sample or test period to evaluate the need for additional revenue. Finally, the company contends the court erred in permitting the reduction on rehearing to stand because the rehearing had been sought by the commission staff (staff) which lacked standing to request rehearing. We hold that the use of the modified balance sheet approach to determine working capital is not confiscatory, that the commission’s consideration of savings to be achieved in the future was permissible because the changes which would bring them about were implemented during the statutory period, and that the company was not unfairly prejudiced by the rehearing at the instance of the commission staff. The decision of the court of appeals is affirmed.

1. Methods of determining the need for higher rates

a. Working capital and “return on return”

One of the assets needed by a utility to provide service is cash working capital. It needs enough money to be able to pay the costs of providing service to the consumers during the time it must wait for the consumers to pay for the services. The company presented to the commission a study which figured the value of its needed working capital on the basis of its entitlement to the amount the consumers would pay for the services, and it asserted it was entitled to a return (comparable to interest or profit) on that asset just as on any other asset of the company. The commission staff had prepared a study in which the amount of working capital was figured on the basis of the company’s entitlement to consider the cost of providing the service, rather than the price of the service to the consumers, as an element of working capital. The staffs study thus showed an asset substantially smaller than the company’s study. The effect of using the staff approach was to allow the company a return on a smaller asset. The company argues that was improper because it is entitled to a return on that which it has coming, i.e., the price of the service. The commission argues the company is entitled only to a return on an element of working capital determined by the cost to the company of providing the service.

In a hearing before the commission, the staff presented testimony showing that the study done by the company was erroneous in several respects and that the staff had attempted to work with it but found it impossible to make the corrections needed in time to use the company figures in the hearing. The staff therefore presented its study, and the commission based the result it reached on the staff study. The modified balance sheet approach was thus used by the commission, allowing the company a return on the working capital asset calculated using the cost of providing services rather than the price to be received.

b. “Fungible” liabilities

The other major complaint of the company with respect to the result based on the staff study and the modified balance sheet approach is that it treats all liabilities the same. The company contends it is obvious that some liabilities, such as long-term debt to investors, produce revenue and others, such as money owed for depreciable assets, such as telephone poles, do not. The company’s position is that the staffs approach thus presents an inaccurate picture of the company’s condition. The company argues that it is wrong to treat all liabilities as “fungible.” The company’s point is that it is entitled to a return on its investors’ money which is a liability in the sense that it is money owed to stockholders or bond purchasers. When such a liability is lumped on one side of a balance sheet with other liabilities, such as, for example, accounts payable, sight of the need for a return on the revenue producing liabilities is lost. A fund-generating liability, such as long-term debt to investors, thus may appear to have a cost of zero which the company contends is inaccurate, gives a distorted view of the need for working capital, and leads to establishment of a rate which confiscates its property.

The statute pursuant to which the court of appeals reviews the actions of the commission, Ark. Code Ann. § 23-2-423(c)(3), (4), and (5) (1987), limits the review as follows:

(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
(5) All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.

The court of appeals held that the commission’s decision on the amount of increase in revenues for the company was supported by substantial evidence. General Telephone Company of the Southwest v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988). The company’s argument here is that the method used by the commission and approved by the court of appeals was so inaccurate and improper that it amounted to confiscation of its property.

As we understand it, the approach taken by the commission was based upon an accountant’s long-range evaluation of the company’s needs using a balance sheet rather than the day-today cash flow analysis urged by the company. While we would reverse a decision where confiscatory rate making was evident, Public Service Comm’n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Chicago M. St. P. Ry. Co. v. Minnesota ex rel. Railroad & Warehouse Comm., 134 U.S. 418 (1890), we are not concerned with the method the commission used, and the court of appeals approved, to determine the rate needed to supply the company adequately with working capital. General Tel. Co. v. Arkansas Public Service Comm’n, 272 Ark. 440, 616 S.W.2d 1 (1981). The only cited exception to this general rule that we do not evaluate.methods occurred in Acme Brick Co. v. Arkansas Public Service Comm’n, 227 Ark. 436, 299 S.W.2d 208 (1957). There we held that the commission could not discard means which evaluated the company and its needs for something called a “fair field price” method. We have no such departure from traditional public utility rate-making before us in this case.

