author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Harold Eugene ROGERS v. STATE of Arkansas
    CR 74-59
    515 S.W. 2d 79
    Opinion delivered October 21, 1974
    [Rehearing denied November 18, 1974.]

      George Howard Jr., Sharon Bernard Miller and Nathaniel R. Jones, James I. Meyerson, George E. Hairston (NAACP), New York City, with assistance from Mrs. Pat Tobin, law intern, NAACP, Cornell University, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of first degree rape (Ark. Stat. Ann. § 41-3401 [Supp. 1973]) and assessed his punishment at life imprisonment in the State Department of Correction. For reversal of that judgment appellant first contends that the trial court erred in not allowing sufficient voir dire examination by his defense counsel to permit an intelligent exercise of his right to make an informed decision whether to challenge the veniremen peremptorily or for cause.

The purpose of voir dire examination is to provide the litigants sufficient information about the proposed juror to intelligently exercise their challenges peremptorily or for cause. Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965). The due process clause of the federal Fourteenth Amendment requires that counsel be permitted to interrogate the prospective jurors about racial bias. Ham v. South Carolina, 409 U.S. 524, (1973). In Cochran v. State, 256 Ark. 99, 505 S.W. 2d 520 (1974), two defendants were convicted of assaulting a white officer during an assemblage or riot. The court generally inquired of the jurors as a group whether the difference in race would tend to influence their verdict. Their silent response was accepted by the court as indicating the racial difference would not influence their verdict. The defense counsel was not permitted to inquire into possible racial prejudice. There we held the trial court abused its discretion by unduly restricting the voir dire.

In the case at bar the appellant is a black man and the rape victim is a white woman. In two instances appellant asserts specifically that his voir dire was unduly restricted. The first example relates to the examination of prospective juror Siebenmorgan. The appellant's defense counsel, without objection or interruption by the court, was permitted to propound questions bearing directly on the issues of his mental attitude toward any racial bias. Siebenmorgan responded that he did not “have any racial prejudice;” he would not “believe a white police officer any more than [he] would believe a black man”; he would not “believe a white woman any more than [he] would believe a black man;” he did not “think there’s any difference between black people and white people;” his children attended “public schools” which are “integrated;” he is a Catholic and there are “black members” in his church; he had never had an unfortunate experience with a black man and neither had his family; and he had never had any problem with “interracial social gatherings.” Then the question was propounded “would you have any problem with your daughter dating a black man?” The court then remarked that he did not think this type of questioning “has anything to do with this law suit.” However, he then permitted the question to be answered. The juror responded that it would present a problem. However, the prospective juror then assured defendant’s counsel that the problem “would have no bearing on this case.” When the counsel persisted in this type of questioning, the court stated “[N]ow, I think we’ve gone into that far enough. You’ve asked him enough. As I explained at barside here, I think I’ve allowed counsel great latitude ****.”

The other example asserted as being too restrictive of voir dire examination relates to prospective juror Bartley. Appellant’s counsel was permitted to question him with reference to racial prejudice. In answer to these questions this prospective juror stated that he didn’t “have any racial prejudice;” there is no “difference between a black and white person” except “color;” he did not believe black people are “lazier” or “less intelligent” than white people; he did believe black people were “better athletes” than white people. Thereupon the trial court interrupted and said it was not necessary to answer that question since it was not proper voir dire.

As previously indicated, appellant contends that his counsel should have had the right to further pursue the interrogation of these witnesses in order to make an informed decision as to whether to challenge these jurors peremptorily or for cause. In other words, his counsel'was not permitted to show “subtle prejudices” or “subjective racism” which these two jurors might have. It is well established that the trial court is accorded a wide discretion in determining the extent or scope of the interrogation of prospective jurors. Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422 (¡961). There the defendant was being tried for dynamiting a building during a racial school crisis. After extensive questioning of the jurors by defense counsel as to their racial views, the trial court refused to permit the question “arc you a segregationist or an integrationist” to be propounded to the jurors. There we said that such a question “would have no bearing on his fairness as a juror to sit in the trial of a case being tried for dynamiting a building” and “would-inject an issue not pertinent to testing the capacity and competency of the jurors and would have tended to create a bias or prejudice that would also have embarrassed the veniremen.”

In the case at bar, the transcript reveals that the voir dire consisted of approximately 473 pages and the court permitted most of this to be conducted by the defense counsel. In our view the trial court accorded the defense counsel great latitude in questioning the prospective jurors in a searching inquiry as to the existence of any subtle or subjective bias that would prevent a juror from rendering a fair and impartial verdict. The appellant has not demonstrated that he was denied any fundamental fairness in interrogating the jurors in order to make an informed decision whether to challenge the veniremen peremptorily or for cause. The trial court did not abuse its discretion.

Appellant also asserts that it was error since the trial court failed to interrogate the prospective jurors about their racial attitudes, citing Ham v. South Carolina, supra. We do not consider this case applicable in the case at bar inasmuch as the statutory framework in that state provides for the voir dire examination of potential jurors be conducted by the court after accepting questions from the attorneys. That does not exist in our state. Griffin v. State, supra. Furthermore, the appellant has not demonstrated that the trial court was ever asked to conduct the voir dire examination. Therefore, the issue is raised for the first time on appeal and cannot be considered. Appellant’s defense counsel, as previously indicated, was permitted to question extensively the prospective jurors with reference to any possible racial bias.

Appellant next asserts that the “trial court erred in denying defense counsel’s motion for a mistrial based on the state’s exercise of its peremptory challenges to systematically exclude black persons from the jury in violation of the appellant’s Fourteenth Amendment rights.” Six of the seven prospective jurors which were peremptory challenged by the state were black. This resulted in an all white jury. In Swain v. State of Alabama, 380 U.S. 202 (1965), a black man was convicted of raping a white woman and sentenced to death. All six prospective black jurors were struck by the prosecutor by peremptory challenges. In affirming the conviction the court held that this procedure did not constitute a violation of the Fourteenth Amendment, “ ... we cannot hold the striking of negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.” “ . . . . [We] cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.” In Jackson v. States, 245 Ark. 331, 432 S.W. 2d 876 (1968), we followed Swain and stated the rule to be “[T]he mere fact that the state peremptorily challenged all the Negroes on the petit jury does not constitute a showing that any of appellant’s constitutional rights were violated.”

It appears that the prosecutor categorically denied that he was using his peremptory challenges merely to exclude blacks. The voir dire examination of the prospective black jurors peremptorily challenged by the state revealed that all of them except one were acquainted with either the appellant or members of his family. It appears that the other juror was reluctant to serve. The record reflects that blacks have consistently served as trial jurors. In Swain, supra, Justice White, writing for the majority, said:

Although historically the incidence of the prosecutor’s challenges has differed from that of the accused, the view in this country has been that the system should guarantee ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.’ Hates v. Missouri, 120 U.S. 68 (1887).

See also Green v. States, 222 Ark. 222, 258 S.W. 2d 56 (1953). In the case at bar we hold appellant has not demonstrated any systematic misuse by the state of its right to exercise its peremptory challenges.

Two prospective black jurors arrived late for the em-panelment and they were not included in the drawing for the initial 24 jurors. Upon arrival their names were included “in the box.” However, the initial empanelment was not redrawn as requested by appellant. Furthermore, appellant complains that two black jurors did not report for jury duty because they were out of town or could not be contacted. There is no evidence whatsoever that the tardiness of the two jurors or the absence of others was due to any act on the part of any official of the state. Such a factual situation does not constitute a systematic exclusion from the jury. Apodaca v. Oregon, 406 U.S. 404 (1972).

Appellant next argues that there was an unwarranted reprimand to his defense counsel at a crucial point in the trial and that the court failed to maintain an impartial hearing, generally, throughout the proceedings. The following occurred on cross-examination of the prosecutrix:

Q. You remember who pulled it out? [tampax]
A. I pulled it out. I told him I was on my period, and I pulled it out. I didn’t want him to push it up any farther inside me.
Q. When did he do his talking about Kansas City?
A. After he got through. After he reached his climax he set up and made me sit in his lap naked.
Q. How long did this take from the time that he put it in until—
A. Just a very short time.
Q. What were you doing?
A. I wasn’t doing anything, I was just laying there.
Q. Where were your hands?
A. I don’t know.
Q. Scratching?
A. No, I don’t know.
Q. Biting?
A. No.
Q. Kicking?
A. No.
Q. Kissing?
A. No.
Q. Petting?
A. No.
Q. Did you scream out?
A. No.
Q. Why did you not cry?
A. I’m just not that way. When I’m scared I just don’t say anything.
Q. Are you scared now?
A. Yes.
Q. Is it hard for you to cry now?
A. No.
Q. While you were sitting in his lap where were your hands?
A. Around his neck.
MRS. MILLER: Your Honor, maybe the prosecutrix would like a few minutes.
THE COURT: I beg your pardon?
MRS. MILLER: Maybe the prosecutrix would like a few minutes to get herself together.
THE COURT: Well, you got her this way. Why don’t you go ahead.
Mr. Myerson: Your Honor, the defense would like to point out that we’re not intentionally attempting to get her this way, and we would like for her to have an opportunity to get herself together.
THE COURT: I didn’t know she appeared to be so distraught. Do you wish to recess?
A. No.
THE COURT: I beg your pardon?

