author: Robert R. Wright, Special Chief Justice. Howard W. Brill, Special Justice, Kenneth S. Gould, Special Justice,

text:
    John Steven CLARK v. STATE of Arkansas
    CR 91-120
    824 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      John Wesley Hall, Jr. and Bill W. Bristow, for appellant.

      Wilson, Engstrom, Corum & Dudley, by: Stephen Engstrom, for appellee.
   Robert R. Wright, Special Chief Justice.

Steve Clark, the appellant, was Attorney General of Arkansas from January, 1979 until November, 1990. On July 11, 1990, he was charged with theft by deception, under Ark. Code Ann. § 5-36-103 (1987), of over $2,500, which is a class B felony. He was tried over a period of nine days in October and November, 1990 and found guilty by a the jury of theft by deception of over $200, which is a Class C felony.

This case arose out of investigative reporting that was likely spurred on by the “newspaper war” in Arkansas between the then existing newspapers, the Arkansas Gazette and the Arkansas Democrat. Reporters from those newspapers examined the spending practices of the constitutional officers of the state as contained in vouchers and records, including credit card charges, on file with the state. In examining Mr. Clark’s supporting documentation, it was discovered that he had charged a great many meals to his state-issued Visa credit card and had listed the names of various people, many of them well-known to the public, who had dined with him on specified occasions. The newspapers listed the names of these people. At that point, many of these individuals began to call the newspapers stating either that they had never dined with Mr. Clark or that they had not dined with him at the time and place stated.

This led to an investigation by the Prosecuting Attorney of Pulaski County in cooperation with the investigative division of the Arkansas State Police. All of the financial records of the Attorney General’s office were examined and this information was subsequently filed.

During the trial, the state called 144 witnesses, most of whom were these so-called “phantom diners.” Although a limited number testified that they had dined with the Attorney General and that state business had been discussed, the vast majority testified that they had not dined with him. A few who had dined with him, particularly some female friends of his, testified that the occasion was purely social and that no state business of any kind was discussed.

A great many of these charges were paid for by the state based upon forms and credit card bills submitted by Mr. Clark. On several occasions, Attorney General Clark made trips either with his female friends or to see a female friend in such places as New Orleans, San Francisco, Atlanta and Hawaii. Some of these expenses were legitimate business expenses, as for example when he attended a national meeting of attorneys general. Much of the expense billed the state involved personal matters only, however, such as a wedding party in Hawaii where the Attorney General and his female companion served as witnesses to the wedding of the former attorney general of Oklahoma.

Some of the bills for meals were of reasonable size, but some, were large by anyone’s standard. Many of them involved the extensive purchase of alcoholic beverages, including Dom Perignon. Tips to the waiter or waitress were also included. Mr. Clark’s custom was to pay a small portion of most of these credit card charges and have the state pay the balance.

After this matter first came to light, and before criminal charges were filed, Mr. Clark made restitution to the state of $3,951.29 in connection with expenses of a personal nature. Whether any further amount is due is a matter which is not before the court.

As previously stated, Mr. Clark was convicted of theft by deception in circuit court. He subsequently resigned as attorney general.

We are called upon to determine whether the former attorney general is guilty of theft by deception as the jury found. On appeal, the attorneys for the appellant offer three arguments: (1) that appellant cannot be found guilty of theft by deception as a matter of law; (2) that prosecuting a constitutional officer for theft by deception for violating an appropriation act violates due process of law because appropriation acts contain no criminal penalty and criminalization of such an act would not provide fair notice to the public; and (3) that the trial court erred in not imposing a three year statute of limitations to the state’s charges. We will take them in order although we view the first point as by far the major one to be considered.

The appellant argues that because he had a state-issued credit card, he could use it as he wished. Moreover, he argues that as a constitutional officer, he was not subject to the spending limitations imposed upon state employees in general.

The state law at the time all of this was taking place varied as it applied to the travel expenses and meals of constitutional officers and state employees. In fact, it stated: “The limitations of this subchapter relating to travel regulations shall not be applicable to the constitutional or elective officials and their employees ... or official guests of the state.” Ark. Code Ann. § 19-4-904(a) (1987). However, it goes on to say: “Personal reimbursement will not be allowed to any state official, state employee, or any other person traveling on official business for expenses covering personal entertainment, tips... or other personal expenses, as those expenses shall be defined in the state travel regulations.” Ark. Code Ann. § 19-4-904(b) (1987). (Emphasis added.).

Although part (b) does not contain the language contained in (a) referring to “constitutional or elective officials,” it would not be necessary to refer to state officials otherwise because the term “state employee” would cover everyone else.

Moreover, the source of funding for payment of the Visa card charges came from the Maintenance and Operations (M and O) budget of the office of the attorney general. Certainly, it could never have been the intent of the legislature to permit that budget of between $600,000 and $700,000 per year to be used for personal expenditures. Otherwise, the attorney general, who admittedly has a very low salary for someone in his position, would be able to go out and make all sorts of personal purchases and charge them to the state. That argument, in fact, was advanced at the trial.

The appellant in this regard argues that “personal reimbursement,, is not involved where the charges are made against a state-issued credit card. (Emphasis added.) However, the credit card bills were forwarded to Attorney General Clark, and he completed a state form with the credit card bill attached in order to have the state pay for all or most of the charges. Reimbursing Visa for the charges as opposed to sending a check to the attorney general is something that we regard as a difference without a distinction.

Appellant also urges that the statute quoted previously (§ 19-4-904) was obviously fatally flawed as demonstrated by the fact that the next time the General Assembly met, Act 768 of 1991 was passed. This Act stated in Section 2(A) that all constitutional officers and their employees “shall hereafter” file certain required documents in order to gain reimbursement. Moreover, it specifically prohibited expenditure of appropriated monies for personal use. The argument, in effect, is that the legislature would not have done this if it had not been necessary as a result of Mr. Clark’s case.

We view Act 768 of 1991 as good legislation which sought to expand and make more specific existing law. There was never any intention on the part of the state to allow elected officials to invade maintenance and operating funds for personal use before the enactment of Act 768. The appropriations law prior to 1991 may have been barebones, but to argue that an elected official could covert large sums of appropriated money to personal use is beyond reason.

The appellant argues, based on Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973), that “we must presume that the General Assembly did not intend to purposelessly pass an act, so the act must be taken as indicative of a previous legislative intent that the oil burned by appellant in its recovery process be subject to the tax.” 254 Ark. at 852-853; 497 S.W.2d at 33. That is the general rule. But it would be pure sophistry to assume that by use of a credit card, constitutional officers were free to charge all sorts of personal expenses to the “M and O” budget of the state. Otherwise, there would be nothing to prevent such officers from diverting such funds to the purchase of color TV’s, motor boats, vacation homes and other such personal expenses. Even prior to the recent Act of the General Assembly, it would defy reason to assume that constitutional officers were given carte blanche authority to convert state funds to their personal use.

The Arkansas theft-by-deception statute provides, inter alia, that a person commits theft of property if he “knowingly obtains the property of another person, by deception . . . , with the purpose of depriving the owner thereof.” Ark. Code Ann. § 5-36-103 (1987). The word “deception” is given several definitions, but the two that seem to apply here are: “creating a false impression” that the actor does not believe is true, and “failing to correct a false impression that the actor knows to be false” or that he knows will influence another to whom he stands in a fiduciary or confidential relationship.

The appellant argues that the listing of the “phantom diners” made no difference because the claims would have been paid without any names being provided. Why were the names of these diners provided at all, if that is the case? Several theories have been advanced, but they are speculative. Suffice it to say that a number of these charges were so large that it would be impossible for one normal person or even a couple of people to consume that much food and alcoholic beverages. The listing of the names seems to have provided verification to the auditors that state business was involved. Moreover, the listing of these names would have prevented the auditors from questioning these charges during their annual audits of the M and O budget of the attorney general’s office.

It is true, as appellant argues, that the misrepresentations must have been material and relied upon by the party deceived by them. But in this particular case, seeing those names undoubtedly allayed any questions which would otherwise have been raised by the auditors during the annual audit.

For his second point, appellant argues that prosecuting a constitutional officer for theft by deception for violating an appropriation act violates due process of law because there is no criminal penalty in an appropriation act. Art. 5, § 30 of the Arkansas Constitutional provides that appropriation acts can do nothing but appropriate funds for one specific subject. But that does not mean that someone cannot be charged with theft by deception for improperly taking money from an account created by an appropriation. We find that point to be without merit.

The third point is the question of the statute of limitations. The general statue of limitations for theft is three years. Ark. Code Ann. § 5-1-109(b) (1987). However, the state argued that under Ark. Code Ann. § 5-1-109(b)(2), in regard to public servants, the appropriate statute of limitations was five years. For the five-year statute to apply, it would have to involve an “offense that is concealed involving a felonious conduct in office by a public servant.”

The key word is “concealed.” In keeping with our previous discussion, we are persuaded as was the jury that by use of the names of prominent figures on these expense forms, the appellant was attempting to conceal the truth, at least in many instances. Therefore, the five-year statute of limitations applies.