The company has accurately demonstrated that the method used by the commission is different from the one it proposed, but it has not demonstrated that the commission’s approach resulted in such a small increase in revenues that its property was confiscated. We accept the company’s argument that the method it proposed is the favored one and has been used far more often than the modified balance sheet approach. While the modified balance sheet approach has not been the subject of a previous Arkansas appellate court decision, it has previously been used and discussed in a published opinion by the commission. Re Arkansas Power & Light Co., 66 PUR 4th 167 (1985). The fact that it is a relatively new method of accounting does not mean that it reaches a necessarily confiscatory result.

The court of appeals correctly deferred to the expertise of the commission once it was determined that the commission’s factual determinations were demonstrated to be supported by substantial evidence. Southwestern Bell Tel. Co. v. Arkansas Public Service Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980). As long as the decision falls within the “zone of reasonableness” we cannot find it was confiscatory. Public Service Comm’n v. Continental Tel. Co., supra. While the company has demonstrated some comparative deficiencies in the modified balance sheet approach, it has not shown that those deficiencies are not otherwise compensated for in the result reached or that the revenue increase received was so unreasonable as to be confiscatory.

2. Savings outside the test period

When a utility appears before the commission to seek a rate increase, it may present data based on its experience during a test period of twelve consecutive months, or it may use experience data from a six-month period along with projections for another six months. Ark. Code Ann. § 23-4-406 (1987). The statute also provides, in part:

However, the commission shall also permit adjustments to any test year so utilized to reflect the effects on an annualized basis of any and all changes in circumstances which may occur within twelve (12) months after the end of the test year where such changes are both reasonably known and measurable.

The company chose 1984 as its test year. During 1985 the company instituted a number of efficiency programs designed to save expenses in providing service to the rate payers. The commission used its information about these programs, which were instituted in 1985, to determine the company’s need for additional revenues was not as great as it might otherwise have been. The company argues that it was error to use this information because the savings were, for the most part, not to be realized until after 1985.

We have only to read the language quoted from the statute to decide that the commission did not abuse its powers in this respect. The “changes in circumstances” were “reasonably known and measurable,” and they occurred during twelve months after the test year.

3. Staff standing

The company argues that it was improper for the commission to allow its staff to seek the rehearing of its order which resulted in the reduction of the amount of new revenue it was to allow the company. The statute governing rehearings before the commission, Ark. Code Ann. § 23-2-422 (1987), provides, in subsection (a), that application for rehearing may be made by “[a]ny party . . . aggrieved by an order issued by the commission.” The commission argues it has the power to make rules and that it has, by its Rule 1.05, provided that its staff is to be bound by the commission’s rules as a party. In the first order issued in this case, the commission designated the staff as a party. The commission argues that the company waived its right to object to the staff being treated as a party before it by not raising the issue until it filed its motion to dismiss the staff’s rehearing application.

A quick look at the statutes providing for rate hearings before the commission shows the commission to be, without doubt, a quasi-judicial body. See Ark. Code Ann. §§ 23-2-401 through 23-4-424 (1987 and Supp. 1987). It is troublesome that an agency which is placed in a decision-making role can have its own staff before it as a party. Even if the internal operating procedures of the commission kept the commissioners totally isolated from their staff, and we assume that is not the case, we would find a serious appearance of impropriety in this situation. It is a little like a judge making his or her law clerk a party to a case even though the law clerk has a close association with the judge, is his or her employee, and has the judge’s ear before and after the hearing.

We have real doubts about this situation, especially now that the Arkansas Attorney General may represent the public interest in these cases, Ark. Code Ann. § 23-4-305 (1987). In this case, however, we find no specific, unfair prejudice in permitting the staff to ask for rehearing. Arkansas Code Ann. § 23-2-426(a) (1987) provides: “The commission may at any time, and from time to time, after notice, and after opportunity to be heard as provided in the case of complaints, rescind or amend by order any decision made by it.”

While we find no prejudice resulting from the treatment of the staff as an adverse party before the commission in this case, this opinion should not be read as generally approving a situation we regard as giving an appearance of impropriety. In other instances prejudice may be demonstrated to have resulted from this apparent conflict. For now, we will reserve judgment on the matter.

Affirmed.