The prosecutrix then said “I can finish.” Thereupon the appellant’s counsel moved for a mistrial on the basis of the court’s remark before the jury that the “defense counsel having got this witness that way” is “highly prejudicial” which could not be removed from the juror’s minds by a cautionary instruction. The court denied the motion. Appellant argues that the court’s remark ridiculed the defense counsel and demonstrated a biased attitude which tended to adversely affect the appellant’s rights before the jury. Prejudicial error is not committed by the court’s remark unless it constitutes an “unmerited rebuke” giving the jury the impression that defense counsel is being ridiculed. Davis v. State, 242 Ark. 43, 411 S.W. 2d 531 (1967); McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924). However, prejudice is not shown where the record reveals that the trial judge was merely irritated at defense counsel’s trial tactics. Walker v. Bishop, 408 F. 2d 1378 (8th Cir. 1969). Although the better practice, as we have often said, is to talk to counsel out of the jury’s hearing, we do not construe this remark as ridiculing the appellant’s counsel. The court merely was stating the obvious. By terse questioning on cross-examination, the defense counsel was properly attempting to weaken the prosecutrix’s testimony as a witness. The court’s remark certainly did not relate to the merits of the case. At most, it could only be construed as a mere irritation which “does not constitute reversible error whether the court’s irritation was justified or not.” Walker v. Bishop, supra.

Further, where evidence of the defendant’s guilt is convincing, we have affirmed convictions in spite of the fact that remarks made by the trial court were said to be improper. Bates v. State, 210 Ark. 1014, 198 S.W. 2d 850 (1947); Tuttle v. State, 83 Ark. 379, 104 S.W. 135 (1907); and 62 ALR 2d 206. In Tuttle the court stated to appellant’s counsel “ [T]hat is not the rule of evidence, and not the law, and never was the law, and you know it. *** This is not a backwoods justice-of-the peace court, and I will not take up the time of the court with such questions.” In the case at bar the evidence, which we later discuss, is amply sufficient to convince us that the verdict is responsive to the evidence and not to any extraneous matter such as the asserted prejudicial remark by the trial court. Moreover the court instructed the jury pertinent to this issue:

I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything I have done or said has seemed to so indicate, you will disregard it.

Appellant contends that the trial court continually showed bias, making it impossible to conduct a fair and impartial trial. The record shows otherwise. A large part of the record contains the voir dire proceedings where the prospective jurors were questioned at length as to racial attitudes. The trial court permitted sufficient inquiry of the jurors to insure that appellant obtained a fair and impartial jury. The appellant complains only of two exceptions which we have previously discussed. The court cut bail in half and was willing to talk to counsel about reducing it further. In chambers the court remarked:

This is the first time in my nineteen years as a judge that this [racism] — such a thing has been raised. I regret that it has been raised. We all try to get along together and live together, and help one another. But the most important thing in the world, in this courtroom, is to have the proper atmosphere in which to ascertain the truth, whatever the truth may be, and that’s what I, as presiding judge, want.

Appellant’s argument as to the bias of the trial court Telates primarily to proceedings not in the jury’s presence. Suffice it to say that we are of the view the trial was conducted in a fair and impartial manner.

Appellant next asserts for reversal that the trial court erred in admitting into evidence the testimony of Sonja Suter. We do not agree. Since the prosecutrix was unable to identify appellant, Mrs. Suter’s testimony was permitted. In Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971), we held:

If the crime charged has been committed by a novel means or in a particular manner, and the identity of its perpetrator is in issue and not otherwise conclusively established, evidence of a defendant’s commission of a similar offense by that means or in such manner is admissible as tending to show identity of the perpetrator when the similarity of the means or manner employed logically operates to set the offenses apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other.

See also King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972); and Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885 (1971). In the case at bar, Mrs. Suter testified she was raped the night after the prosecuting witness was attacked. The circumstances of the alleged assaults are similar. Both victims were returning to their cars at nighttime from a grocery store when a black man, at gunpoint, abducted, blindfolded, and forced each of them to put their heads down as he drove their car to a garage where he raped them. Each was driven back to the grocery store parking lot and released. Appellant contends he did not offer an alibi or refute the charge, and another witness placed him at the scene of the crime. Therefore, appellant says his identity was not in issue, and Mrs. Suter’s testimony was inadmissible. The prosecuting witness, however, could not identify her assailant. The other witness, who observed him at the scene, merely testified that he saw appellant with a white girl. Appellant’s identity was not “conclusively established” as the person who raped the prosecutrix. Mrs. Suter did not identify appellant as the person who raped her the following night under similar circumstances. Therefore, we hold her testimony was relevant upon the issue of identity.

Appellant next contends that the evidence is insufficient to support the verdict of the jury. We first observe it is well established that on appeal we review the evidence and all reasonable inferences deducible therefrom most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s finding and verdict. Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72 (1970). At approximately 9 p.m., the prosecutrix went to a grocery store to cash a check. When she returned to her car a black male accosted her with a gun, placed a cap over her face and forced her to ride on the passenger side with her head down. He then drove her car to a garage where he pushed her inside and onto a couch where she was told to undress. After undressing himself, he proceeded to fondle various parts of her body. She was required to remove a tampax and then he proceeded to have sexual intercourse with her without her consent. She did not struggle because she was fearful he would kill her. Afterwards her assailant drove her in her car back to the grocery store parking lot where she was released. She could not identify him although she got a glimpse of the surroundings at the garage and a momentary view of the interior of the garage. There was medical proof of recent intercourse. Since the prosecutrix could not identify the appellant as her assailant, Mrs. Suter was permitted to testify based upon the issue of identity. She identified the appellant as being the one who raped her the following night under similar circumstances. Both victims were able to identify the garage as being the place where the assaults were made upon them. There the tampax was found that the prosecutrix was forced to remove and a part of a ther • mometer case which had fallen out of Mrs. Suter’s purse was also recovered. We hold the evidence was amply substantial to support the jury’s finding that the prosecutrix was sexually assaulted in violation of Ark. Stat. Ann. § 41-3401 (Supp. 1973).

Appellant next asserts that a “sentence of life imprisonment without an opportunity for parole, imposed upon a first-offender minor, whose offense resulted in no physical harm to the victim, is so excessive and disproportionate to the illegal act as to constitute cruel and unusual punishment.” We cannot agree. Appellant, 17 years old at the time of trial, was sentenced to life imprisonment for first degree rape pursuant to Ark. Stat. Ann. § 41-3403 (Supp. 1973). However, a life sentence does not absolutely preclude the opportunity for parole. Ark. Stat. Ann. § 43-2807 (b) (Supp. 1973) provides for parole eligibility upon commutation to a term of years by executive clemency. Thereupon, the individual is “eligible for release on parole after serving one-third (1/3) of the time to which the life sentence wL.o commuted, with credit for good time allowances.” Until recently the penalty for rape was death or life imprisonment. However, by Act 362 of 1967 (41-3403, supra) the legislature provided that “[A]ny male, upon conviction of first degree rape, shall be subject to death or thirty (30) years to life imprisonment in the state penitentiary.” Therefore, the legislature permitted the jury the latitude of fixing a lesser sentence than formerly. Appellant presents the argument that the punishment of life imprisonment fixed by the jury is too harsh and cruel because the prosecutrix suffered no serious or permanent physical harm. Appellant recognizes that no one can deny that rape is one of the most morally reprehensible criminal offenses and, historically, the act has been the subject of the most severe penalties and public condemnation. In the case at bar, as previously indicated, the prosecutrix was abducted at gunpoint, subjected to indignities and raped. The jury is in the better position to evaluate the physical abuse as well as any mental anguish experienced by the prosecutrix as a result of her ordeal. Appellant acknowledges that recently in McDonald v. State, 253 Ark. 812, 491 S.W. 2d 36 (1973), we reaffirmed the generally prevailing view that if a sentence is within the limits established by the legislature, it is valid even though it is insisted that the punishment is unconstitutionally excessive. There we said “ [Ijnasmuch as the determination of the limits of punishment lies peculiarly within the legislative province, we have no basis for disturbing the verdict.” To the same effect is Osborne v. State, 221 Ark. 5, 371 S.W. 2d 518 (1963); Randle v. State, 245 Ark. 653, 434 S.W. 2d 294 (1968); and Patterson v. State, 253 Ark. 393, 486 S.W. 2d 19 (1972).