We hasten to add that it is without question that a state employee or state official may on occasion include charges that the state is not obliged to pay. Further, since the state has many thousands of these to deal with over the course of a year, the state may easily provide reimbursement by mistake for some expense that is inappropriate. Those types of situations should not be handled through criminal charges but through restitution by the state official or employee of the overpayment. Moreover, it is true that the normal action where the payment is disputed would be a civil suit based on repayment of an illegal exaction. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).

The case of Attorney General Clark, however, does not represent that type of situation. It illustrates a pattern of behavior over a number of years involving numerous and sometimes quite expensive charges on the Visa card in which personal expenses were clearly charged. The listing of all of these people, many of them quite prominent, who did not dine with Mr. Clark, and the statements of legitimate state concerns by Mr. Clark in connection with many of these occasions, when state business did not transpire, demonstrates a pattern of intentional deception and concealment. The fact that the appellant might simply write down some names of people who were there in the room, but with whom he had no business, and then list them as diners at his table to discuss legitimate state issues further demonstrates a pattern of deceit.

In an entirely different context, Shakespeare wrote in Julius Caesar, Act I, Scene II:

“Men at some time are masters of their fates. The fault, dear Brutus, is not in our stars, But in ourselves . . . .”

Affirmed.

Holt, C.J., and Dudley, Hays, and Newbern, JJ., not participating.

Special Justice Lonnie Beard joins.

Special Justices Howard Brill and Kenneth Gould concur.

Howard W. Brill, Special Justice,

concurring. I concur in the decision and in the opinion of Special Chief Justice Wright, but write to address several points raised in the briefs and in the oral arguments.

Steve Clark did not commit a crime when he accepted a state issued credit card. The card would have been a convenience, and perhaps a necessity for conducting the work of his office. He did not commit a crime when he offered his state issued credit card to restaurants and other vendors for personal expenses. Such a practice, whether commingled with legitimate business expenses or as a purely personal expense, was permitted by custom, and was not then barred by statute or administrative regulations. No crime was committed when the credit card issuer paid the restaurants and vendors. No crime was committed when the issuer billed Steve Clark for the expenses charged. No crime was committed when Steve Clark asked the State of Arkansas to pay a credit card bill which lacked documentation, names or details of the meetings or expenses. The law at that time did not require such itemization of constitutional officers. An occasional failure to promptly reimburse the state for personal expenses was not a crime.

Instead, the crime of theft by deception, Ark. Code Ann. § 5-36-103(a)(2), was committed when Steve Clark filed documents with the appropriate state agency requesting that the State of Arkansas pay the credit card bill, in whole or in part, representing those expenses as incurred in the course of official state business, while knowing that they were personal in nature.

The task of an appellate court is to review the evidence in the light most favorable to the appellee and to affirm the conviction if substantial evidence supports the jury’s findings. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). Substantial evidence is evidence of sufficient force and weight to permit the fact finder to draw a conclusion one way or the other. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). The evidence presented permitted the jury to conclude that his act of requesting state payment for personal expenses was not a mere oversight, could not be justified as merely a good faith judgment call as to the distinction between governmental and personal expenses, and could not be described as trivial or insignificant in nature. Rather, substantial evidence supports a conclusion that the actions were intentional, systematic and flagrant.

Even if the requests for reimbursement had not mentioned companions, locations or conversational topics, requesting reimbursement for personal expenses would have violated the criminal code. As this Court stated in a taxpayer’s lawsuit, public funds can never be appropriated for a private purpose. Chandler v. Board of Trustees of Teacher Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963). Public funds are to be used for the “necessary expenses of government.” Ark. Const., art. 5, § 31. The necessary corollary is that public funds when properly appropriated for a public purpose cannot be diverted and used for a private purpose.

The basic objective of statutory construction is to carry out the intention of the legislature. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985). Although penal statutes are to be construed strictly in favor of the criminal defendant, the court may use common sense in determining the legislative intent. State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991). Criminal statutes are not to be so strictly construed as to exclude acts which would be included in the ordinary usage of the language. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). Even penal statutes are not to be interpreted in a fashion that would reach absurd consequences that are clearly contrary to legislative intent. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988).

The contention of the appellant that funds appropriated by the General Assembly for the Maintenance and Operations of the Office of the Attorney General could be used by the Attorney General for his private personal expenses offends common sense, is constitutionally unsound at best, and would lead to an absurd conclusion.

“Public employment is a public trust.” See Ark. Code Ann. § 19-11-703(a). In another context, the legislature has decreed general ethical standards for state officials and state employees: “Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee’s duties is a breach of a public trust.” Ark. Code Ann. § 19-ll-704(a)(l). Regardless of position, regardless of appointment, regardless of salary or the perceived inadequacy thereof, regardless of tenure or longevity of service, regardless of prestige, public officials, as well as public employees, are first and foremost public servants. See Ark. Code Ann. § 21-8-402(17). Public servants must never forget that they serve the public.

Public servants, both employees and officers, may be entrusted with the property, money, credit or image of the State. Whether a motor vehicle, office equipment, or financial resources, those assets are entrusted to the servant for a good limited purpose— to be used in furtherance of the public good and the commonweal.

The constitutional principle is clear and unyielding: the legislature may not appropriate government funds for private purposes, and officials may not utilize public funds or public property for private purposes.

Kenneth S. Gould, Special Justice,

concurring. I concur in the decision and join in the concurrence of Special Justice Brill. I write only to emphasize a significant factor in the sequence of events leading to appellant’s commission of the crime of theft by deception.

As noted in Special Justice Brill’s concurrence, the crime was committed when Steve Clark submitted documents to the Department of Finance and Administration requesting that the State of Arkansas issue a check to Simmons National Bank, the bank to which the credit card bill was due. When Steve Clark submitted the bill for payment, he did so on a form on which he, through his agent, a fiscal officer on his staff, certified the following:

1. That the amount set out in the request for payment was a legal account due by the State of Arkansas for services rendered to, or purchase made by, the Attorney General’s Office;
2. That the bill had been determined to be correct;
3. That the bill was in compliance with applicable state purchasing and fiscal laws and regulations; and
4. That substantiating evidence for the bill had been checked and found to agree with the bill.

The form on which this certification was made included a space titled “Description of Services or Purchase.” In regard to the expenses that are the subject of the theft by deception charge, an entry was made in that space indicating that the expenses were for “OFFICIAL BUS MEALS & LODGING.” An example of a completed request for payment form dated November 4,1988, is incorporated as an exhibit to this opinion.

The record is clear that on numerous occasions Steve Clark’s certification that the credit card charges were for official business meal expenses was false and deceptive. As a result of that certification, the State of Arkansas issued a check, based on a deceptively false statement, that it would not have issued had it known that the expenses were personal in nature. At the point the check was issued the State had been deceived, the deception “had pecuniary significance” and the crime of theft by deception was complete.

       See also Art. 5, § 31: “No state tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the State, [or] for defraying the necessary expenses of government. . . .”
      Also, Art. 5, § 29: “No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill. . . .”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Curtis Wayne BOZEMAN v. STATE of Arkansas
    CR 92-19
    821 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Robert P. Remet, for appellant.
    No response.
   Per Curiam.

Petitioner, Curtis Wayne Bozeman, by his attorney, Robert P. Remet, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Mary Elizabeth CIGAINERO v. STATE of Arkansas
    RC 91-61
    821 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Damon Young, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Mary Elizabeth Cigainero, by her attorney, has filed for a rule on the clerk.

Her attorney, Damon Young, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Bennie L. FRY, Jr. v. STATE of Arkansas
    RC 91-56
    822 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Tom Gamer, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Bennie L. Fry, Jr., by his attorney, has filed a motion for a rule on the clerk.

His attorney, Tom Garner, admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

The motion is, therefore, granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    David C. GOODWIN v. STATE of Arkansas
    RC 91-63
    821 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      James Marschewski, for appellant.
    No response.
   Per Curiam.

Appellant, David C. Goodwin, by his attorney, has filed for a rule on the clerk.

His attorney, James Marschewski, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    IN THE MATTER OF Clyde LEE
    821 S.W.2d 48
    Supreme Court of Arkansas
    Delivered January 21, 1992
   Per Curiam.

This is an original contempt proceeding. The facts are as follows: Respondent Clyde Lee is a member of the Bar of Arkansas and was employed to represent two co-defendants, Robert Bogard and George Willis, in a criminal case in the Circuit Court of Columbia County. The case was tried, and the co-defendants were found guilty. George Willis was sentenced to life in prison, and Robert Bogard was sentenced to forty (40) years in prison. By that time, the co-defendants were indigent, and the trial judge, the Honorable John Graves, appointed respondent Lee to represent the co-defendants. Because of the appointment, respondent Lee could receive a fee in this court for his representation of the indigent appellants.

Respondent Lee tendered the record to this court in an untimely manner on April 10, 1991. We granted a motion for a rule on the clerk and set a briefing schedule. The appellants’ brief was due June 8,1991. When no brief was received by September 18,1991, the clerk informed respondent Lee, by letter, of the need to file the brief. The clerk received neither a brief nor an explanation. By December 16, 1991, a brief still had not been filed, and this court issued its order directing the respondent to appear on January 13,1992, and show cause why he should not be held in contempt for failing to file a timely brief.