Hays, J., not participating.


author: Tom Glaze, Justice.

text:
    John W. SCULLY and Margaret Scully, His Wife v. Frederick MIDDLETON
    88-30
    751 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988

      Lesly W. Mattingly, for appellants.

      Matthews & Sanders, by: Marci Talbot Liles, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s granting of the appellee’s motion for summary judgment in appellants’ tort cause of action. Appellants’ sole point for reversal is that the trial court erred in its ruling that there were no genuine issues of fact to be determined and that the appellants were not entitled to recover from the appellee as a matter of law. We find no error, and therefore we affirm.

Appellant John Scully and a co-worker, Bruce A. Jones, were performing construction work on appellee’s property when Jones was injured by a shock he sustained from a defective electrical outlet. Almost three weeks later, Jones, while putting up trusses with Scully, suffered a black-out or fainting spell allegedly caused by his injuries from the electrical shock. When Jones blacked out he lost control of the truss causing it to fall, knocking Scully to the floor and injuring him. Scully and his wife filed suit against the appellee for the damages arising from his injuries.

As we have stated numerous times, summary judgment is an extreme remedy which will be granted only when there is no genuine issue of material fact. See, e.g., Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). In reviewing the granting of summary judgment, this court has stated that the burden of proving that there is no genuine issue of fact is upon the moving party. All proof submitted must be viewed in the light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Id.

In order to prove liability in this tort case, appellants must allege and show that appellee committed a negligent act and that the negligent act was the proximate cause of the injury. Appellants have failed in both respects, but we need only limit our discussion to the negligence issue.

Negligence is defined as the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. St. Mary’s Hosp. v. Bynum, 264 Ark. 691, 573 S.W.2d 914 (1978), citing AMI Civil 2d, 301. To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner. Id. We have held that before a negligent act may be used as the basis to recover damages, there must be a showing that the negligent act proximately caused the damages sustained and that such damages were reasonably foreseeable. Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987); see also Jordan v. Adams, 259 Ark. 407, 533 S.W.2d 210 (1976); Missouri Pacific R.R. Co. v. Johnson, 198 Ark. 1134, 133 S.W.2d 33 (1939).

When considering the definition of negligence, specifically the foreseeability requirement, as applied to the undisputed facts in this case, we believe only one conclusion can be reached, viz., John Scully’s injuries could not have been reasonably foreseen by the appellee. If the question posed here were whether Jones’s, not Scully’s, injury was foreseeable, the answer clearly would be yes, since any person, who provided a faulty electrical outlet, could have reasonably anticipated a worker using that outlet might sustain an injury. Here, however, Scully’s injuries were not caused by appellee’s defective electrical outlet, but instead his injuries allegedly resulted from a truss that fell on Scully because Jones purportedly blacked-out from the electrical shock he sustained three weeks earlier. On these facts, we are unwilling to hold Scully’s injuries were the result of appellee’s negligence.

Because we agree with the trial court’s finding that appellants were not entitled to a recovery from the appellee as a matter of law, we affirm the court’s decision granting appellee’s motion for summary judgment and dismissing this cause.

       For purposes of this appeal, the parties agreed that the electrical outlet was defective.


author: Harry Truman Moore,

text:
    Don VENHAUS, Pulaski County Judge, Pulaski County, Arkansas v. Gary ADAMS, et. al.
    87-305
    752 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988

      Ivester, Henry, Skinner & Camp, by: Stephen L. Curry, for appellant.

      Brent Baber and Lester W. Mattingly, by: Lester W. Mattingly, for appellees.
   Harry Truman Moore,

Special Chief Justice. This is an appeal from a judgment of the Pulaski County Chancery Court granting judgment for overtime pay incurred during a limited period of time to each of the appellees, who were, during the period of time in question, all deputies in the Pulaski County Sheriffs office. Appellants, Don Venhaus, Pulaski County Judge, and Pulaski County, Arkansas, argue that the trial court erred in determining that Pulaski County is liable for overtime compensation because: (1) the deputies were salaried employees and no legal authority exists for overtime compensation; (2) no legislative appropriation for funds for overtime compensation had been enacted; and (3) no authority exists for the payment of overtime of one and one-half times the deputies’ rate of pay. We agree with appellant’s position on all three issues and reverse.