In the case at bar, the testimony, as previously discussed, is amply substantial to support the jury verdict. The punishment assessed was within the limits prescribed by law and less than the maximum. It was for the jury to exercise the right and authority vested in it by our legislature and constitution. Therefore, we hold that the penalty imposed by the jury is not cruel and unusual punishment. As previously indicated a life sentence is not without any opportunity for parole eligibility since executive clemency is available by a commutation of sentence.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I would reverse and remand this case for a new trial because of the trial court’s remarks to appellant’s counsel during the cross-examination of the prosecutrix. It must be remembered that the burden was upon the State to prove to the jury beyond a reasonable doubt that appellant had intercourse with the prosecutrix “by forcible compulsion.”

Mac Chambers, a witness called by the State, testified that he lived near the garage where the alleged rape took place and that on the night of October 31, the defendant asked the witness to take him to Piggley Wiggley. When the witness got outside the defendant got in a car with a white girl and the witness followed the defendant to Piggley Wiggley. Upon arriving at the Piggley Wiggley, the defendant sat in the car and talked to the girl awhile before he got into the witness’ car. The next night at about the same time the appellant and a white girl walked upon the porch where the witness lived. This time at the request of appellant, witness followed appellant to Kroger. Witness described the girl on the second night as smiling when he saw her. Stated that the girl was not scared. Witness also testified that there were a number of stop signs between his house and the Piggley Wiggley and that appellant stopped at each stop sign.

On direct the prosecutrix had testified that upon arriving at a garage the appellant tied her hands behind her back with a rope and pulled my blouse, that 1 was wearing, over my face. On cross-examination the prosecutrix stated appellant started to take off my blouse at first, but I just took it off myself. Thereafter, the cross-examination continued as set out in the majority opinion and culminated with the prosecutrix testifying that she was sitting on the appellant’s lap while nude and with her arms around his neck. At that time the following occurred:

“Mrs. Miller: ‘Your Honor, maybe the prosecutrix would like a few minutes.’
The Court: ‘I beg your pardon?'
Mrs. Miller: ‘Maybe the prosecutrix would like a few minutes to get herself together.'
The Court: ‘Well, you got her this way. Why don’t you go ahead.’ ”

These remarks on the part of the trial court, although not necessarily intended, could be construed as showing some irritation in counsel’s manner of interrogation and that it went beyond the bounds of propriety. In dealing with a remark of a trial court to counsel in McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944), we stated the general principle as follows:

“‘No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.' ‘We are not unaware that many things occur during the trial of a case to fray and irritate the nerves of the presiding judge, and that he is not immune to the natural frailties of humanity, but because of his position he must exercise the greater forbearance and patience.'"

We constantly hold that there is a presumption that every error is prejudicial, unless it is demonstrated otherwise. See Arkansas Highway Comm. v. Jensen, 253 Ark. 795, 489 S.W. 2d 5 (1973), where we stated:

. . The presumption is that error is prejudicial unless it is shown otherwise or manifestly is not...”

The majority’s bald assertion that they “do not construe this remark as ridiculing appellant's counsel” does not show that the court’s demonstrated irritation had no effect in discrediting the testimony elicited on cross-examination. As pointed out in McAlister v. State, supra, a trial judge because of his great influence with the jury: “By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury.” Here I cannot say that the record manifestly shows that the trial court’s expressed irritation did not prejudice either appellant’s conviction or the extent of his punishment. It certainly did not help appellant. Consequently I would reverse for a new trial on this one issue.

For the reasons stated 1 respectfully dissent.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Mrs. Dannie ELLIS et al
    74-132
    514 S.W. 2d 702
    Opinion delivered October 28, 1974

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Cotlett & Henderson, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. The property involved is located on the north side of Rodney Parham Road about 1,500 ft. west of Breckenridge Drive and contains 40.6 ft. of frontage on Rodney Parham Road. The area is wooded, unimproved and consists of 13.5 acres. The commission, on October 1, 1970, acquired by condemnation 9.57 acres and on trial, the jury returned a verdict for appellees, Mrs. Dannie Ellis and Mrs. Louise Ellis, in the amount of $106,200. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred in allowing evidence of a sale which was not placed of record until January, 1971, and it is also urged that the verdict is excessive and not supported by substantial evidence.

C. V. Barnes, a realtor of Little Rock, after thoroughly detailing the basis for his computations, testified that the market value of the 13.5 acres before the taking was $202,500; that the value of the land remaining after the taking of the 9.57 acres, together with two easements, was $31,400, leaving the amount of damages at $171,100. Byron More, a licensed realtor and broker of Little Rock, engaged in the real estate business since 1956, gave a before taking value of $229,500, and an after value at $42,700, or damages in the amount of $186,800. Wesley Adams, engaged in the appraisal business in Little Rock, testified on behalf of the commission and reached the figure of $39,200 as the before taking value of the land. He testified to the after taking value as $7,800, leaving damages at $31,400. James 1’. Johnson, a stall'appraiser for the commission, considered the before value to be $37,125, and the after value as $8,300, or damages in the amount of $28,825.

It is at once apparent that this is one of those eases where the experts for each side are “miles apart” and there is no way to reconcile their differences. No point would be served in detailing the evidence, w'hich is rather lengthy, and simply deals with the reasons given by the experts in reaching their conclusions. We are only concerned with whether the court erred in allowing evidence of a sale not made of record until January, 1971, somewhere between three and four months after the taking of the land by the commission, and further, whether the verdict is supported by substantial evidence. As to the first contention, we find no merit. C. V. Barnes testified that the consideration per acre in a sale of land immediately east, adjoining the subject property, from International Paper Company to Midland Corporation, was $20,000 (he valued the land here in litigation at $15,000 per acre); that the contract for the sale of the adjoining property mentioned by Barnes was entered into on June 3, 1970, but the deed was not recorded until January, 1971. Appellant moved to strike the testimony of Barnes with reference to this sale “which took place after the date of condemnation as it is being used to establish the before value of the subject property.” Counsel for appellees then stated to the court that the evidence was not introduced for the purpose of establishing the before value of the lands but only as a part of the information gathered by Barnes in support of his opinion. In fact, the testimony relative to this sale occurred after Barnes had testified at length about factors which he considered relevant in reaching his determination of value; he was then asked, “What other factors did you take into account in arriving at the values on this property before the taking and condemnation at that $15,000 an acre?” At any rate, this was the only objection made, and clearly refers only to the fact that appellant is asserting (because of the late recording) that the sale took place after the date of taking, and was therefore not admissible. In its brief, appellant argues that the International Paper Company to Midland sale involved property unlike that belonging to appellees, for the former was “whole”, i.e., there were no intervening ownerships However, no such objection was made to the trial court, and we do not consider the point, although the question of the intervening ownerships will be subsequently discussed. As to the objection made, there was no error. In the first place, when we consider the purpose of the evidence, we find it admissible. In Vol. 5, p. 253, § 18.42 [1] Nichols on Eminent Domain, we find:

“A distinction must also be drawn relative to the foundation which must be laid for such evidence based upon whether the comparable sales data is used as support for an expert’s opinion or as independent substantive evidence of value. Quite obviously, when evidence of the price for which similar property has been sold is offered as substantive proof of the value of the property under consideration, a foundation should be laid showing that the other property is sufficiently near that in question and that it is sufficiently like the property in question as to character, situation, usability and improvements to make it clear that the tracts are comparable in value. However, where evidence of sales of similar property is offered not as substantive proof of value, but merely in support of, and as background for, the opinion of an expert as to the value of the land in question, the requirement of such foundation is not so strict.”

The evidence clearly establishes that the contract between International and Midland was entered into on June 30, 1970, and the transaction consummated at that time, though the deed was not recorded until a few months later. No case is called to our attention which holds that the evidence was inadmissible because the deed was not recorded until after the taking, and it is our view that the admission of this evidence was within the discretion of the trial court, and no abuse of discretion has been shown. It might again be pointed out that there was no objection, nor motion to strike the testimony on the basis of the fact that the International to Midland sale reflected enhancement due to highway construction.

We have no hesitancy in stating that appellees offered substantial evidence in support of their position. Mr. Barnes was undoubtedly the most thorough of all the witnesses who testified. The witness described the Ellis lands in detail, using maps and aerials, and testified about the development and growth of the general area. He described the soil, mentioned that all utilities were available, that no drainage problems existed on the property, the fact there was access to the property before the taking of that bordering on the Rodney Parham Road, and he commented that the area is the fastest growing in western Little Rock; further, that the growth rate from 1960 to 1970 in the particular area was 118%.

Morse had been personally involved in the sale or development of numerous properties in the area, including Brookfield Subdivision, Treasure Hills, and Sturbridge Subdivision, and the witness, through his testimony, demonstrated his familiarity with the area involved. Appellant’s principal contention appears to be that there are eight different pieces of property owned by other individuals within the Ellis tract and this fact causes the evidence of appellees’ witnesses to lose its substantiality. We do not agree, for each witness testified that he took this fact into consideration. Barnes, who valued the Ellis property at $15,000 per acre, said that his valuation would have been $20,000 per acre except for the intervening tracts. Morse, who valued the property at $17,000 per acre, stated that his figure would have been $20,000, except for the intervening ownerships. Barnes said that he realized these various intervening owners could not be forced to sell, but emphatically stated that the purchase of the Ellis lands at $15,000 an acre “would have been an excellent investment in October of 1970.” Morse, although agreeing on cross-examination that the intervening ownerships would have to be purchased in order to properly use the Ellis property, was also emphatic in his valuation of $17,000 per acre, and said that he would have paid that for it. The witness had experience in buying tracts with intervening ownerships, and actually was in the process of assembling a tract at the time of the trial.