On January 13, 1992, the respondent appeared before this court without filing the brief and pleaded guilty. He stated that there was mitigating circumstances, asked for leniency, and asked for time to complete the brief.

At the contempt hearing respondent Lee stated that co-defendant Bogard is now deceased, but co-defendant Willis remains in prison without his appeal being heard. The appeal must not be delayed any longer. In the contempt hearing before this court, respondent Lee stated that he has examined the transcript of the trial and is now prepared to write the brief. Accordingly, we order respondent Lee to file the brief in this court within fifteen (15) days from the date of this per curiam.

We accept respondent Lee’s plea of guilt and postpone fixing a sentence until the due date of the brief.


text:
    Richard Lee MITCHAEL v. STATE of Arkansas
    CR 91-150
    821 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Roger T. Jeremiah, for appellant.

      No Response.
   Per Curiam.

On October 11,1990, the appellant, Richard Lee Mitchael, was convicted in the Circuit Court of Crawford County, Arkansas, 12th District, of rape and sentenced to thirty-five years imprisonment. On November 8,1990, appellant filed a motion for a new trial which the trial court denied on January 29, 1991. On February 1, 1991, appellant appealed from his conviction judgment and denial of his motion for new trial and timely filed his record with this court. Roger T. Jeremiah was appellant’s counsel at trial and is also attorney of record in this appeal. .

Appellant’s brief was scheduled to be filed with this court on June 11, 1991, but none was received on that date by the court’s clerk. On October 2,1991, the clerk of this court notified counsel by letter that, while the court’s records reflected counsel’s brief was due on June 11,1991, no brief had been filed as of the date of the clerk’s letter. In his letter, the clerk also requested counsel to respond within ten days to let the court know how counsel intended to proceed. As of the date of this per curiam, counsel has not responded to the clerk’s request, nor has any brief been tendered or filed.

Because counsel, Roger T. Jeremiah, has failed to file a timely brief, request an extension to file one or take any action to explain why a brief has not been forthcoming, it is hereby ordered that he appear before this court on Monday, February 3,1992, at 9:00 a.m., and show cause why he should not be held in contempt.


text:
    Dr. Robert ROSS v. Jimmy PATTERSON, et al.
    90-259
    821 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Phillip Malcolm, for appellant.

      Morgan E. Welch, for appellee.
   Per Curiam.

On February 12,1990, the trial court entered its judgment in favor of the separate appellee, Dorothy Patterson, individually, against the appellant, Dr. Robert Ross, in the sum of $195,000.00 with interest.

On March 14, 1990, Dr. Ross filed a notice of appeal and designation of record designating “the entire record and all proceedings, exhibits, and evidence in the case and documents introduced or proffered, including post trial motions and proceedings or proffered, including post trial motions and proceedings to be contained in the record on appeal.” Contemporaneous with the filing of this notice of appeal, Dr. Ross filed a motion for extension in which to file the record on appeal, noting that the court reporter had informed Dr. Ross that she would be unable to prepare the record and transcript in the normal ninety-day filing period.

Ms. Patterson did not object to Dr. Ross’s designation of the entire record and request that all proceedings be transcribed and included in the record on appeal; however, she did file a formal . objection, with supporting brief, complaining that “all that is sought by the appellant is a delay of the appeal.” She made no mention of the fact that Dr. Ross had designated the entire record.

Ms. Patterson now requests that this court vacate the judgment for costs against her, modify the judgment, and allow her to brief what costs were reasonable and necessary in association with the successful appeal of Dr. Ross. Under the circumstances of this case, Ms. Patterson’s request is without merit and is denied.

Arkansas Sup. Ct. R. 24(b) addresses the taxation of costs upon the reversal of a case and provides that “[a]ppellant may recover brief costs hot to exceed $4.00 per page for printed brief or $3.00 per page for typewritten brief; the total costs not to exceed $500.00, filing fee of $100.00 and certified cost of transcript.”

On November 26, 1991, the Clerk of the Supreme Court filed a mandate for costs against the appellees as follows:

Appellant’s brief $ 500.00
Filing Fees $ 100.00
Record $12,283.00

It has been a long-standing practice of this court, upon reversal of a case, to assess costs in favor of the prevailing party under Rule 24(b). Granted, full costs and fees under this rule can be barsh from time to time; however, we do not feel that, under the circumstances, we should reopen this case for an examination of the record to make a determination as to the assessment or proration of costs, particularly in light of the fact that the non-prevailing party, Ms. Patterson, did not question the designation of the entire record on appeal during the course of the appeal. It was not until we had concluded our appellate review and made the assessments of costs against her that she now complains.

To complain at this late date and ask this court to reexamine the transcript of the trial places an undue burden on the court and, for this reason, the motion to vacate is denied.

Since Ms. Patterson, individually, was the recipient of the judgment against Dr. Ross, it necessarily follows that, as the non-prevailing party, the mandate of the court as to payment of costs must be assessed against her.

While the dissenting members of the court disagree with the results of this case, they concede that Dr. Ross has prevailed in this cause and that this per curiam correctly sets out the court’s rule in awarding costs. Therefore, they concur with the majority to the extent that costs are recoverable to the prevailing party under the circumstances of this case.


text:
    Rickey Ray RECTOR v. Bill CLINTON, Governor of Arkansas, et al.
    92-75
    823 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered January 22, 1992

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Jack Gillean, Dep. Att’y Gen., for appellee. ‘
   Per Curiam.

Rickey Ray Rector brought a declaratory judgment action in the Circuit Court against Governor Clinton, Lieutenant Governor Jim Guy Tucker, Attorney General Winston Bryant, Superintendent of Prisons A.L. Lockhart, Department of Human Services Director Terry Yamauchi, Arkansas State Hospital Division Director Jan Thames, and State Hospital Forensic Unit Director O. Wendell Hall. He asked the Circuit Court to declare unconstitutional Ark. Code Ann. § 16-90-506(d)(1) (1987) which describes the manner of determining whether an inmate facing execution is insane and thus not to be executed.

In addition to declaratory judgment, Mr. Rector sought mandamus or prohibition against his impending execution as a capital felon and asked the Circuit Court to stay his execution pending its decision on all these remedies. A hearing was held, and the Circuit Court declined to give any relief to Mr. Rector who then filed the record from that proceeding with this Court and presented a motion for a temporary stay of execution pending appeal. We deny the motion.

Mr. Rector suffers from an injury to his brain. He shot himself in the head shortly after committing the murder for which he received the death penalty. His contention is that he is ineligible for execution for two reasons. First, in Ford v. Wainright, 477 U.S. 399 (1986), it was held that a state cannot execute persons whose mental illness prevents comprehension of the reasons for the penalty or its implications. Second, he contends the Arkansas standard limiting executions of persons with mental deficiencies is more stringent than that of the Ford case, and should prevent his execution if his current mental impairment prevents him from assisting his counsel in coming up with reasons to stay the execution, citing State v. Helm, 69 Ark. 167, 61 S.W. 915 (1901), and Howell v. Kincannon, 181 Ark. 58, 24 S.W.2d 953 (1930).

At the hearing before the Circuit Court the State conceded that, if Mr. Rector’s condition had changed since earlier determinations that he was eligible for execution under the test of the Ford case, thus making him currently ineligible for execution under that guideline, he would be entitled to a stay. The Circuit Court found that no such change had occurred. Mr. Rector challenges that factual determination. He also reasserts his contention that the Arkansas legal standard on execution of mentally deficient persons is more stringent than that pronounced in the Ford case test.

Mr. Rector was convicted in 1981 of shooting and killing Conway Police Officer Bob Martin. We affirmed the conviction, and certiorari was denied by the United States Supreme Court. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, 466 U.S. 988 (1984). His counsel argued on appeal that we should not permit him to be executed because of his brain injury. In response to that argument, we wrote:

Counsel insist, however, that because Rector’s self-inflicted brain injury had substantially the same effect as a frontal lobotomy, causing him to be mildly retarded mentally and to be somewhat unemotional, the State of Arkansas should not permit the execution of a person in that condition. This case differs, however, from Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), cert. denied 434 U.S. 894, in that there the jury arbitrarily disregarded an impaired mental condition that existed when the crime was committed, which led us to reduce the sentence. Here Rector had no such mental impairment until he attempted suicide after the crime — facts that were before the jury. In our opinion such circumstances arising after the crime affect the matter of clemency and should properly be addressed to the Governor, who has the facilities for investigating all the facts. Although we may reduce a death sentence to life without parole, and have done so in the past, that action is taken as a matter of law, not as an act of clemency.

Although we did not recite the Statute in our opinion, our statement that the matter of competency for execution after the courts have done with the case fits well within the procedure provided by Ark. Code Ann. § 16-90-506 (1987). Subsection (a)(1) suggests that this Court may stay the execution upon “writ of error.” We make no distinction between writ of error and appeal. Pope v. Latham, 1 Ark. 66 (1838). Cf. Rose v. Rose, 9 Ark. 507 (1848). In subsection (c), it is provided that,

The only officers who shall have the power of suspending the execution of a judgment of death are the Governor; in cases of insanity or pregnancy of the convict, the superintendent of the state penitentiary as provided in subsection (d) of this section; and in cases of appeals, the Clerk of the Supreme Court, as prescribed by law.