Appellees were at all times relevant to this cause deputy sheriffs from the Pulaski County Sheriffs office, and had been hired on a salaried basis pursuant to a salary and budget ordinance which established various positions within the sheriffs office by rank, number of positions for each rank, and salary for each position. It is clear from the testimony that appellees often were required to work hours in excess of 40 hours, and that there had been various methods used by the sheriffs department in at least two different administrations in determining whether compensatory time off or overtime pay would be given for hours in excess of 40 hours per week.

Throughout the time in question, there was no standard method for either reporting compensatory time, with various divisions within the sheriff’s department having various methods of recordkeeping, or determining how much compensatory time would be given for hours in excess of 40 hours per week, with the testimony varying that compensatory time was given on a “straight-time” basis, “time and one-half’ basis, and even a “two-for-one” basis.

The period covered by the lawsuit also included the entire first term of Mr. Tommy Robinson as Sheriff of Pulaski County. It is clear from the testimony, including Mr. Robinson’s, that during this period of time there were strained relations between Mr. Robinson and then County Judge William Beaumont, and between Mr. Robinson and several members of the quorum court. During this time, many members of the Pulaski County Sheriff’s Department, including several of the appellees herein, also formed a union and attempted to be recognized by the sheriff and the Pulaski County Quorum Court.

After numerous preliminary hearings, a trial on the merits with respect to the issue of overtime pay commenced on May 31, 1984, and after hearing extensive testimony over a period of several months, the trial court issued its order dated August 13, 1985, finding the appellant, Pulaski County, liable to the appellees for all hours worked in excess of 40 hours per week beginning September 10, 1981, and ending March 9, 1982.

The appellees then moved for reconsideration of the rate of compensation for overtime hours, and following additional hearing the trial court, by its order of April 15,1986, ordered that the overtime hours during the period of liability be compensated at one and one-half times the regular rate of pay. A total judgment in the amount of $61,433.32 was entered against appellants.

The appellees had attempted to recover from the county on several theories. They claimed that they were entitled to be certified as a class. They claimed that they were entitled to be paid overtime for all hours worked in excess of 40 hours per week for a period beginning prior to 1981. They claimed that they were entitled to recover under the terms of a collective bargaining agreement between the sheriff and the appellees. They claimed that they were entitled to overtime pay since it was promised by the sheriff and claimed that the quorum court had delegated authority to the sheriff to bind the county. They claimed that they should recover under theory of restitution. They claimed that they were entitled to rights under the statutory law concerning overtime pay. Finally, they claimed that they performed necessary services to the county and should be paid, notwithstanding the fact that the quorum court failed to appropriate funds for overtime pay. The trial court agreed only with the last theory of recovery. While the appellees raised several of these theories in their notice of cross-appeal, their brief was limited to the argument that the trial court did not err in finding that appellants were liable for overtime compensation to appellees. Accordingly, we will consider that argument first.

I. The trial court erred in finding that appellants were liable for overtime compensation to appellees, because appellees are salaried employees and no legal authority exists for overtime compensation.

There is no federal or state authority which would have required the appellants to have paid overtime compensation to salaried employees.

First, the Federal Fair Labor Standards Act of 1938, as codified in 29 U.S.C. Section 201, et seq., originally provided overtime compensation for specific employees engaged in interstate commerce activities. In 1974, Congress amended the act by extending the overtime requirement to public agency law enforcement and fire protection employees. However, in National League of Cities v. Usery, 426 U.S. 33, the United States Supreme Court struck down that portion of the Act which pertained to employees performing traditional governmental functions, including law enforcement. The Supreme Court reasoned that this inclusion interfered with the State Sovereign Power to establish wage and overtime controls on its employees or those of its political subdivisions.

The Arkansas Statutory Law concerning overtime pay reveals a similar exclusion for governmental employees. The “Minimum Wage Act of the State of Arkansas,” now codified as Ark. Code Ann. Section 11-4-201, et seq., provides for overtime compensation for particular employees who work in excess of forty (40) hours per week. However, Ark. Code Ann. Section 11-4-203(7)(C), in defining “covered employees,” specifically exempts those employed “by the state or any political subdivision thereof, except public schools and school districts.”

II. The trial court erred in finding that appellants are liable for monetary overtime compensation to appellees, because no legislative appropriation of funds have been enacted.