Except for the ruling on the admissibility of evidence already discussed, there were no objections by appellant to the qualifications of the experts, testimony of these witnesses, no motions to strike the value testimony of either, nor any objections to any of the instructions. Certainly, we could not hold as a matter of law that the evidence offered was not substantial. It is true that the experts on behalf of appellant reached far different conclusions as to the amount of damage sustained, but, of course, the question of which witnesses to believe, or which opinions to accept, was a function of the jury and that body was more nearly persuaded by the witnesses for appellees. We say “nearly" for the reason that it awarded considerably less than the amount of damage mentioned by these witnesses, though considerably more than the amount of damage reached by witnesses for appellant. Our language in City of Mulberry v. Edwards. 256 Ark. 944 511 S.W. 2d 468 (1974) is afiro/ms to the present case, this court stating:

“As to excessiveness, the verdict was within the amounts set by the witnesses, and we are in no position to substitute our judgment for that of the jury."

Affirmed.


author: Lyle Brown, Justice.

text:
    George SWIDERSKI, County Clerk v. W. L. GOGGINS et al
    74-215
    514 S.W. 2d 705
    Opinion delivered October 28, 1974

      John B. Driver, for appellant.

      J. D. Patterson, for appellees.
   Lyle Brown, Justice.

Appellant is the county clerk of Searcy County. Appellees constitute the board of election commissioners of Searcy County. John A. Griffith timely filed with appellees his petition to have his name placed on the ballot as an independent candidate for county judge. Appellant requested of the commissioners that the petitions be turned over to him to the end that he could compare them with the voter registration list to determine the adequacy of the petitions. His request was denied. Appellant filed his petition for a writ of mandamus to compel the transfer of the petitions to his possession. This appeal is from a denial of that petition.

Appellant did not show a clear legal right to a writ of mandamus to compel the commissioners to turn the petitions over to him. Such a showing is a necessary prerequisite to the granting of such a writ. In Naylor v. Goza, 232 Ark. 515, 338 S.W. 2d 923 (1960) we said:

Since * * * the purpose of a writ of mandamus is not to establish a legal right but to enforce one which has already been established, it is essential to the issuance of the writ that the legal right of plaintiff or the relator to the performance of the particular act of which performance is sought to be compelled must be clear, specific, and complete, or, as otherwise stated, plaintiff or the relator must have a clear and certain legal right to the relief or remedy sought by the writ; and, according to some decisions, the right to the writ must be clear, undoubted and unequivocal, so as .not to admit of any reasonable controversy.

The method of filing as an independent candidate is prescribed by Ark. Stat. Ann. § 3-105 (Supp. 1973). Among other things it is provided that “The sufficiency of any petition filed under the provisions hereof may be challenged in the same manner as provided by law for the challenging of Initiative and Referendum petitions”. The same section provides that the petitions shall be directed to the official with whom certificates of nomination are required to be filed. Certificates of nomination for county office must be filed with the county election commissioners. Ark. Stat. Ann. § 3-121 (Supp. 1973). We have held that the county election commissioners have the right to determine the prima facie sufficiency of the petitions. We set out that the determination was to be made by counting the number of signers and comparing the total with the number required by law. With that action, we said the powers of the commissioners are at an end. We said a challenge to the petitions would have to be in a legal proceeding begun by an action to enjoin the commissioners from certifying the proposed candidate. Carroll v. Schneider, 211 Ark. 538, 201 S.W. 2d 221 (1947). The present statutory law is substantially the same as when Carroll was handed down.

We are unable to say the Legislature intended to strip the election commissioners of their authority as related in Carroll. Certainly we cannot say that under the status of the proceedings at the time the petition for mandamus was filed, appellant had a clear legal right to mandamus.

Affirmed.


author: John A. Fogleman, Justice.

text:
    William Jefferson SWAIM v. STATE of Arkansas
    CR 74-77
    514 S.W. 2d 706
    Opinion delivered October 28, 1974

      Larry R. Froelich, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Swaim was found guilt of delivery of a controlled substance. He was arraigned August 23. 1973, on the charge, which was filed June 19, 1973. He entered a plea of not guilty. Thereafter he employed Larry R. Froelich, who had been admitted to the practice of law in Texas, but not in Arkansas, to represent him. Pretrial motions on behalf of appellant were filed by Froelich on September 7 and September 18. On Monday, October 1, 1973, the date set for trial of the case, the circuit judge forbade Froelich to participate in the proceedings, except by advising his co-counsel William H. Howell during recesses of the trial.

While the record is not as clear as it might be, it seems that the judge had originally approved the representation of Swaim by Froelich, so long as this attorney was associated with local counsel admitted to practice in Arkansas. Sometime during the week preceding the trial date, the judge advised Froelich that he was uninformed about Froelich’s credentials. Later the judge called the Supreme Court clerk’s office and learned that Froelich had not been admitted to practice in Arkansas. He also learned that Froelich had a Fayetteville telephone number listed in the name of “Howell & Froelich”. When the case came on for trial, the judge advised Froelich, who seems to have been a resident of Arkansas, that he was engaging in the unauthorized practice of law in Arkansas and asked him not to participate in the trial in any way, except in the advisory capacity previously mentioned. When Froelich objected the judge said that he would have the sheriff keep Froelich out of the courtroom. Howell, who was present, protested that he could not go to trial. The trial judge and Froelich sharply disagreed about their prior understanding concerning Howell’s participation. The judge understood that Froelich had said that Howell was associated in the case and would take over the trial. Froelich denied this and admonished Howell not to go to trial. The judge then stated: “We are going to trial. You just make your record.” Howell then moved for a continuance, stating that he was an associate and partner of Froelich, that Froelich had made the investigation of the case and interviewed the witnesses, that Howell’s only participation in the preparation for trial had commenced on the preceding Friday, when he began doing research and working with Froelich, and that he felt that he could not adequately represent Swaim as “lead counsel" upon such short notice. After defendant's motion to quash the jury panel had been denied, the trial proceeded after a noon recess. The defense was entrapment. During the trial, the court noted that a secretary had been bringing messages to Howell into the courtroom during the morning when the motion to quash the jury panel was being heard.

After trial, appellant requested an evidentiary hearing on a motion for new trial, without success.

Appellant asserts that he was denied the effective assistance of counsel, and that the court abused its discretion in failing to grant a continuance and erred in failing to grant a hearing on his “post-conviction” motions. We have concluded that Swaim was prejudiced by the denial of his motion for a continuance by reason of the fact that he was thereby denied effective assistance of counsel.

It is rather apparent that there was a misunderstanding between Froelich and the circuit judge of which both Howell and Swaim were unaware prior to the trial date. It seems clear that not even Froelich knew that he would be completely barred from the courtroom during the trial until the court’s pronouncement at the very time the trial was scheduled to commence. We cannot agree that the opportunity for conferences during recesses of the trial afforded an adequate opportunity for Howell to avail himself of the knowledge and information acquired by Froelich in trial preparation. We cannot say that Howell or Swaim was guilty of any lack of diligence in the matter. We are not prepared to say that the record in the case dispels any thought that Howell was not adequately prepared.

Appellant attempted to attack the composition of the jury panel by a motion to quash, and sought to support his motion by the testimony of an expert mathematician. Howell’s examination of this witness failed to elicit critical testimony which would have tended to show that the disparity between the makeup of the jury panel and a cross-section of the community, as reflected by the expert's sampling of the voter registration list, could only have resulted from systematic exclusion. After presenting the testimony of the mathematician and of the jury commissioners, Howell had requested that, because of the handicap under which he was operating, he be given a short recess. He stated, for the record, that since he had not talked with the mathematician about his testimony prior to the convening of the court, he was uncertain that he had brought out the essential factors. After the jury was empanelled and sworn, the court granted Howell a 15-minute recess. Thereafter, Howell asked that the motion to quash be “reopened” and the mathematician be recalled for further testimony. When the prosecuting attorney objected, the court refused to grant this request, but permitted Howell to make a statement for the record. In that statement Howell said that the witness, if recalled, would testify that the chances that the particular disparity would occur without discrimination were 820,866,000 to 1.

The only other time, prior to the presentation of evidence, the court afforded Howell to enhance his information about the case and the theories of the defense, was a noon recess from 11:50 a.m. to 1:30 p.m. This recess followed a hearing on a motion in limine as well as the proceedings-relative to the motion to quash the jury panel, but preceded the making of opening statements. The court also recessed the trial until 9:00 a.m., October 2, after the state, having presented the testimony of three witnesses, had rested sometime during the afternoon of October 1.