Subsection (d) of the Statute gives the Superintendent discretion to transfer a condemned felon to the Arkansas State Hospital if the Superintendent has reason to believe the convict under sentence of death is “insane” and “thereupon to notify the Governor of this action.” It is provided that if the inmate is found to be sane, the hospital turns him back to the Superintendent and the Governor sets a date.

It seems clear to us that the Circuit Court had no authority to stay the execution on the basis of the allegation of Mr. Rector’s claim of current insanity; it lacked jurisdiction. That was our specific holding in the Howell case. The appeal of the conviction and the death sentence is long since decided in this Court, and thus the matter rests with the executive branch of government. That is as it should be, as otherwise recurring last-minute appeals on the issue of current sanity could prevent an execution indefinitely with no good reason. Even death cases must come to an end.

In the hearing before the Circuit Court, the Judge stated that there is no Arkansas standard more stringent than that of Ford v. Wainwright, supra. That is correct. Although we quoted a statement from Blackstone in the Helm and Howell cases to the effect that English law precludes the execution of an insane person who might otherwise be able to assist in stating a reason the execution should not occur, that statement had nothing to do with the holding in either of those cases. The Helm case was a forgery conviction appeal, and in the Howell case the issue was whether a circuit court had the power to interfere with an execution after pronouncing sentence. We held that the authority had existed until the General Assembly enacted statutes on the procedure limiting that authority to the Governor, the Superintendent, and this Court.

As to Mr. Rector’s contention that the Circuit Court erred in holding that the United States Constitution, as interpreted in Ford v. Wainwright, precludes his execution, we are not convinced of any error. Before the Circuit Court was the record of federal court proceedings. Mr. Rector was sent by the United States District Court to the United States Medical Center for Federal Prisoners for evaluation. The psychiatrist and psychologist who reported to the Court in 1989 observed Mr. Rector for 30 days and reported that he was aware of the punishment about to be inflicted on him and why. They also reported that “Mr. Rector would have considerable difficulty due to his organic deficits in being able to work in a collaborative, cooperative effort with an attorney,” and that Mr. Rector would “not be able to recognize or understand facts which might be related to his case which might make his punishment unjust or unlawful.”

The latter determination was made in response to the District Court’s request that Mr. Rector be evaluated not only on the basis of the Ford case test but the test according to § 7-5.6 of the American Bar Association Criminal Justice Mental Health Standards. The ABA test adds to the Ford case test the requirement that the convict possess the ability to inform counsel or the court of any fact which might exist which would make the punishment unjust or unlawful.

The District Court found that the Ford case test had been satisfied in Mr. Rector’s case and that the ABA standard was irrelevant. Relief was refused, Rector v. Lockhart, 727 F. Supp. 1285 (E.D. Ark. 1990), and that decision was affirmed. Rector v. Clark, 923 F.2d 570 (8th Cir. 1991), cert. denied sub nom. Rector v. Bryant,_U.S__, 115 L.Ed.2d 1038; reh. denied_ U.S__,115 L.Ed.2d 1115.

Our decision is (1) the Circuit Court lacked jurisdiction to stay the execution on the basis of the allegation that Mr. Rector is ineligible for execution due to his mental condition, (2) even if that Court had such authority we could not disagree with its finding that there had been no change in Mr. Rector’s condition since his evaluation by federal authorities in 1989, and (3) Arkansas law does not pose for execution of a person who may be mentally deficient a standard different from that declared by the United States Supreme Court in Ford v. Wainwright. The matter of clemency rests with the executive branch.

The motion is denied.

Corbin, J., concurs.


author: Jack Holt, Jr., Chief Justice.

text:
    Birdie H. CAVIN v. Wylie CAVIN
    91-242
    823 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992
    [Rehearing denied March 2, 1992.]

      Henry Hodges, for appellant.

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price, for appellee.

      Brown, J., not participating.

   Jack Holt, Jr., Chief Justice.

This is an appeal from a divorce decree in which the appellant, Birdie Cavin, claims the chancellor erred in dividing marital assets. Mrs. Cavin claims the chancellor erred, first, in ordering an unequal distribution of assets pursuant to Ark. Code Ann. § 9-12-315 (1987) and, second, in failing to divide the proceeds of Mr. Cavin’s sale of an antique gun and two life insurance policies.

Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c), as the case involves statutory interpretation and construction. We find no merit to the appeal, and affirm.

The parties were married on October 1, 1929. They separated on March 25, 1965, and have lived apart since that time. Mrs. Calvin filed this action for divorce in March, 1990.

During their marriage, and prior to their separation, Mr. and Mrs. Cavin owned and operated several businesses, primarily, a sporting goods store and restaurant called the Sportsman’s One Stop and another restaurant named the Missouri Pacific Restaurant. Mr. and Mrs. Cavin both worked in, and contributed to, these two businesses. The Missouri Pacific Restaurant went out of business in 1965, and the Sportsman’s One Stop apparently closed soon thereafter.

The Sportsman’s One Stop store was constructed on a lot Mr. Cavin received as a gift from his mother. Mrs. Cavin also received a lot, by way of a gift from her mother, on which their family home was built. Both buildings were constructed with marital funds. Mrs. Cavin received the proceeds of the sale of the house and lot when the parties separated in 1965. The sporting goods store burned in 1987, and Mr. Cavin received the insurance proceeds and retained the lot.

Mr. Cavin testified at the time the sporting goods store went out of business, he was in bad financial condition. He auctioned off some of the inventory and transferred the rest to a liquor store. He stated he borrowed $50,000 which enabled him to open new businesses. Mr. Ed Mercing, his accountant, testified as to Sportsman’s One Stop’s poor financial condition.

Mr. and Mrs. Cavin also owned valuable gun and coin collections, which Mr. Cavin retained upon their separation.

Mrs. Cavin filed two separate maintenance actions, one in 1965, and one in 1970. Both suits were dismissed as Mrs. Gavin’s attorneys advised her Mr. Cavin either had no assets or that none could be located.

Both parties are currently in poor health and Mrs. Cavin has accumulated a number of medical bills. Mr. Cavin resides in a retirement home and is confined to a wheelchair.

Answers to interrogatories indicate Mr. Cavin has CD’s and checking accounts totalling approximately $130,000, in addition to the lot he received from his mother, valued at $25,000, and the gun and coin collections. He receives a monthly pension from Missouri-Pacific Railroad in the amount of $120, along with social security benefits. Mrs. Cavin’s assets consist of CD’s and checking accounts totalling $27,000 and social security benefits.

During the course of trial, Mrs. Cavin testified that she was only interested in the money and the assets that were “ours before we separated.” Following trial, the chancellor determined that the gun and coin collections, and Mr. Cavin’s pension, were to be divided equally. (The parties agreed that in lieu of Mrs. Cavin’s interest in the pension benefits, Mr. Cavin would pay her $60 per month in alimony.) The chancellor further held that although the parties’ home and the Sportsman’s One Stop store were both built with marital funds, there had already been an equal division of those properties when the parties separated in 1965. Mrs. Cavin kept the home and sold it, retaining the proceeds, and Mr. Cavin retained the lot containing the Sportsman’s One Stop building, and later collected the insurance proceeds when the building burned.

As to the cash and certificates of deposit held separately by the parties, the chancellor determined that, although these assets constituted marital property, each party should retain the assets in his or her possession. The chancellor thus declined to divide the total remaining marital property equally. Section 9-12-315(a)(1)(A) provides that marital property is to be divided one half to each party “unless the court finds such a division to be inequitable.” One of the enumerated factors to be considered in making such a determination, and the one primarily relied upon by the chancellor, is the “contribution of each party in acquisition, preservation, or appreciation of marital property. . . .”

Mrs. Cavin contends the chancellor erred in failing to apply the required presumption that all property acquired by either spouse during the marriage, and prior to the decree of divorce, is marital property, and that the court erroneously assumed Mr. Cavin acquired all of his current assets after the separation in 1965, without requiring him to assume the burden of proof. Mrs. Cavin further contends that, regardless of who bears the burden of proof, the evidence does not support the chancellor’s findings. We disagree.

Unquestionably, our law is that assets acquired after separation, and prior to a grant of divorce, are marital property. Section 9-12-315(b); Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987); see Franklin v. Franklin, 25 Ark. App. 287, 758 S. W.2d 7 (1988). The chancellor recognized this in her findings, but concluded, however, after an examination of the facts before her and consideration of the factors under Section 9-12-315, that it would be unfair to divide the marital property, after 25 years of separation, equally.

In her findings of fact, the chancellor noted the testimony of Mrs. Cavin that she had twice filed actions for separate maintenance after the separation, but was informed by two different attorneys that Mr. Cavin had no assets. Mr. Ed .Mercing, Mr. Cavin’s accountant, testified that Sportsman’s One Stop never showed much profit and that there was generally very little income after 1965. The chancellor further found Mr. Cavin’s new businesses were started subsequent to the separation and that Mr. Cavin took out a $50,000 loan to pay off debts and to invest in the new ventures. Lastly, the chancellor found, and both Mr. and Mrs. Cavin testified, that neither party had contributed anything, whatsoever, to the other, during their 25-year separation.