The appellants next contend that there was no liability for overtime compensation for appellees because there was no legislative appropriation funds. We find this argument meritorious.

The authority to establish both the number and compensation of all county employees, including deputy sheriffs, is clearly vested in the quorum court of each county pursuant to Amendment 55 to the Arkansas Constitution. Beaumont v. Atkinson, 267 Ark. 511, 593 S.W.2d 11 (1980). The enabling legislation for Amendment 55 was Act 742 of 1977, now codified as Ark. Code Ann. Sec. 14-14-101, et seq. In regard to the quorum court’s specific legislative authority, Ark. Code Ann. § 14-14-801 provides:

(a) As provided by Arkansas Constitution, Amendment 55, Section 1, Part (a), a county government, acting through its quorum court, may exercise local legislative authority not expressly prohibited by the Arkansas Constitution or by law for affairs of the county.
(b) These powers include, but are not limited to, the power to: . . . (2) appropriate public funds for the expenses of the county in a manner prescribed by ordinance;... (6) fix the number and compensation of deputies and county employees.

While it is clear that a county sheriff has the authority to appoint his deputies, it is equally clear that the compensation for these individuals is within the exclusive jurisdiction of the quorum court. The record discloses that a clear majority of the individual appellees who testified at trial admitted their knowledge of county legislative proceedings and the requirement of an appropriation by the quorum court as a condition to their employment and pay.

The record also clearly reflects that the annual budgets as adopted by the Pulaski County Quorum Court in the two fiscal years encompassed by the trial court’s orders, i.e., the last part of 1981 and the first part of 1982, appropriated only annual salaries for appellees’ compensation and no appropriation was made for overtime pay.

The trial court found, however, that between September 10, 1981, and March 9, 1982, that a period of overtime for “necessary” services obligated the county to pay hourly pay for all hours worked over 40 hours per week even absent a valid appropriation for overtime pay. The court found that the additional services were required as a result of the litigation in Federal District Court, Billy Hill, et al. v. Pulaski County, et al., E.D. Ark. No. LR-C-79-465.

The court found that such necessary services are mandated by Ark. Code Ann. Sec. 14-14-802, which provides:

(a) A county government, acting through the county quorum court, shall provide, through ordinance, for the following necessary services for its citizens:
(1) The administration of justice through the several courts of record of the county;
(2) Law enforcement protection services and the custody of persons accused or convicted of crimes; . . .

In making its ruling, the trial court relied upon this court’s holding in Union County v. Union County Election Commission, 271 Ark. 286, 623 S.W.2d 827 (1981). In Union County, the election commission had requested an appropriation of $7,500.00 to prepare appropriate ballot forms and to set up an election machine. The quorum court, in response to this request, appropriated only $3,500.00 of the requested $7,500.00. The election commission later submitted a claim in the amount of $7,500.00, but the Union County Judge refused to honor the election commission’s claims since the claim exceeded the existing appropriation. The lower court directed the county judge to pay the election commission’s total claim despite the lack of a legislative appropriation.

However, in reversing the trial court’s decision, this court held:

The amount allowed for voting machine preparation is not fixed by state law and there is nothing in Amendment 55, the revision of county government amendment, and nothing in Ark. Stat. Ann. Sec. 17-3101 through 17-4208 (Repl. 1980 and Supp. 1981), the County Government Code, to prohibit or to curtail the power of the quorum court from exercising its discretion on the amount to be allowed, so long as it is reasonable.
The trial court ruled that the commission’s action was not without reasonable basis in setting the amount at $7,500.00. That is an erroneous application of the law because such a standard means that an agency of county government which is obligated by law to perform a specified function has the discretion to determine the amount of money to be spent, rather than the quorum court. We hold that an agency of county government which performs a function imposed by law must live within its appropriation unless that appropriation is unreasonable. Appropriations made by the quorum court are presumed to be reasonable and the burden rests on the entity filing the claim in excess of an appropriation to prove unreasonableness.

Did the appellees meet their burden of proving that the appropriations in the 1981 and 1982 budgets for the operation of the sheriffs office were unreasonable? We think not.