On several occasions, Howell attempted to elicit testimony pertaining to the entrapment defense through leading questions or offered testimony that was improper for the purposes he stated. Some of these will be later discussed in connection with other points for reversal. These errors could well be attributable to Howell's lack of preparation for trial.

Swaim was entitled to have a record made on his motion to quash the jury panel adequate for appellate review of the federal constitutional question he raised, and to be represented at trial by an attorney whose pre-trial preparation enabled him to develop a trial strategy and to plan the appropriate trial tactics for overcoming the effect oi evidence he might anticipate would be presented on behalf of the state, and for carrying the burden of proving entrapment. It matters not that it may appear to us, on the record made, that the contentions of appellant on these issues are without merit. It does concern us that the attorney did not have adequate opportunity to acquaint himself with Swaim’s version of the case, the state’s evidence, the knowledge possessed by defense witnesses and the underlying theory of the defense.

In reviewing the denial of motions for continuance based upon alleged inadequacy of time for preparation for trial by a defendant’s attorney, we have been hesitant about finding an abuse of discretion, because of the superiority of the trial judge’s perspective, his grasp of the particular situation and his knowledge of developments which are not matters of record. See Therman v. State, 205 Ark. 376, 168 S.W. 2d 833. Before holding that there has been abuse, we view the totality of the circumstances, particularly on the question of prejudice. See Wolfe v. State, 255 Ark. 97, 498 S.W. 2d 878.

We find little help from opinions in cases where the inability of counsel to prepare for trial was attributable to the defendant’s negligent or dilatory action. Neither can we rely upon those cases wherein prejudice was not alleged or shown. This case is also unlike those in which the inadequacy of trial counsel’s preparation was not called to the judge’s attention before the trial commenced. In this case, Swaim, the most interested party involved, cannot be held to blame. Even if it might be said that he should have employed an attorney admitted to pratice in Arkansas, we cannot hold him totally responsible when even the circuit judge was misled as to the status of Froelich. Certainly he cannot be said to have been privy to the misunderstanding between Froelich and the circuit judge. Upon the totality of the circumstances and the necessary emphasis upon a defendant’s right to the effective assistance of counsel, we have concluded that the motion for continuance should have been granted and that the judgment must, for this reason, be reversed.

We find no error upon consideration of those remaining points for reversal asserted by appellant which are likely to arise upon a new trial.

One Jimmy Brewer was called as a witness by appellant. Howell asked leading questions of the witness and the prosecuting attorney’s objections were sustained. Appellant sought to justify this type of examination on the basis that Brewer, who had testified that he had to “work a few deals” in order to get marijuana charges against him dropped, was a hostile witness. According to appellant, Brewer occupied the same position as a government agent would and, because of this, was a hostile witness.

Leading questions on direct examination are allowed under special circumstances which make it appear that the interests of justice require it. Ark. Stat. Ann. § 28-705 (Repl. 1962). Determination whether special circumstances justify direct examination of a witness by leading questions is a matter lying within the sound judicial discretion of the trial judge. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S.W. 256. One of the special circumstances under which a witness may be asked leading questions on direct examination arises when the witness appears to be hostile to the examiner. Sinclair v. Barker, 236 Ore. 599, 390 P. 2d 321 (1964). It is to be assumed, however, that a witness is not hostile to the party by whom he is called. Ill A Wigmore on Evidence (Chadbourne Rev.) 699, § 909 (1970). Although this assumption may not apply to an adverse party, still he is not necessarily a hostile witness. Sinclair v. Barker, supra. See Superior Forwarding Co. v. Sikes, 233 Ark. 932, 349 S.W. 2d 818. It is only when a witness is patently biased or manifestly appears, or is shown to be, hostile that leading questions are allowable on this ground. Sinclair v. Barker, supra; Rossano v. Blue Plate Foods, Inc., 314 F. 2d 174 (5 Cir.1963).

The determination whether a witness is hostile is to be made by the trial judge, in the exercise of a sound judicial discretion, and may be based upon such circumstances as the demeanor of the witness, his situation and relationship to and with the parties, his interest in the case and the inducements he may have for withholding the truth. Sinclair v. Barker, supra; III Wigmore on Evidence (Chadbourne Rev.) 167, (1970) § 774; A Jones on Evidence (6th Ed.) 97, § 24:12 (1972). See also, Rossano v. Blue Plate Foods, Inc., supra; Superior Forwarding Co. v. Sikes, supra. The mere fact that Brewer was cooperating with the police in investigating suspected illegal drug activities did not necessarily make him so hostile to the defendant that the trial judge had no discretion in determining whether leading questions were allowable. We find no abuse of discretion on the showing made here.

Appellant also asserts that the court erred in sustaining the state’s objection to testimony offered through his witnesses Carnes and Gosnell. He contends that the evidence was admissible on the question of entrapment in that it had a bearing on his state of mind and willingness to engage in criminal conduct at the time of the alleged offense. In the case of Carnes, an objection was sustained as to evidence bearing on threats made against her by Bill Burnett, the officer who arrested Swaim and who engaged in the transaction upon which the charge against Swaim was based. The objection was that the question by which the testimony was elicited was leading. It obviously was. Appellant then attempted to show by this witness that Burnett, who had denied that he carried a gun or threatened or intimidated appellant, had threatened him, using a gun. This evidence was offered as an attack on Burnett’s credibility. On that basis, the trial judge correctly ruled that this was a collateral inquiry and the testimony inadmissible.

Appellant has failed to specifically point out to us the testimony of Gosnell he contends was erroneously excluded or the purpose for which it was admissible. The state suggests that this testimony would have been that Burnett offered to sell drugs to Gosnell. If so, it seems that the testimony would have been irrelevant to the issue and, if an attack on Burnett’s credibility, it was collateral. The state also suggests that it relates to other proffered testimony similar to that offered through the witness Carnes. The relevant inquiry was made by a leading question, to which an objection was sustained. Otherwise, the inquiry was about collateral matters. We find no error in the rulings as to these witnesses questioned here.

The judgment is reversed and the cause remanded for a new trial.

      Appellant filed a second motion for an evidentiary hearing on a motion for new trial, accompanied by an affidavit by Howell. We do not consider either this motion or the affidavit. Even though the state briefed the case as if the affidavit was properly before us, we find that the motion and affidavit were filed after appellant had filed his notice of appeal. The trial court correctly held that it had no jurisdiction to act at that time.


author: J. Fred Jones, Justice. Carleton Harris, Chief Justice,

text:
    ARKANSAS STATE HIGHWAY EMPLOYEES LOCAL 1315 v. Maurice SMITH et al
    74-91
    515 S.W. 2d 208
    Opinion delivered October 28, 1974
    [Rehearing denied December 2, 1974.]

      John T. Lavey, for appellant.

      Bill S. Clark and David A. Orsini, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Arkansas State Highway Employees Local 1315 from an order of the Pulaski County Circuit Court denying a petition for a writ of mandamus directing the Arkansas State Highway Commission to deduct union dues from the salaries and wages of the members of appellant Employees Local 1315.

The appellant contends that the trial court erred in dismissing its petition and argues that under Ark. Stat. Ann. § 13-349 (B) (7) (Supp. 1973) it is entitled to the relief prayed; that the statute places a mandatory duty on the Commission to deduct union dues from wages when requested by the employee, and the Commission has no discretion in failing or refusing to do so when so requested. That portion of the provision of the statute on which the appellant relies, reads as follows:

“Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes:
(7) payment of union dues when requested in writing by State employees.”

The question before the trial court was whether this statutory provision was mandatory or permissive, and the question before us on appeal is whether the trial court erred in determining that it was permissive and not subject to mandamus. Ark. Stat. Ann. § 13-349 (B) (Supp. 1973) is a part of the “General Accounting Procedures” Law pertaining to public finances as finally digested following several legislative Acts and amendments.

Ark. Stat. Ann. § 13-349 (A) (Supp. 1973) pertains to monthly, weekly and hourly salaries, and subsection (B) in its entirety reads as follows:

“PAYROLL DEDUCTIONS. Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) contributions to any State Retirement System or approved plan of deferred compensation; (4) group hospital and medical and life insurance deductions; (5) payments to State employees’ credit unions; (6) value of maintenance (prerequisites); (7) payment of union dues when requested in writing by State employees; (8) purchase of United States Government Savings Bonds; and (9) for such other purposes as specifically authorized by law, but not enumerated in this subsection. Provided, that such deductions as arc authorized by this subsection shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State.”

The legislative history and overall purpose of the statute are of some value in determining whether this payroll deduetion provision of the statute is mandatory or permissive and, thus, whether its enforcement is subject to the extraordinary remedy of mandamus.