We will affirm the chancellor’s findings of fact, unless clearly erroneous. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). We cannot say, from the evidence presented, that the findings recited above were clearly erroneous.

On these facts, the chancellor was then justified in dividing the marital property unequally, taking into consideration the parties’ ages, health, and the fact that, other than the parties’ coin and gun collections and Mr. Cavin’s pension, whatever assets presently possessed were accumulated over a 25-year period, without the support of contribution of the other. The latter consideration, another point Mrs. Cavin challenges, is clearly enumerated in Section 9-12-315(a)(1)(A)(viii) as “the contribution of each party in acquisition, preservation, or appreciation of marital property. . . .” Any exception to the rule of equal distribution will always depend upon the specific facts as reflected by the trial court’s findings and conclusions. Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984). The overriding purpose of Section 9-12-315, paramount to all other considerations, is to enable the courts to reach a decision that is equitable, and marital-property law vests in the trial court a marked measure of flexibility in apportioning a couple’s total assets. See Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). We find that the chancellor’s division of property reached an equitable result.

In her final point, Mrs. Cavin asserts the chancellor erred in failing to divide the proceeds of Mr. Cavin’s sale of an 1860 Derringer for $2,000, and his sale of two life insurance policies totalling approximately $6,500.

This issue was raised in Mrs. Cavin’s motion for reconsideration, following the chancellor’s ruling from the bench. After receiving the motion, the chancellor addressed a letter to both attorneys stating that since Mrs. Cavin’s attorney had filed a motion to reconsider, she would appreciate some additional documentation concerning the values of Mrs. Cavin’s formerly owned lot and home and Mr. Cavin’s property which housed the Sportsman’s One Stop.

Mrs. Cavin then moved to withdraw her motion for reconsideration, stating that since the value of the properties was not an issue in her motion for reconsideration, she was requesting a withdrawal of that motion. The chancellor granted the motion to withdraw.

As a result, Mrs. Cavin’s motion to withdraw the motion for reconsideration precluded the chancellor from considering any of the issues contained therein, including the argument she now raises. Likewise, we are precluded from examining this issue, as it was not preserved for appeal.

For the foregoing reasons, the decision of the chancellor is affirmed.

Brown, J., not participating.


author: Jack Holt, Jr., Chief Justice. David Newbern, Steele Hays, Justice,

text:
    Tony A. LEE v. Andre McNEIL, Chancellor and Probate Judge; David L. Reynolds, Circuit Judge; and M. Watson Villines, Circuit-Chancery Judge
    CR 91-153
    823 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Charles E, Clawson and Phil Stratton, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The petitioner, Tony Lee, has been charged with the criminal offense of fourth offense driving while intoxicated (Ark. Code Ann. §§ 5-65-103 and 111 (1987)). Lee is set to stand trial for this offense in Faulkner County Circuit Court. Lee has filed a petition for a writ of prohibition from this court to the Faulkner County Circuit Court requesting that this court prohibit his upcoming trial; Lee contends in his petition that the circuit court would not have jurisdiction over his criminal case because the judge who will preside over his case is the respondent chancellor, Andre McNeil, who would be sitting as circuit judge pursuant to an exchange agreement and docket division agreement within the twentieth judicial district.

Judge McNeil is the duly elected, authorized, and acting judge of the chancery and probate courts of the twentieth district. The respondent, David Reynolds, is the duly elected, authorized, and acting judge of the circuit court of the twentieth district, and the respondent, Watson Villines, is the duly elected, qualified, and acting judge of the circuit-chancery courts of the twentieth district.

After being sworn in on January 1, 1991, as judges of their respective courts, the three judges entered into an exchange agreement on February 5, 1991, by which the courts of the twentieth district were divided into three divisions. Lee asserts 1) that the judges of twentieth judicial district had no legislative authority to divide the district into divisions, and 2) that Judge McNeil and Judge Reynolds are usurping power of other courts within their district. We agree.

Arkansas Code Ann. § 16-13-201 (1987) addressed the jurisdiction of circuit courts and provides in pertinent part as follows:

(a) Circuit courts shall have original jurisdiction of all actions and proceedings for the enforcement of civil rights or redress of civil wrongs, except when exclusive jurisdiction is given to other courts. Where those actions and proceedings are not expressly provided for by statute, the actions and proceedings may be had and conducted by the circuit courts and judges, in accordance with the course, rules, and jurisdiction of the common law.
* * * *

Arkansas Code Ann. § 16-13-304 (Supp. 1989) addresses the jurisdiction of chancery courts and provides in pertinent part as follows:

(a) Chancery courts shall have original jurisdiction in all matters in equity as fully as that exercised by the circuit courts of this state in counties where no separate chancery courts have been established prior to April 27, 1903.
(b) Notwithstanding the provisions of the Arkansas Juvenile Code of 1989, or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity.

Arkansas Code Ann. § 16-13-2803 (Supp. 1989) addresses the judges and chancellors of the twentieth district and provides as follows:

(a) The qualified electors of the Twentieth District shall elect:
(1) One (1) circuit judge;
(2) One (1) chancellor; and
(3) One (1) circuit-chancery judge.
(b) (1) Each judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the chancery district.
(2) The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery or probate court as time permits.

In this case, the judges entered of record an exchange agreement, which ordered in part that there be set up within the twentieth judicial circuit three divisions of each of the following courts: 1) chancery court, 2) circuit court; and 3) juvenile court. Although the State argues that this agreement is authorized under Ark. Const. art. 7, §22 and Ark. Code Ann. § 16-14-403 (1987), we find otherwise.

Article 7, § 22 provides that “[t]he judges of the circuit courts may temporarily exchange circuits or hold court for each other under such regulations as may be prescribed by law.” Section 16-14-403 incorporates this constitutional provision and addresses the exchange of districts among judges and provides as follows:

(a) (1) Circuit judges and chancellors of their respective districts of this state may by agreement temporarily exchange districts and may hold courts for each other for such length of time as may seem practicable and for the best interest of their respective districts and courts.
(2) The agreements shall be signed by the judges so agreeing and entered on the record of the court or courts so to be held.
(b) It is the intent and purpose of this section:
(1) To permit circuit judges to exchange districts with each other,
(2) To permit chancellors to exchange districts with each other,
(3) To permit circuit judges to exchange districts with chancellors', and
(4) To permit chancellors to exchange districts with circuit judges.

(Emphasis added.)

The State’s argument fails to recognize that the statutory authorization for the exchange of districts among judges does not provide for the creation and exchange of divisions among circuit and chancery judges within a district. The exchange contemplated and authorized in section 16-14-403 is inter-district in nature, as compared to the intra-district exchange attempted by the judges in this case.

The judges of the twentieth district are, therefore, without legislative authority to alter, as among themselves, the duties and responsibilities they assumed upon their election to their respective positions. Cf. Ark. Code Ann. §§ 16-13-1503(b)(2) and 16-13-2603(a)(2)(B) (Supp. 1991) (“The circuit judges, chancery judges, and circuit-chancery judges of the districts subject to this subsection [seventh and eighteenth respectively] may, by agreement, hold either of the circuit or chancery courts in their respective districts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time. The judges subject to this subsection may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their district.”)

Arkansas Const, art. 7, § 4 addresses the jurisdiction and powers of the Arkansas Supreme Court and provides “[t]he Supreme Court. . . shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of . . . mandamus . . . .”

In Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976), this court noted that the writ of prohibition lies to a court, not a judge. Consequently, Lee’s petition for a writ of prohibition is inappropriate. However, in that case, the petitioner’s pleading was treated as a petition for mandamus in directing the judge in that case to refrain from a particular action. Mandamus is a remedy to be used on all occasions where the law has established no specific remedy and justice and good government require it; it is a writ that is used to enforce an established right. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

The right that Lee seeks to enforce is contained in section 16-13-2803, which created a right in the people to select by the election process separate persons to serve as circuit, chancery, and circuit-chancery judges for the twentieth district. The only practical method of enforcing this right is the remedy of mandamus. Quo warranto is not appropriate because it is the State that initiates that proceeding under these circumstances, not an individual such as in this case. State v. Craighead County Bd. of Election Comm’rs, supra (citing Ark. Code Ann. § 25-16-704 (1987)); Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987); and McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973)).

Consequently, we treat Lee’s petition for writ of prohibition as one of mandamus and direct the respondent judges to refrain from judicially enlarging their respective jurisdictions.

Accordingly, the petition for writ of prohibition is denied, and the writ of mandamus is granted.

Newbern, J., concurs.

Hays and Corbin, JJ., dissent.

David Newbern,

concurring. The result reached by the Court’s opinion is correct, and I join it without reservation. I cannot let the case go by, however, without expressing again my concern about the need for revision of Article 7 of the Constitution of Arkansas.