First, there was no finding by the trial court that the individual appropriated salaries were unreasonable. Even though the sheriffs testimony indicated his bitterness toward the quorum court for cutting $300,000.00 from what he had thought his department’s budget was going to be for 1981, the record also reflects that the county was experiencing a revenue shortfall and also faced a cut back in federal revenue sharing funds. The initial budget for the sheriffs department for 1981 totaled $3,400,000.00, of which sum $2,587,000.00 was appropriated for salaries for sheriffs department employees. The record also reflects that the budget ordinance was later amended to add an additional $600,000.00 appropriation for the sheriffs department for 1981, even though this resulted in the transfer of funds from other departments. The uncontradicted testimony of Mr. Lawrence L. Goddard, a member of the Pulaski County Quorum Court, indicates that the appropriations for the sheriffs department totaled one-third of the entire Pulaski County budget.

The trial court attempted to support its findings concerning the necessity of the overtime pay on the order entered in the Federal District Court on December 4,1981, which required that 45 % of the officers in the sheriffs department staff the Pulaski County Jail. While we are sympathetic with the dilemma placed on the sheriffs office as a result of the Federal Court order, we also find that the manner in which the Pulaski County Quorum Court reacted to the terms of the order was reasonable. As previously mentioned, before the end of fiscal year 1981, an additional $600,000.00 was added to the sheriffs department appropriation. Second, the Federal Court litigation concerning the Pulaski County Jail had been pending for ten years, and there is no way that the quorum court could have reasonably known at the time of the adoption of its 1981 budget that such an order as the one entered December 4, 1981, would be forthcoming within that fiscal year. Finally, in the adoption of its 1982 budget, the quorum court funded all the positions required by the Federal Court order.

A review of the Pulaski County ordinances affecting the county’s personnel policy is appropriate. At the time the controversy first arose, Pulaski County Ordinance 255, enacted August 28, 1979, provided that the quorum court shall establish the number and compensation of county employees. The ordinance further provided that the job title, classification, and annual pay rate shall be specified for each budget position of a department or office in the annual budget. This ordinance contained no language concerning definition of the work week.

The second ordinance addressing the “work week definition” was Pulaski County Ordinance 82-OR-19, dated June 22,1982, which amended Ordinance 255. According to testimony by quorum court member Wilandra Dean and Sheriff Tommy Robinson, the ordinance was drafted to address the issue of the additional hours being worked by Pulaski County Sheriffs deputies. The ordinance provided definitions of “compensatory time,” “scheduled overtime,” and defined the term “work week” or “working week,” or “regular work week,” or “normal work week” as meaning 40 hours of work by a county employee during any seven consecutive calendar days.

However, the ordinance further gave the exclusive authority to the quorum court to prescribe the maximum overtime wage appropriation to each agency, to set the maximum rate or rates of overtime pay, and to set the hourly rates for overtime. Any of these provisions would have had to have been prescribed by ordinance.

This ordinance made the existence of a specific and valid appropriation a condition precedent to overtime pay. Since the Pulaski County Quorum Court never appropriated funds to the sheriffs department for the payment of the overtime wages at issue, the trial court erred in awarding a monetary judgment to the individual deputies as no legal authority existed to support such a finding.

Further, it must be noted that the provisions of Ordinance 82-OR-19 did not become effective until 30 days after its passage on June 22, 1982, which was several weeks after the end of the period during which the overtime services were “necessary.”

The issue of entitlement, of governmental employees to compensation absent an appropriation by the appropriate legislative body was recently addressed by this court in City of Greenbriar v. Cotton, 292 Ark. 264, 737 S.W.2d 444 (1987). In that case, the duly elected city marshal of Greenbriar lawfully appointed a deputy to serve as deputy city marshal, but the city council failed to appropriate funds for either salary or expense allowance. The evidence showed that the deputy bought uniforms, worked as many as 60 hours per week, expended funds for the use of his automobile and otherwise performed the official functions of the position. This court found that while a city marshal was empowered to appoint a deputy, the exclusive responsibility of determining whether a salary would be paid was vested in the legislative body, in that case, the city council. Absent an appropriation, no right to compensation in the form of salary or overtime pay accrued.

Here, no one has questioned the authority of the sheriff to appoint his deputies, or to the deputies’ entitlement to an annual salary as appropriated by the quorum court. However, to the extent that additional overtime pay has been ordered by the trial court, such action is contrary to law.