The original Act 412 of 1955 was entitled:

“An Act to Provide for and Establish General Accounting Procedure for the State of Arkansas and Its Agencies, in Connection with Budget and Pre-Audit Practices, the Recording of the Receipts and Expenditures of State Funds, and Other General Fiscal Transactions."

The purpose of the Act, as recited therein, was as follows:

“(A) To establish budget making procedure and define the duties and responsibilities in connection therewith of the Executive and Legislative Departments of the state government.
(B) To provide for certain budget controls in order to prohibit deficit spending.
(C) To establish and define a system of pre-audit procedure for the expenditure of all state funds.
(D) To establish regulations and uniform procedure for the preparation of payrolls and other disbursement documents for state agencies; and to promulgate rules and regulations with respect to travel, revolving and petty cash funds, reimbursements and other general fiscal transactions.
(E) To further define the powers and duties of the State Comptroller, and the additional duties of the State Auditor and State Treasurer in connection with general accounting procedure and fiscal practices.”

Section 5 of the 1955 Act set up budget controls and provided for each agency to file certain information with the State Comptroller for an allotment system promulgated by the Comptroller with the approval of the Governor.

By Act 165 of 1963 Section 5 of Act 412 of 1955 was amended by adding a new paragraph providing in part as follows:

“(2) The State Comptroller shall describe and explain to each State agency the requirements of the General Assembly in connection with the disbursements of appropriations made available to the agency, and particularly the procedure to be followed in establishing budget accounts within the item of appropriation for ‘maintenance and general operation.' For the purpose of uniformity in procedure, and in order to carry out the intentions of the General Assembly in providing for such budget controls, the State Comptroller shall have the power and authority to make reasonable rules and regulations in connection with all budget practices, and shall have the authority to establish standards for, and set our definitions of the terms used in, the itemized listings of the proposed budget for ‘maintenance and general operation’ as provided for in the appropriation act for each State agency, and for such other items of appropriations as are classified by Section 11 of this Act.”

Section 11 of the 1955 Act recited the purpose of expenditure analysis and budget control, and designated certain classifications under which the appropriations of the General Assembly should be classified. The general classifications so designated were for personal services including regular salaries and extra help, maintenance or general operation, grants and aid, permanent improvements and construction and special appropriations and allotments. Section 13 (B) provided that the State Comptroller should establish a system of classifying the disbursements of state funds in accordance with the object and purpose of such expenditures, and required that he “shall prepare an expenditure code manual covering the system of classifying expenditures, and shall supply all state agencies with a copy of the same.”

By Act 165 of 1963 section 11 of the 1955 Act was also amended pertaining to classification for personal services under regular salaries and extra help and the payroll deduction provision was added to this classification as follows:

“(A) Personal Services — For Regular Full-Time or
Part-Time State Employees:
(A-l) Regular Salaries. This classification shall be applicable to all salaries for state employees where the number and maximum amounts of such salaries are established by law, as provided by Article 16, Section 4 of the Constitution of the State of Arkansas.
(A-2) Extra Help. This title shall be applicable to all part-time or temporary employees, as provided for by law; and unless specifically provided for by the appropriation measure, the number and rates of pay for such temporary employees shall not exceed, at any one time, those established by law for regular salaries for comparable services for the agency having such appropriation for Extra Help.
(A-3) Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; and (4) group hospital and medical insurance deductions, w'here paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period.”

By Act 86 of 1965 subsection (A-3) of section 11 of the 1955 Act was amended to “Permit Payroll Deductions from the Salaries of State Employees for Payments to State Employees’ Credit Unions,” and provided as follows:

“SECTION 1. Subsection (A-3) of Section 11 of Act 142 of 1955, as amended, the same being Sub-Section (A-3) of Section 13-311 of the Arkansas Statutes of 1947, is hereby amended to read as follows:
‘(A-3) Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement system; (4) group hospital and medical insurance deductions, where paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period; and (5) payments to state employees’ credit unions.' ”

By Act 133 of 1967 section 11 of the 1955 Act was again amended to read as follows:

“ ‘Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; (4) group hospital and medical insurance deductions, where paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period; payments to state employees’ credit unions; and (5) payment of union dues when requested in writing by state employees.
SECTION 2. This Act shall take effect July 1, 1967.”

This Act was approved February 23, 1967. Subsection (A-3) of the 1955 Act was again amended in the same 1967 session of the Legislature by Act 487, approved April 4, 1967, and this Act in its entirety reads as follows:

“AN ACT to Amend Act 412, Arkansas Acts of 1955, as Amended, Section 11 (A-3) [Ark. Stats. (1947) Section 13-311 (A-3)]; to Authorize Deductions From the Salaries of Employees for Value of Employees Maintenance; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. Act 142, Arkansas Acts of 1955, as amended, Section (A-3) [Ark. Stats. (1947) Section 13-311 (A-3)] is amended to read as follows:
‘Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the -allowing purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; (4) group hospital and medical insurance deductions; (5) payments to state employees’ credit unions; (6) value of maintenance (prerequisite) as determined by the governing board, commission or head of a state agency; and (7) payment of union dues when requested in writing by state employees.'
SECTION 2. All laws and parts of laws in conflict with this Act are hereby repealed.
SECTION 3. The provisions of this Act shall be effective as of February 1, 1967, other than Item 7, above, which shall become effective July 1, 1967.
SECTION 4. It has been found and determined by the General Assembly that Public Law 89-601 establishes certain minimum wage and overtime payment requirements for certain state agencies, and that the value of maintenance (prerequisite) received by an employee is a definite factor in determining his rate of pay, especially in establishing uniformity of payment for comparable duties and responsibilities, therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.
APPROVED: April 4, 1967."

By Act 876 of 1973 the “General Accounting Procedures” law of 1955, with all amendments thereto, was outright repealed and the entire subject was covered in this one comprehensive Act with section 23 (B) of this Act reading as follows:

“PAYROLL DEDUCTIONS. Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) contributions to any State Retirement System or approved plan of deferred compensation; (4) group hospital and medical and life insurance deductions; (5) payments to State employees' credit unions; (6) value of maintenance (prerequisites); (7) payment of union dues when requested in writing by State employees; (8) purchase of United States Government Savings Bonds; and (9) for such other purposes as specifically authorized by law, but not enumerated in this subsection. Provided, that such deductions as are authorized by this subsection shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State."

Section 28 of this Act, under “Rules and Regulations, provided as follows:

“The Chief Fiscal Officer of the State is hereby empowered to make, amend, and enforce, such reasonable rules and regulations, not inconsistent with law, as he shall deem necessary and proper to effectively carry out the provisions of this act and the public policy as herein before set forth; and the same shall be published in an ‘Administrative Procedures Manual' and distributed to the various State agencies."

This Act was made effective from and after July 1, 1973, and section 33 of the Act provides as follows:

“This Act repeals and replaces Act 412 of 1955 and all laws amendatory thereto. (Sections 13-301, et seq. Ark. Stats. Ann.)”

As already stated, this case comes to us on the denial of a petition for writ of mandamus' and, of course, mandamus is not a writ of right but is directed to the sound discretion of the court, and the parties applying for it must show a specific legal right and the absence of any specific legal remedy. Goings v. Mills, 1 Ark. 11. See also Fitch v. McDiarmid, 26 Ark. 482; State v. Bd. Dir. School Dist. of Ashdown, 122 Ark. 337, 183 S.W. 747.

In Ark. State Highway Comm’n v. Otis & Co., 182 Ark. 242, 31 S.W. 2d 427, the legislative Act involved was stated as follows:

“Section 1 of act 153 of the Acts of 1929 provides that, as soon as possible, the commission shall ascertain the amount of the valid outstanding indebtedness provided for in the act.. To ascertain means to find out or to determine the amount of such indebtedness. In the discharge of the mandate of the statute, it became the duty of the commission to determine the amount and validity of the claims presented.”

Twenty-four of the twenty-six claimants under this Act had reduced their claims to judgments and it was admitted that the claims of the other two claimants were correct as to amounts and the balances due upon them. In a mandamus action brought by the claimants the Highway Commission contended that according to the construction it placed upon the Act under which the claims accrued, it concluded it could not legally pay the claims. During the progress of the trial an opportunity was given the Commission to ascertain the validity and amount of each claim and the Commission refused to do so. The trial court awarded a writ of mandamus against the Arkansas State Highway Commission and adjudged that it should pay the amount of the claims. In reversing the judgment of the trial court on abuse of its discretion, this court said:

“Mandamus is an extraordinary remedy which is awarded not as a matter of right but in the exercise of a sound judicial discretion. It is resorted to for the purpose of securing judicial or ^wcii-judicial action, and not for determining in advance what that action shall be. A party to be entitled to the right must show that he has a clear, legal right to the subject-matter and that he has no other adequate remedy. Merritt v. School District, 54 Ark. 468, 16 S.W. 287; Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988; Patterson v. Collinson, 135 Ark. 105, 204 S.W. 753; Snapp v. Coffman, 145 Ark. 1,223 S.W. 360; Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S. Ct. 99; and Ex parte Wagner, 249 U.S. 465, 39 S. Ct. 317.”