The original scheme of Article 7 was for the circuit courts to have general jurisdiction except in probate matters, and the circuit judges were to be the judges of the probate courts as well. Section 11 provides, “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” Section 15 provides, “Until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity. . . .” Prior to Amendment 24, Section 34 provided for probate jurisdiction in the county courts. Amendment 24 placed it with the court exercising equity jurisdiction. If chancery courts had not been created, the circuit judges would have had jurisdiction of all civil matters except the minor ones assigned to the lower courts and probate courts. The circuit judges would, however, have presided over the probate courts. Had the chancery courts not been created by the General Assembly, the judges of the Twentieth District would presumably all be circuit judges, able to preside as their exchange agreement proposes. Now that we have all these courts, there is no doubt that Article 7 contemplates them as being separate from each other.

Given the separation of the courts, operation of one judge in another’s bailiwick requires “exchange.” Section 22 makes it clear that the judges of the circuit courts may only exchange circuits “temporarily,” and yet the plan and agreement among the Twentieth District judges makes eminently good sense. No one could doubt the efficiency to be achieved. The fact that the General Assembly has already given one of the responsibilities as both a chancellor and circuit judge is indicative that the duties can be combined, at least to that extent.

The citizens of this State should be given an opportunity to revise Article 7. See Griffin v. State, 297 Ark. 208 at 217, 760 S.W.2d 852 at 857 (1988) (Newbern, J., dissenting). See also Arkansas State Medical Board v. Leipzig, 299 Ark. 71 at 74, 770 S.W.2d 661 at 663 (1989) (Newbern, J., dissenting); Malakul v. Altech Arkansas, Inc., 298 Ark. 246 at 253, 766 S.W.2d 433 at 437 (1989).

Steele Hays, Justice,

dissenting. The obvious and increasing need for the efficient operation of the judicial system and the wise use of judicial resources mitigate in favor of inventive measures like the one before us. Such devices should be sustained except where invalidity is clear. I respectfully suggest the majority opinion fails to demonstrate that invalidity.

To begin with, petitioner’s remedy, if he is dissatisfied with the outcome of his trial, is by appeal rather than by mandamus, and I would not undermine our precedents, and there are many, that “mandamus will not be granted when there is a remedy by appeal.” Burks v. Mobley, 245 Ark. 43, 430 S.W.2d 859 (1968); Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Second, the majority rests its decision on the argument that, unlike an exchange of districts, which is authorized by Ark. Code Ann. § 16-13-403 (1987), there is no similar authorization for an exchange of divisions within a district. However, the majority has cited no supporting authority for its position that an “intradivision” exchange agreement requires legislative sanction.

Contrary to the majority’s contention, an express legislative conferrence of power is not required for the judges to execute this agreement. Rather, the agreement is authorized and enabled because it is already encompassed within the “inherent powers” of a court, which powers we have long recognized:

Besides the powers. . . specially granted by the constitution to the circuit courts, they possess certain other powers, which appertain to all judicial tribunals, and vest in them of necessity upon their creation, and by the simple act creating them. . . .

Anthony, Ex Parte, 5 Ark. 358 (1843). Similarly it is stated in State v. Morrill, 16 Ark. 384, quoting from United States v. Hudson, 7 Cranch 32 (1805).

Certain implied powers must necessarily result to our courts of justice from the nature of their institution. To find for contempt, imprison for contumacy, enforce the observance of order, etc., are powers that cannot be dispensed within a court because they are necessary to the exercise of all others; and so far our courts no doubt possess powers not immediately derived from statutes. . . .
The legislature may regulate the exercise of but cannot abridge the express or necessarily implied powers granted to this court by the Constitution. [My emphasis.]

A court’s inherent powers are universally recognized:

The phrase ‘‘inherent powers” is used to refer to powers included within the scope of a court’s jurisdiction which a court possesses irrespective of specific grant by constitution or legislation. Such powers can neither be taken away nor abridged by the legislature. . . . The inherent powers of a court do not increase its jurisdiction; they are limited to such powers as are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction. . . . Courts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction. [My emphasis.]

20 Am. Jur. 2d, Courts § 78, 79 (1965).

Recently, in discussing an enabling act passed by the legislature this court adverted to a court’s inherent powers:

[The enabling act] merely recognizes and is harmonious with this court’s inherent powers rather than conferring an express power.

Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977); Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

As to the specific power exercised by the respondents, other jurisdictions have recognized the implied authority in coordinate judges of a jurisdictional territory to exchange with coordinate courts of the same territory. See State ex re. MacNish v. Landwehr, 60 S.W.2d 4 (1933); Kruckenberg v. Powell, 442 So. 2d 994 (1982). It is stated in Kruckenberg:

The assignment and reassignment of specific court cases between or among the judges of a multi-judge court is a matter within the internal government of that court and is directed and controlled by policy adopted by the judges of that court. . . . Every duly elected or appointed judge or a court has the bare power or authority to exercise all of the jurisdiction of that court.

The only limitation on the court’s exercise of its powers is that any rule be “reasonable” and neither enlarge nor restrict the jurisdiction of a court. Any rules must of course “harmonize with and cannot render nugatory, or materially modify, statutory provision, and must not conflict with constitutional provisions.” 20 Am. Jur. 2d, Courts § 84 (1965); see also Thomas v. Arn, 474 U.S. 145 (1985). No such conflict has been noted by the majority.

The majority opinion avoids topical discussion, but the implication exists that this device for an improved judicial operation is perceived by the majority as flawed because of the distinction between courts of law and equity inherent in the common law and retained anachronistically in Arkansas., But that aspect was addressed soundly and in depth by Justice Frank G. Smith in McEachin v. Martin, 193 Ark. 787, 102 S.W. 864 (1937). In McEachin, Judge Irby, Chancellor of the 8th Chancery District, under an agreement for exchange of courts with Judge Holt, circuit judge of the Boone Circuit Court, presided over a personal injury case. I quote, necessarily at some length, from that opinion:

Act 160 of the Acts of 1933, page 490, expressly authorizes circuit judges and chancellors of the state to temporarily exchange courts and districts by agreement, for such length of time as may be practicable and for the best interest of their respective circuits and districts and courts. The act declared the intent and purpose thereof to be “*** to permit circuit judges to exchange circuits with each other; to permit chancellors to exchange districts with each other; and to permit circuit judges to exchange circuits with chancellors; and to permit chancellors to exchange districts and circuits with circuit judges.” Authority for the exchange between Judge Holt and Chancellor Irby appears ample if act 160, supra, is valid legislation. Is it such?
***
It was provided by § 22 of art. 7 of the Constitution that “The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.” We think it obvious that the words “circuit courts” were used in a comprehensive sense, including within their meaning chancery courts as well. Throughout the judicial history of the state no one ever questioned the right of one circuit judge who had exchanged circuits with another judge to exercise the full jurisdiction possessed by the judge with whom the exchange was made. For the purpose and during the time covered by the exchange agreement each judge possessed all the powers and jurisdiction of the judge with whom he had exchanged. He was both circuit judge and chancellor, because chancery courts were comprehended and included in the words “circuit courts.” That § 22, above quoted, refers alike to courts having chancery jurisdiction as well as to circuit courts or, rather, intended both courts to be comprehended by the words “circuit courts,” in § 21 of art. 7. This section provides that “Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance of said court may, on the second day of the term, elect a judge to preside at such court.” If the words “circuit courts” did not comprehend and include chancery courts as well, then no authority existed for the election of a presiding judge possessing chancery jurisdiction.
***
Chancellors have, under the Constitution, the same right to exchange which circuit judges have, and there is no limitation of this power restricting the right of a circuit judge to exchange only with another circuit judge or a chancellor to exchange only with another chancellor. It is, therefore, the opinion of the writer, and of Justices Humphreys, McHaney and Baker, that chancellors may exchange with circuit judges as well as with other chancellors.

Furthermore, legislative intent favoring exchange is expressed more than once, with regard to statutes on the exchange of districts. See e.g. Act 1961, No. 135, Preamble. Construction of constitutions and statutes providing forjudges of one district to hold court in another district, is generally considered remedial and should be liberally construed with a view to promoting the ends of justice. 48A C.J.S. Judges, § 73 (1981).

Corbin, J., joins.


author: Robert H. Dudley, Justice.

text:
    James C. PLEDGER, Dir. Dept. of Finance and Administration, State of Arkansas, and Jimmy Lou Fisher, Treasurer of the State of Arkansas v. FEATHERLITE PRECAST CORP., on Behalf of Itself and all Other Similarly Situated Taxpayers
    91-91
    823 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992
    [Rehearing denied March 9, 1992.]

      Malcolm P. Bobo, Revenue Legal Counsel; and Winston Bryant, Att’y Gen., by: Mary Stallcup, Asst. Att’y Gen., for appellants.

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellee.

      Brown, J., not participating.

   Robert H. Dudley, Justice.

Appellee Featherlite, a corporate taxpayer, and members of the class of taxpayers it attempts to represent, are producers of precast concrete components used in the construction of concrete structures such as bridges and parking decks. The components produced by taxpayer Feather-lite are made at its out-of-state plant according to the specifications of its customer. The components are then transported to the jobsite in Arkansas and assembled into a structure.