III. The trial court erred infinding that appellants are liable for monetary overtime compensation based upon payment at one and one-half times appellees’ rate of pay.

On motion for rehearing, the appellees successfully convinced the trial court to modify its original ruling allowing compensation for hours worked over 40 hours per week at their regular rate of pay to award pay at time and one-half. We reverse this ruling.

In making its ruling, the court noted a memorandum dated September 10,1981, which was a letter from Major Zoeller in the sheriff’s department to other deputies which stated:

Major Bowman, per our conversation and agreement, the patrol division will staff the correctional facility for all three shifts for those positions which are open Monday, Tuesday and Wednesday. For this involuntary overtime, employees will be paid time and one-half pay.
Thursday and Friday will be staffed by the corrections facility and process will cover Saturday and Sunday.

In modifying its order, the court found that this policy was “codified in 82-OR-19 by implication.” We find no authority which will allow an independent inter-governmental memo to be codified by implication. Further, as previously discussed, the provisions of 82-OR-19 did not become effective until July 22, 1982, were not retroactive, and were clearly not applicable to hours worked between September, 1981, and March, 1982.

Also, the trial court’s reliance upon representations made by one employee of the sheriff’s department to other employees of the sheriff’s department is contrary to this court’s holding in City of Greenbriar v. Cotton, supra. This court has consistently held that in order for a public officer to bind the political subdivision to a contractual obligation, the acts of such official must have been made within his actual authority. Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W.2d 231 (1950). Where, as here, a public officer’s actions exceed his authority, his acts are null and void. Woodward v. Campbell, 39 Ark. 580 (1882). See also Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1983).

Reversed and dismissed.

Holt, C.J., and Purtle J., not participating.

Boyce, Wayne, Special Justice, joins in this opinion.

       While Usery was subsequently overruled in Garcia v. San Antonio Metro Transit Authority, 469 U.S. 528, Usery was the controlling law during the time period in question. Accordingly, appellees are unable to retroactively apply Garcia and rely on provisions of the Federal Fair Labor Standards Act.


author: Per Curiam.

text:
    Raymond WATSON v. STATE of Arkansas
    CR 86-107
    752 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered May 31, 1988

      King & Ponder, by: Kevin N. King, for appellant.

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

The petitioner Raymond Watson was convicted of three counts of receiving stolen property and one count of possession of a controlled substance. He was sentenced to three years imprisonment on each count of receiving stolen property and to ten years for the possession charge for a total of nineteen years imprisonment. His convictions were affirmed on appeal in Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). The petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37.

The petitioner alleges that to convict him of three counts of theft by receiving where the counts constituted one course of continuing conduct violates Ark. Code Ann. § 5-1-110(a)(5) (1987) [Ark. Stat. Ann. § 41-105(e) (Repl. 1977)]. He also claims that his attorney was ineffective for failing to raise the issue at trial.

The petitioner traded some marijuana for two three-wheeled vehicles and some welding equipment which J.R. Robinson, Jr., and Bobby Foster brought to his farm. Robinson and Foster were arrested and they informed the police that they had taken the stolen property to the petitioner and he had given them marijuana in exchange for it. Ultimately a search warrant for the petitioner’s farm was executed and the officers found marijuana, the vehicles, and the welding equipment.

The petitioner argues that since he received the stolen property in one transaction, he cannot be convicted of three separate counts of receiving stolen property. He cites Ark. Code Ann. § 5-1-110(a)(5) which provides:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
* * *
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

The statute which defines theft by receiving provides:

(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

Ark. Code Ann. § 5-36-106 (1987) [Ark. Stat. Ann. § 41-2206 (Repl. 1977)].

The basis of the crime, therefore, is receiving the stolen property. The petitioner did that during one transaction. See Gilmore v. State, 110 S.W.2d 355 (Mo. App. 1986). In Rowe v. State, 171 Ark. 20, 607 S.W.2d 657 (1980), we said that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. In this case the petitioner received the stolen property only once, not on several occasions. Under these circumstances we hold that only one conviction for theft by receiving should lie. See Yarbrough v. State, 257 Ark. 732, 520 S.W.2d 227 (1975).