In 55 C.J.S. § 64, at p. 104, is found the following language:

“The duties which will be enforced by mandamus must be clear legal duties, that is, duties which are clearly, specifically, and peremptorily enjoined by law.”

And at p. 108 of this section is found the following:

“It is not sufficient that a statute or ordinance should merely authorize or permit an act to be done to authorize the issuance of a writ of mandamus to compel the performance of the act; the statute must be mandatory and not merely permissive, and must not confer any discretion in the matter; and it has been held that mandamus should not issue to enforce a duty gathered by doubtful inference from a statute of uncertain meaning.”

By the above citations we are not saying that the appellant pursued the wrong remedy in the case at bar, nor do the appellees make such contention. What we do say, however, is that before we can reverse the trial court in its refusal to grant a petition for mandamus, we must find that the duties, the performance of which are sought to be mandated, are clear legal duties specifically and peremptorially enjoined by law, and that the trial court abused its discretion in denying the petition for the writ. We arc unable to reach such conclusion in the case at bar.

From a careful examination of the language employed in Ark. Stat. Ann. § 13-349 (B) (Supp. 1973), as that subsection was amended from time to time, and when examined in the light and context of the entire Act, we are forced to the conclusion that the “payroll deduction” provision as confined to § 13-349 (B) is permissive rather than mandatory. Certainly we cannot say it is clearly mandatory.

This subsection of the statute had the attention of the Legislature at least on five different occasions. As first enacted in 1965, the wording was that “Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes.” This wording was never changed as additional purposes were added to the ones for which payroll deductions were first permitted.

Deduction for union dues was the only item or purpose requiring request, or authority, from the employee and certainly if deductions for union dues were mandatory upon written request of the employee under purpose No. 7, deductions would be mandatory for the remaining eight purnnse« where no requests are required. We are forced to the conclusion that under this statutory provision payroll deductions are permitted for the purposes therein enumerated and are not permitted for any other purposes nor required.

It would appear that the entire payroll deduction provision of the statute was enacted for the protection of state employees against payroll deductions except for the purposes therein enumerated. The ninth purpose added to the list in § 23 (B) of the 1973 Act, supra, lends credence to such overall purpose interpretation. The wording of this added purpose with our own emphasis and bracketed comments states: “(9) for such other purposes as specifically authorized [not required] by law, but not enumerated in this subsection [obviously subsection (B)]. Provided, that such deductions as are authorized [not required] by this subsection [(B)] shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State.”

As above set out, the State Comptroller, and later the Chief Fiscal Officer of the State, was given considerable latitude in devising rules and regulations for the actual disbursement of money appropriated for the various state agencies and departments by the Legislature, and it would appear that the 1973 Act charged the State Fiscal Officer with establishing rules, regulations and procedures for the payroll deductions he was authorized to permit.

The judgment is affirmed.

Harris, C.J., and Brown and Holt, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. I cannot agree that the legislative provision here in question merely permits the Arkansas State Highway Commission (if so desired) to deduct union dues from the salaries and wages of members of appellant Employees Local 1315.

In my opinion, Section 23 (B) of Act 876 of the General Assembly of 1973 is mandatory. The provisions of that section include items that we all know to be mandatory, viz-, (1) withholding taxes; (2) Social Security contributions; (3) contributions to State Retirement System; the other authorized deductions certainly inure to the welfare of the employee, for whose benefit, in my opinion, the act was passed. For instance, provisions No. 4 authorizes deductions for group hospital, medical and life insurance. Under the act, an employee can thus pay this important item on a semimonthly basis, a small amount at a time, without having to save for, or remember to send in quarterly, semiannual, or annual premiums. No. 5 authorizes deductions to State employee credit unions, and this is certainly a valuable benefit. There may be many employees who desire to borrow money but can offer no collateral to assure the repayment of the debt; the provision mentioned provides that collateral. This payroll deduction also affords a means for one to accumulate savings by adding small amounts each payday (about all that State employees can do with the present high cost of living) for the purchase of United States Government Savings Bonds. The examples, to me, clearly support my original premise, viz., that the act was passed for the benefit of the individual State employees, and was a mandate to the several State departments.

Actually, since the deductions entail additional book work, and perhaps in some departments, even an extra employee, I seriously doubt that deductions would be made on a voluntary basis, i.e., simply because the department was permitted to do so. For that matter, appellees deducted union dues under the provisions of Section 23 (B) for about a year and a half before deciding that the provision was not compulsory.

Appellees cite the Federal case of American Federation of Government Employees v. Hampton, et al., 77 LRRM 2977, U. S. District Court, District of Columbia, which deals with 5 USCA § 7301, the section being entitled “Allotment of Dues”. There, the court held that the statute was permissive rather than mandatory, but I should like to point out that there is a vast difference in the two statutes. 5 USCA § 7301 provides that “an agency may (my emphasis) deduct the regular and periodic dues of the organization from the pay of members of the organization in the unit of recognition who make a voluntary allotment for that purpose. Such an allotment is subject to the regulations of the Civil Service Commission, which shall include provision for the employee to revoke his authorization at stated six-month intervals.” To the contrary, our statute provides:

“Deductions from the payrolls of State employees, both regular and extra help, shall be (my emphasis) permitted only for the following purposes ***.”

I agree with appellant’s argument that the words “shall be” are mandatory, and require the various State agencies to implement the deductions requested by their respective employees. The words “permitted only”, in my opinion, mean that the State agency can only make the payroll deductions for the particular classifications enumerated, i.e,, “permitted only” are simply words of restriction, which limit the type of payroll deductions, and prevent deductions from wages for other purposes not specifically mentioned.

It is my view that the statute imposes a clear legal duty on appellees to deduct the dues, and the petition for mandamus should have been granted.

I respectfully dissent.

Brown and Holt, JJ., join in this dissent.

      While I recognize that the testimony has no probative value, it is interesting to note that State Senator W. D. Moore, Jr., who sponsored the bill in the Senate, testified that in response to questions from the Senate floor during discussion of the measure, he informed the Senators that the provision here in controversy was discretionary on the part of the employee, i.e., the employee had to make the written request — but the deduction was mandatory on the part of the employer (the State agency) once the request was made.


author: J. Fred Jones, Justice.

text:
    Albert C. KRUZICH et al v. The WEST MEMPHIS UTILITY COMMISSION
    74-179
    515 S.W. 2d 71
    Opinion delivered November 4, 1974

      Nance, Nance & Fleming and Stephen K. Wood, for appellants.

      R. E. Wallin and Jake Brick, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Albert C. Kruzich and other residents of West Memphis, Arkansas, from a decree of the Crittenden County Chancery Court denying their petition for a return of money they paid for fuel adjustment charges added to their electric bills, and denying their petition for a permanent injunction restraining the appellee, West Memphis Utility Commission, from collecting fuel cost adjustment charges for electric services. The question presented is primarily one of law stated by the appellants in the point they rely on as follows:

“The chancellor’s holding, that although a schedule of rates for the several services furnished by the appellee was established by city ordinance, said rates may be amended by resolution of the city council to allow appellee to pass on to its consumers indefinite and increased operating expense, was contrary to the law and the evidence.”

The facts appear as follows: Prior to 1954 the City of West Memphis purchased the privately owned electric power distribution system in West Memphis. In December, 1954, the appellee-defendant, West Memphis Utility Commission, was created by Municipal Ordinance No. 292 under authority of Act 562 of the Acts of 1953, Ark. Stat. Ann. §§ 19-4051 through 19-4060 (Repl. 1968). The utility rates in effect at the time of purchase were adopted under Ordinance No. 292 and were confirmed from time to time by additional ordinances in connection with bond issues.

The City of West Memphis purchases its electrical energy at wholesale from the privately owned Arkansas Power and Light Company and distributes the energy through its own distribution system to its local consumers. The last contract between the Arkansas Power and Light Company and the City of West Memphis was dated February 2, 1967, and was for a period of 20 years, with an automatic year to year extension clause in the absence of notice to the contrary. The contract between the city and AP&L provided that both the company and the city reserved the right to seek amendments as to increase or decrease in the rates and charges set forth in the contract in accordance with law, from any state or federal regulatory body having jurisdiction thereof; and further provided, that the charges and payments for electric service, required to be paid by the city under the agreement, should be made only from the gross revenues of the city electric system as a necessary expense of its operation. The cost of electrical energy to the city increased from time to time and the city through the Commission absorbed the additional cost until September 20, 1973, when by Resolution No. 472 the city authorized the West Memphis Utility Commission to pass on to the consumer the fuel cost adjustment increases included in the cost of electric power from AP&L.