From May 1,1981, through December 31,1986, the period of the use tax audit, the taxpayer was at times a producer-vendor of the component parts, and at other times also subcontracted to assemble the structure. Depending upon its capacity, the taxpayer reported Arkansas use tax on either its vendor use tax permit or its consumer use tax permit. Regardless of which permit it used to report the tax, it calculated the tax due based upon the cost of raw materials used in making the components instead of the sales price of the components. In addition, it neither collected nor remitted tax on the delivery charges included on the bills to its customers for the concrete components.

After the tax audit was completed, the Revenue Division of the Department of Finance and Administration made a proposed use tax assessment and, in doing so, calculated the use tax based upon the sales price of the concrete components, giving credit for the use tax already reported on the cost of the raw materials. The proposed assessment also included use tax on the delivery charges billed to the customers on the taxpayer’s invoices. The taxpayer protested the proposed assessment and requested an administrative hearing. There the taxpayer contended that requiring producers of precast components to pay tax based upon the sales price of the components, rather than the cost of the raw materials used, placed precasters at a competitive disadvantage, since a general contractor that built the same type of structure would do so by pouring the concrete in place, without using precast components, but would be required to pay tax only on the cost of the raw materials used. The Administrative Law Judge held that precast concrete components are items of tangible personal property, and the correct basis for the tax is the sales price of the component, not the cost of the raw materials used in producing it, and sustained the assessment. The taxpayer paid the assessment under protest and filed its appeal in the Chancery Court of Pulaski County, asserting that the revenue division’s interpretation of the use tax statutes constituted an illegal exaction. It sought a refund of the $195,844.41 which it had paid under protest; sought an accounting of all taxpayers who might have been similarly taxed; sought refunds for all similarly situated taxpayers who, after the date of filing of this suit, might have been, or would be, taxed in the same manner as this taxpayer; sought to have declared illegal the Revenue Division’s interpretation of the use tax statutes and to enjoin the Revenue Division from so interpreting these statutes; and sought an attorney fee from the resulting common fund.

The Director and Treasurer answered and the parties entered into a stipulation of facts. The Chancellor certified the case as an illegal exaction class action. The parties submitted briefs on cross-motions for summary judgment. On December 20, 1990, the Chancellor wrote a two sentence letter to the parties stating that he found the taxpayer’s argument more convincing. On December 31, 1990, the Chancellor’s last day in office, he signed a detailed thirty-six page order which found for the taxpayer on every count. The attorneys for the Director and the Treasurer were apparently not given the opportunity to approve or disapprove the form of the precedent. We reverse on both the merits and on the procedure.

The appellant Director and Treasurer first argue that the Chancellor erred in holding that he had jurisdiction of this case under Article 16, Section 13, the illegal exaction provision, of the Constitution of the State of Arkansas.

The illegal exaction provision and the cases interpreting it encompass two (2) different types or kinds of exactions. One type involves the prevention of a misapplication of public funds or the recovery of funds wrongly paid to a public official. See, e.g., Brewer v. Hawkins, 242 Ark. 460, 408 S.W.2d 492 (1966). We have given this type of exaction an expansive interpretation because taxpayers are the equitable owners of all funds collected by a government and, in most of the cases, are liable to replenish the funds exhausted by a misapplication or wrongful payment. Under these conditions taxpayers are entitled to broad relief. See, e.g., Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944). For convenience, we label this type of case a “public funds” exaction case.

The case now before us involves a wholly different type of exaction. It does not involve the “public fund” doctrine, and therefore, the same reasoning is not applicable to it. This exaction case involves a taxpayer who seeks to enjoin a government from taxing him. In this second kind of exaction case, which, for convenience, we label an “illegal tax” exaction case, the exaction itself must be alleged to be illegal before the chancery court has jurisdiction under the constitutional provision. It is true that we have many cases in which the collection of taxes has been enjoined under the illegal exaction provision, but all involve a tax that was itself illegal. See for example Greedup v. Franklin County, 30 Ark. 101 (1875), an attempt to collect a county levy in excess of the five mills allowed by the constitution; Lyman v. Howe, 64 Ark. 436, 42 S.W. 830 (1897), a tax based upon an assessment not made by the assessor; Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986) and Merwin v. Fussell, 93 Ark. 336, 124 S.W. 1021 (1910), attempts to collect taxes not properly voted by the people; McDaniel v. Texarkana Cooperage & Mfg. Co., 94 Ark. 235, 126 S.W. 727 (1910), a tax levied by a county having no jurisdiction over the property; City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982) and Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412 (1882), taxes which were not authorized by the city’s delegated power of taxation. However, we have always held that if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). In Taber v. Pledger, 302 Ark. 484, 489, 791 S.W.2d 361, 364 (1990), we wrote that “a suit to declare a tax statute unconstitutional, and therefore void” comes within the illegal exaction provision, while a suit “to determine whether the taxpayer’s transactions fall within an exemption created by statute” does not come within the section. More important, and precisely on point in this case, we have held that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. Schuman v. Ouachita, supra (citing Missouri Pacific Ry. Co. v. Fish, 181 Ark. 863, 28 S.W.2d 333 (1930) and Beard v. Wilcockson, 184 Ark. 349, 42 S.W.2d 557 (1931)). Here, the taxpayer does not contend that the use tax is itself illegal, but rather contends that the assessment of its individual tax, and that of others similarly situated, is carried out in an unconstitutional and illegal manner. Consequently, this suit does not come within the illegal exaction provision of the Constitution of Arkansas, and the Chancellor erred in certifying it as a class action coming within that provision.

Since the taxpayer has not pleaded a case that comes within the illegal exaction provision, it is relegated to statutory relief. Ark. Code Ann. § 26-18-406 (1987) provides that relief for a taxpayer is precluded unless the taxpayer has paid the tax under protest, or else posted bond, within thirty (30) days of the issuance of the notice and demand for payment of the assessment. No members of the alleged class, other than appellee Featherlite, timely tendered taxes under protest and, consequently, the attempt to bring all of the other precaster taxpayers into this suit is fatally defective.

The Chancellor additionally ruled that the Revenue Division’s policy in interpreting the gross receipts (sales) tax and compensating (use) tax laws was contrary to the intent of the General Assembly. The Director and the Treasurer correctly assign this ruling as error. The Revenue Division assessed the taxes on the “sale” of “tangible personal property.” Such an interpretation conforms with the plain meaning of the applicable statutes.

The applicable statutes are as follows:

Ark. Code Ann. § 26-52-301 (1987), in pertinent part, provides:

There is levied an excise tax of three percent (3 %) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
(1) Tangible personal property, . . . [Emphasis added.]

Ark. Code Ann. § 26-52-103 (1987), in pertinent part, provides:

(a) The following words and phrases, except where the context clearly indicates a different meaning when used in this act, shall have the following meanings:
(3)(A) “Sale” is declared to mean the transfer of either the title or possession . . . for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished. [Emphasis added.]
(4) “Gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property . . . without any deduction on account of the cost of the properties sold, labor service performed, interest paid, losses, or any expenses whatsoever.
(7) “Seller” means every person making a sale in an established business as defined in this section;
(9) “Consumer” or “user” means the person to whom the taxable sale is made or to whom taxable services are furnished. All contractors are deemed to be consumers or users of all tangible personal property including materials, supplies, and equipment used or consumed by them in performing any contract, and the sales of all such property to contractors are taxable sale within the meaning of this act.

Ark. Code Ann. § 26-52-307(1987) provides:

Sales of service and tangible personal property including materials, supplies, and equipment made to contractors who use them in the performance of any contracts are declared to be sales to consumers or users and not sales for resale.

Ark. Code Ann. § 26-53-106(a) (1987) provides:

There is levied and there shall be collected from every person in this state a tax or excise for the privilege of storing, using, or consuming within this state any article of tangible personal property purchased for storage, use, or consumption in this state at the rate of three (3 %) percent of the sales price of the property. [Emphasis added.]

Ark. Code Ann. § 26-53-102 (1987) in part provides:

As used in this subchapter, unless the context otherwise requires:

(1) “Sales price” means the consideration paid, or given ... to the vendor for the article of the tangible personal property . . . without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service cost, ... or any other expenses whatsoever ....
(4) “Vendor” means and includes every person engaged in making sales of tangible personal property. . . .
(11) “Tangible personal property” means personal property which may be seen, weighed, measured, felt, touched, or is in any other manner perceptible to the senses. [Emphasis added.]

Ark. Code Ann. § 26-53-201 (1987) provides:

As used in this subchapter, unless the contexts otherwise requires, “contractors” are consumers of all tangible personal property used or consumed in the performance of a contract in this state and of all tangible personal property stored for use or upon which the contractor may exercise any right or power in this state.

Ark. Code Ann. § 26-53-203(a)(l) (1987) provides:

All tangible personal property which is procured from without this state for use, storage, or consumption including machinery, equipment, repair or replacement parts, materials, and supplies used, stored, or consumed by a contractor in the performance of a contract in this state shall be subject to the compensating tax of three percent (3 %) of the purchase price as provided by the Arkansas Compensating Tax Act, § 26-53-101 et seq.....