Although this issue was not raised at trial, it involves a question of double jeopardy which if meritorious is sufficient to void the judgment. We therefore set aside two of the convictions and sentences for theft by receiving. The convictions and sentences for one count of theft by receiving and one count of possession of a controlled substance are not disturbed.

Petition dismissed; sentence modified.


author: Darrell Hickman, Justice.

text:
    Tillman Clayton RUSSELL v. STATE of Arkansas
    CR 88-15
    751 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      Jack D. Files, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Tillman Russell was convicted of possession of marijuana with intent to deliver and sentenced to 25 years imprisonment. He is a habitual offender with eight prior felony convictions. His three arguments on appeal are meritless.

He first argues that four packets of marijuana, a “roach,” and a pipe, which were found in his vehicle, were illegally seized and should not have been admitted into evidence. He also argues that statements he later made should have been suppressed because they were a result of the illegal seizure. We cannot say the trial court clearly erred in allowing this evidence to be introduced. On appeal all evidence is viewed in a light most favorable to the appellee. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Two officers in a state police vehicle passed Russell, who was proceeding in a vehicle in the opposite direction. They clocked Russell at 67 m.p.h. and turned around to stop him. (The speed limit at the time was 55 m.p.h.) When Russell pulled over, he immediately exited his vehicle arid walked back to the police vehicle. One officer approached Russell’s vehicle and saw a small pipe in the vehicle on the “hump” between the two front bucket seats. He also saw a “roach” lying on the console. The other officer was called to look in the vehicle. Based on experience, the officers considered it a pipe used to smoke marijuana. Upon opening the vehicle door, the officers found the packets of marijuana under a shoe box, which was turned upside down on the front floorboard.

Undoubtedly the pipe was in plain view and, considering the evidence most favorable to the state, so was the “roach.” Therefore, the seizure was not in violation of the Fourth Amendment. The officers testified that Russell was stopped for speeding and erratic driving. One officer testified that as they were pursuing Russell, the vehicle moved in an erratic manner and the driver moved around inside the vehicle, leaning over into the passenger side as if he were hiding something. The initial stop was legal; the officers had a right to look into the vehicle, and seeing contraband, had a right to see if other contraband were in the vehicle. United States v. Ross, 456 U.S. 798 (1982). In Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987), we upheld a seizure under strikingly similar circumstances.

Russell’s second argument is that the trial judge should have recused because he was a deputy prosecuting attorney at the time of one of Russell’s prior convictions; also he had refused to file charges against an individual on Russell’s request. We are asked by the appellant to overrule our decision in Jordon v. State, 274 Ark. 572, 626 S.W.2d 977 (1982). The trial judge in Jordon was the prosecutor, not merely a deputy, and we still held it was not necessary for him to recuse. The appellant has demonstrated no basis for requiring this judge to recuse.

Finally, Russell argues he was improperly sentenced. He argues that since he was convicted under the controlled substances act, he should be sentenced under its enhancement provision, Ark. Stat. Ann. § 82-2624 (Repl. 1976) [Ark. Code Ann. § 5-64-408 (1987)], which provides:

(a) any person convicted of a second or subsequent offense under this chapter shall be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

Russell was sentenced under Ark. Stat. Ann. § 41-1001 (Repl. 1977) [Ark. Code Ann. § 5-4-501 (1987)], the general statutory provision for sentencing habitual criminals.

It is undisputed that Russell had eight prior felony convictions, four of which were for delivery of controlled substances; however, four of the convictions were for other felonies: a burglary and theft, theft by receiving, and two separate convictions for failure to appear.

We reject Russell’s argument that Ark. Stat. Ann. § 82-2624 mandates that he be sentenced under that statute. First, § 82-2624, which was enacted after § 41-1001, does not preclude sentencing a habitual criminal under § 41-1001. Second, when two punishment statutes exist, a court is not prevented from using the more stringent provision. Rowe v. Lockhart, 736 F.2d 459 (8th Cir. 1984). More importantly, four prior felonies in this case were not drug related. Surely the legislature did not intend to prevent a habitual offender from being sentenced under the habitual criminal statute simply because he is being convicted under the controlled substances act and has a prior conviction under the act. Even penal statutes should not be interpreted so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987).

Russell is a habitual criminal under § 41-1001, and we determine that in this case it was not error to sentence him under this act.

Affirmed.