Only a portion of the original Ordinance No. 292 is exhibited in the record and it reads as follows:

“The board shall, with the approval and confirmation of the city council, make a schedule of rates for the several services and for the different classes of consumers, and shall make such rates for the service rendered as will enable them at all times to pay operating expenses, interest, sinking funds requirements, amortization payments, reserve for working capital, remunerations and replacements, casualties and other fixed charges, and in the event service is furnished consumers or users outside the city, the rates charged such persons shall not necessarily be as low as the rates charged within the city. The commission, by and with the approval and confirmation of the city council, shall have the right to change the schedule of rates for utilities in the city and outside the city from time to time as in their judgment may be necessary or proper. Any rates approved by the city council shall be sufficient to provide for payment of all bond maturities or other indebtedness issued against the utility or constituting a lien against the systems or the revenue therefrom, including reserves therefor and provide for all expenses of operation, and rcplacemeñt and maintenance of the plants or systems."

That portion of Resolution No. 472 complained of by the appellants reads as follows:

“The City Council of the City of West Memphis authorizes fuel cost adjustment increases included in the cost of electrical power from Arkansas Power and Light Company to the West Memphis Utility Commission and/or the City of West Memphis be passed on to the ultimate consumer on bills or statement, from said Commission in direct proportion to the amount of power ultimately consumed by the respective customers of the West Memphis Utility Commission.”

The appellants argue that since the original rate schedule was authorized by municipal ordinance, it cannot be changed by municipal resolution. The appellee argues that the fuel cost adjustment charges fluctuate from month to month and are not actually a change in rate schedule. It argues that the additional costs are of a temporary nature; that the approval and confirmation by the city council is in the nature of an administrative act and may be accomplished by resolution. The chancellor agreed with the appellee and we agree with the chancellor.

In McQuillin, Municipal Corporations, rev. vol. 5, § 15.01, is found the following statement:

“While the term ‘ordinance’ has been used in various senses, the term is generally used, in this country, to designate a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct, relating to the corporate affairs of the municipality."

In § 15.06 McQuillin says:

“The general rule is that where a charter commits the decision of a matter to the council or legislative body alone, and is silent as to the mode of its exercise, the decision may be evidenced by resolution.”

And, at § 1.5.02 McQuillin distinguishes resolutions and ordinances as follows:

“A ‘resolution’ is not an ‘ordinance,’ and there is a distinction between the two terms as they are commonly used in charters. A resolution ordinarily denotes something less solemn or formal than, or not rising to the dignity of, an ordinance. The term ‘ordinance’ means something more than a mere verbal motion or resolution, adopted, subsequently reduced to writing, and entered on the minutes and made a part of the record of the acting body. It must be invested, not necessarily literally, but substantially, with the formalities, solemnities, and characteristics of an ordinance, as distinguished from a simple motion or resolution.
A resolution in effect encompasses all actions of the municipal body other than ordinances. Whether the municipal body should do a particular thing by resolution or ordinance depends upon the forms to be observed in doing the thing and upon the proper construction of the charter. In this connection it may be observed that a resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government, to continue in force until the ordinance is repealed. An ordinance is distinctively a legislative act; a resolution, generally speaking, is simply an expression of opinion or mind concerning some particular item of business coming within the legislative body’s official cognizance, ordinarily ministerial in character and relating to the administrative business of the municipality. Thus, it may be stated broadly that all acts that are done by a municipal corporation in its ministerial capacity and for a temporary purpose may be put in the form of resolutions, and that matters upon which the municipal corporation desires to legislate must be put in the form of ordinances.”

See also Charles S. Rhyne, Municipal Law, § 9, at p. 226.

Act 562 of 1953, Ark. Stat. Ann. §§ 19-4051 through 19-4060 (Repl. 1968), is the charter authority for the creation and function of the appellee commission in this case. Section 19-4051 provides that a city of the first class may, by the enactment of an ordinance, create a commission to operate, control and supervise such of its municipally owned light plants as may be prescribed by an ordinance and which are not already being operated by a commission created by or pursuant to valid special or local acts of the Arkansas Legislature.

Section 19-4053 authorizes the city council, by proper ordinance, to create a body consisting oí live members for the purpose of directing, managing and controlling the operation of the plants and directs the terms and manner of selecting the commissioners, and the manner for filling vacancies on the commission.

Section 19-4055 provides for the manner in which the board shall be organized and § 19-4056, pertaining to the powers of the board, reads as follows:

“Said board or boards created pursuant to the provisions of this act [§ 19-4051 — 19-4060) shall have the full power to operate and control the plant or plants entrusted to its direction by the city ordinance creating said board as provided in Section 1 [§ 19-4051] hereof and, subject to such restrictions as may be prescribed in the ordinance creating said board or boards, said board or boards shall have full power to buy and pay for out of the earnings or revenues of said plants for the welfare and benefit of the citizens and inhabitants of the Municipal Corporation, and may purchase and pay for out of the revenues derived from the operation of such power plants, all necessary equipment needed in the operation of such plants, for such lands as may be necessary and may also sell any property, real [or] personal, not necessary to be used in the operation of the plant or plants; but shall not sell or rent the right to own, use and operate the necessary equipment of such plant or plants.” (Our emphasis).

Section 19-4057 provides that subject to such restrictions or Imitations as may be imposed by municipal ordinances, the board or boards created pursuant to this act shall have plenary powers with reference to the selection, supervision and payment of compensation for all employees required in the operation of the plant provided:

“that nothing herein contained shall be construed to limit or impair the rights of the City Council to approve any rates or charges for electric, water or sewer service and provided further that any ordinance passed by the City Council may make additional provisions for the control and operation of Light, Water or Sewer Plants, may provide a limitation as to salaries or wages to be paid by said Board including salaries to be paid to members of said Board lor their services as members thereof.”

This section then provides that unless otherwise limited or authorized by city ordinances, the salaries to be paid to the members of the board should be $10 a month or $5 for each meeting, whichever shall be the lesser sum.

It will be noted that this Act does not expressly authorize the commission to fix rates to be charged for electric services as does a later act, Act 115 of 1957, Ark. Stat. Ann. § 19-4061 through 19-4082 (Repl. 1968), pertaining to the creation of commissions for the operation of waterworks and distribution systems or electrical plants and systems where the city had owned and been operating same for a period often years; but in the 1953 Act, under which the appellee commission was created, § 19-4058 of the statute provides as follows:

“Except as its powers may be limited by city ordinance, the board shall have the same rights and powers with reference to the nature, extent and performance of its duties and with reference to the employment of employees and other necessary assistants as is now provided by law with reference to the Boards of Commissioners of Municipal Improvement Districts.” (Our emphasis).

Of course, prior to the 1953 and 1957 Acts, cities of the first class were authorized to construct and operate plants and systems for the distribution of public utilities through boards of commissioners of municipal improvement districts and the powers of such commissioners, as referred to in § 19-4058, supra, are found in Ark. Stat. Ann. § 20-315 (Repl. 1968) as authorized by Act 242 of 1949, as follows:

“ * * * As long as the Commissioners continue to operate such water and electric light districts they shall make an annual report to the City or 1 own Council showing in detail all receipts and disbursements made by them; and as long as they continue such operation they shall have the right to fix the rates to be paid by consumers of water and electric light or power, and such rates shall be fixed as nearly as possible at amounts which will pay the bonds of the district [as they mature, so as to relieve the real property of the district] as far as possible from the burden of taxation therefor. From the rates fixed by the Board, any property owner may take an appeal to the circuit court of the county, which shall confirm or set aside said rates as it finds just, and if it sets aside rates fixed by the Board, it shall itself fix rates which will be reasonable and adequate for the purposes aforesaid.”

We are of the opinion that when the city council of West Memphis enacted the initiatory Ordinance No. 292 in 1954, as authorized by Act 562 of 1953, the commission was invested by the statute with such authority therein conferred, subject only to “such restrictions as may be prescribed in the ordinance creating the board,” as provided in § 19-4056, supra, and “except as its powers may be limited by city ordinances,” as provided in § 19-4058, supra. The only limitation placed upon the administrative duties and authority of the board by Ordinance No. 292 was that the municipal council reserved the right to approve and confirm the rate schedule and any changes therein by the commission.

The powers thus conferred upon the commission were derived directly from the Legislature and subject only to such restrictions the municipal council might impose by ordinance. The only restriction the city council saw fit to place on the commission was that in exercising its powers conferred by the Legislature, the commission do so with the “approval and confirmation” of the city council. The statute does not provide for or direct the manner in which the city council must approve and confirm the actions of the commission pertaining to rates or changes therein. In fact, the legislative Act does not require that the action of the commission in this area be approved or confirmed at all.

We are of the opinion, therefore, that the rights to approve and confirm thus reserved in Ordinance 292 pertained to the administrative functions of the commission under authority granted by the Legislature and the right to approve and confirm, as reserved in the ordinance, was simply a restriction placed on the administrative rights and duties of the commission as from time to time performed by it. We conclude that such approval and confirmation were legally expressed in this case by resolution and did not require the more solemn, formal and permanent form of a municipal ordinance.

The decree is affirmed.

Byrd, J., dissents.