The Revenue Division’s interpretation is in conformity with the plain meaning of the foregoing statutes. The Revenue Division calculated the sales and use tax due on the sale of precast concrete components based upon the “sale price” charged the general contractor. The precast concrete components are large specially designed and constructed pieces of concrete and are “tangible personal property.” The pieces can be seen and touched; they are tangible. They are not real property at the time they are transported to the jobsite; rather they are still personal property. Thus, the Revenue Division has interpreted the statutes just as they read, giving the words their ordinary and usually accepted meaning.

Appellee Featherlite admits that the Revenue Division’s interpretation is literally correct, but urges us to hold that the General Assembly intends for the Division to use a more “flexible” interpretation. The taxpayer then supplies us with five possible more “flexible” interpretations, but we need not consider other “flexible” interpretations because the statutes are not ambiguous and the Revenue Division’s interpretation of them is in accordance with their plain and accepted meaning.

Appellee Featherlite contends that the Revenue Division’s interpretation is unfair because it gives a general contractor, or the specialty subcontractors who pour “in place,” an unfair advantage over precasters. There are two short answers to the argument. First, there is a real distinction between the off-site precasting process and the on-site pouring of concrete into forms. The on-site pouring method of construction is much slower than the precast method, since on-site contractors or specialty subcontactors must wait for the cement to cure in each form before going to the next forms; for example, to build the next floor. Using the on-site method, a contractor might take months to complete the entire structure, but with the use of the precast method it might take only weeks. Also, precasting allows the concrete to be prestressed making it stronger than concrete poured on site. The precast process results in a superior product which the general contractor often chooses to purchase.. The product that is sold to the general contractor is “tangible personal property.” On the other hand, the general contractor’s product is a building or a bridge that is so affixed to the land that it becomes real estate. Second, even if there were no distinction other than the “sale” of “tangible personal property” to the general contractor, it does not mean that the Revenue Division is incorrectly interpreting the applicable statutes. The applicable statutes themselves make the distinction.

The Chancellor also found that the Revenue Division’s interpretation of the sales and use tax statutes violates the Commerce Clause of the Constitution of the United States. This finding is also assigned as error, and once again, we hold the assignment is meritorious. “[E]qual treatment for in-state ahd out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.” Halliburton Oil Well Co. v. Reily, 373 U.S. 64, 70 (1963). The sales and use taxes at issue are not imposed in a way that creates an inequity between in-state and out-of-state taxpayers. The residence of the precast company has no bearing upon the amount of taxes it pays. The Revenue Division imposes both the sales and use taxes upon the price of the concrete components regardless of whether they are precast within or without the state. Thus, there is equal treatment for similarly situated in-state and out-of-state taxpayers in the imposition of the taxes and, as a result, there is no violation of the commerce clause. It was error for the Chancellor to hold otherwise.

In order to sustain the ruling of the Chancellor, appellee Featherlite contends that the taxes are imposed in a way that creates an inequity between subcontractors and general contractors. As previously set out, there are material differences between subcontractors that sell tangible personal property and general contractors that purchase that personal property. However, appellee Featherlite argues that when it serves as the subcontractor in assembling a structure, it is treated differently than a general contractor because Featherlite must remit tax on the sales price of tangible personal property, while the general contractor must pay tax only on the cost of the raw materials which go into the structure. The argument ignores the fact that when appellee Featherlite has produced tangible components and shipped them to the site, and then acts as a subcontractor in assembling a structure, it is assembling pieces of “tangible personal property.” Quite differently, the general contractor that does not purchase precast products would be pouring concrete into forms on site and therefore would be using only raw materials in its construction work.

The general contractors bid against each other to construct a finished structure ready for occupancy. The amount of a general contractor’s bid is determined by the anticipated cost of the job. In order to anticipate the cost, the general contractor must weigh the cost of precast components against the cost of pouring concrete in place. It is only after this decision is made that the precaster enters the building process. If a general contractor has decided to use precast components it will seek bids from precasters. The precasters will then bid against each other to supply the precast concrete components to the winning general contractor. Even when the precaster subcontracts to assemble the components, the general contractor must finish the structure. Thus, the precasters are not in competition with the general contractors and the taxes are not imposed in such a manner as to give the general contractors an unfair advantage over the precasters.

Appellee Featherlite acts in two distinct capacities. In one capacity it is a producer-vendor, and in the other, it is a producer-subcontractor. The case of Republic Steel Corp. v. McCastlain, Comm’r, 240 Ark. 979, 403 S.W.2d 90 (1966) sets out the basis for taxation in each capacity. In that case, Republic was an out-of-state manufacturer of steel reinforcing bars used in the construction of military missile launching concrete silos. Republic contracted with an Arkansas general contractor to provide and install steel bars. Republic reported the use tax due based upon the cost of the raw materials used to make the steel bars, rather than the sales price of the bars, and the Revenue Division made a deficiency assessment based upon the difference between the raw material costs and the sales price, just as it did in the case at bar. Republic contested the tax. On appeal, we held that Republic acted in two separate capacities; one, as a manufacturer making the steel bars and, two, as a subcontractor installing them, and that as a manufacturer, it transferred title to the steel bars to itself in its capacity of a subcontractor. Id. at 981, 403 S.W.2d at 92. Based upon this rationale, we held that a sale to the subcontractor had occurred and that the sales price of completed steel bars, rather than the cost of the materials used to make them, was the correct basis to use in calculating the tax due. Appellee Featherlite is being taxed in exactly the same manner in this case.

The Chancellor additionally found that the Revenue Division’s application of the sales and use taxes violated the Equal Protection Clauses of the Constitutions of the United States and the State of Arkansas. Again, we hold that the Chancellor erred.

In Larey, Comm’r v. Continental Southern Lines, Inc., 243 Ark. 278, 283, 419 S.W.2d 610, 614-15 (1967), we wrote:

To afford equal protection of the laws, required by Amendment Fourteen to the United States Constitution, such classification must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Equality for the purposes of competition and the flow of commerce is measured in dollars and cents and not in legal abstractions. [Citations omitted.]

“In deciding whether an equal protection challenge is warranted, there must first be a determination that there is a state action which differentiates among individuals.” Bosworth v. Pledger, 305 Ark. 598, 604, 810 S.W.2d 918, 920 (1991). Once equal protection is invoked, the rational basis test must be applied to determine whether there exists any rational basis for the classification. Bosworth v. Pledger, supra. The rational basis test is generally applied to the review of tax legislation. Streight v. Ragland, Comm'r, 280 Ark. 206, 212, 655 S.W.2d 459, 462 (1983). The task of the court is “to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose.” Id. at 215, 655 S.W.2d at 464.

As previously set out, there is a rational basis for the Revenue Division to tax general contractor consumers differently than vendors and subcontractors. The concrete components sold by appellee Featherlite come within the statutory definition of “tangible personal property” which is “personal property which may be seen, weighed, measured, felt, touched, or is in any other manner perceptible to the senses.” Ark. Code Ann. § 26-53-102(11) (1987). Thus, the Revenue Division’s interpretation that the concrete components are subject to taxation is valid.

On the other hand, the Revenue Division treats contractors as purchasers or consumers and requires them to pay tax on the sales price of items they purchase. The applicable statute provides:

All contractors are deemed to be consumers or users of all tangible personal property including materials, supplies, and equipment used or consumed by them in performing any contract, and the sales of all such property to contractors are taxable sales within the meaning of this act. . . .

Ark. Code Ann. § 26-52-103(9) (1987).

If a general contractor purchases a precast concrete component, the tax due is based upon the price of that component. However, if a general contractor purchases the raw materials and produces the component from those raw materials, it is taxed only on the price paid for the raw materials.

Thus, the Revenue Division’s classification is based upon a distinction between vendors and consumers. Vendors such as appellee Featherlite are required to remit taxes based upon the sales price of the finished product at the time of the sale, while consumers, such as general contractors, are required to pay the tax based upon the price of the item purchased at the time of purchase. The distinction is not arbitrary and does not impermissibly distinguish between equal citizens.

The Chancellor also held that delivery charges that were included in appellee Featherlite’s bill to the general contractor were not subject to sales or use tax. That ruling is also in error.

As previously set out, appellee Featherlite produces and sells the precast concrete components, sometimes as a producer-vendor and sometimes as a subcontractor.'Appellee billed the general contractor for the components, the erection charges, and the delivery charges. The Revenue Division assessed a tax deficiency based on all of the above charges, including the delivery charges. Appellee argued below, and the Chancellor held, that since appellee contracted with an independent carrier to deliver the components, and then separately set out the delivery charges, it should not be obligated to collect the tax on the charges. That ruling is in direct conflict with our holding in Belvedere Sand & Gravel Co. v. Heath, 259 Ark. 767, 536 S.W.2d 312 (1976). The Revenue Division is not attempting to collect a tax on hauling services as such, but is collecting a tax on the total consideration received by the vendor for the sale of tangible personal property, and that included delivery.

Reversed and remanded for entry of a decree consistent with this opinion.

Brown, J., not participating.