William E. BEAUMONT, County Judge of Pulaski County, Arkansas v. Richard B. ADKISSON, Circuit Judge
79-311
Supreme Court of Arkansas
January 14, 1980
267 Ark. 511 | 593 S.W. 2d 11
STROUD & MAYS JJ, not participating.
Opinion delivered January 14, 1980
James L. Sloan, for petitioner.
Robert L. Brown, of Harrison & Brown, P.A., for Amicus Curiae, County Judges Association of Arkansas.
DARRELL HICKMAN, Justice. William E. Beaumont, County Judge of Pulaski County, asks for a writ to prohibit Pulaski County Circuit Judge, Richard B. Adkisson, from ordering Beaumont to show cause why he should not be held in contempt of court. We granted a temporary stay and now make it permanent.
Adkisson, who is one of five Pulaski County Circuit Judges, issued an order September 7, 1979, finding that two of his employees, a Probation Officer/Bailiff and a Secretary/Case Coordinator, should be paid salaries of $16,500.00 per year. The order recited, as its authority, Act 629 of 1979, Acts of Arkansas. The order instructed “Pulaski County, Arkansas, the county judge thereof, and all other appropriate officers of Pulaski County, Arkansas” to pay the salaries. The court‘s order is Exhibit A to this opinion. Act 629 is Exhibit B.
Beaumont presented an ordinance to the Pulaski County Quorum Court which would have appropriated the money to pay these salaries, however, the quorum court on two occasions failed to pass the ordinance. Consequently, Beaumont was told by Judge Adkisson to appear and show cause why he should not be held in contempt for refusing to pay the salaries as ordered.
Beaumont argues in his petition that the act he has been commanded to perform is illegal and that, therefore, the court has no jurisdiction to enforce it. Beaumont attacks the order on four grounds. First, Act 629 violates the equal protection clause of the state and federal constitutions. Second, that a county judge cannot expend funds for which there has been no appropriation. Third, that Act 629 violates the ban in the state constitution on local legislation. Fourth, that it unconstitutionally delegates legislative power to a judicial officer. We will deal only with the third and fourth points.
The County Judges Association has filed an amicus curiae brief and essentially argues that Amendment 55, Section 3, to the Arkansas Constitution prohibits the county judge from disbursing funds without a quorum court appropriation; that the General Assembly has no authority to fix the number of county employees or the compensation they receive, or that, in any event, there has to be an appropriation; and that the court‘s order is invalid.
Prohibition is the proper remedy in this case. We said in Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W. 2d 157 (1958).
... The writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction and where the remedy by appeal, though available, is inadequate. . . . And where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. . . . Id. at 920.
There is no doubt that the Act violates
These cases relate to legislative acts that apply generally to all officials in a general category, although only one person might hold the office affected. The act before us distinctly limits itself to one of five circuit courts in a circuit and clearly violates the intent of
Since the Act is void, it follows that the respondent court had no jurisdiction to issue its order. In the case of Mears v. Adkisson, 262 Ark. 636, 560 S.W. 2d 222 (1978), we held that where a court order was based on an invalid act, the court had no jurisdiction to act and, therefore, its order was void and subject to a writ of prohibition.
Act 629 is also an unlawful delegation of legislative authority. It delegates to the “Sixth Judicial Circuit, Fourth Division Circuit Court” the right to set the salaries of two employees. While Act 629 does provide that the sum will be not less than $15,600.00, nor more than that which the court reporter receives, a sum not limited, it gives a judge a right to
The respondent judge argues that we have held in previous cases that it was not a delegation of legislative authority for certain state agencies to fix salaries within defined limits. The case of Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534 (1962), is cited as authority for that argument. In the Hooker case the question was raised whether the Highway Commission and the State Board of Education were unlawfully delegated the authority to fix the salaries of employees. The act in question in the Hooker case gave both departments the right to determine the number of employees needed and to fix their salaries within maximum authorizations. We held that this did not violate
Whether the state may order a county to pay salaries in such circumstances is not properly before us. It is also unnecessary for us to reach the question of whether there has to be an appropriation by the county before such a state act is valid. Neither is this a question of whether a court can order a county to pay expenses regarding the administration of justice where the county refuses to pay those necessary expenses.
We should point out that Beaumont is not subject to a contempt procedure in this case. Amendment 55 changed the duties of the county judge from being those of an official who pays claims as a judicial officer to those of an officer who pays claims as an administrative officer. See Mears v. Hall, 263 Ark. 827, 569 S.W. 2d 91 (1978). The quorum court appropriates the money and the county judge simply executes those appropriations as an administrative officer. The
FOGLEMAN, C.J., concurs in part and dissents in part.
STROUD and MAYS, JJ., not participating.
EXHIBIT A
IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FOURTH DIVISION
IN THE MATTER OF THE SALARY OF THE PROBATION OFFICER/BAILIFF, and THE SECRETARY/CASE COORDINATOR OF THE FOURTH DIVISION OF THE PULASKI COUNTY CIRCUIT COURT EX PARTE
ORDER
Pursuant to the authority of Arkansas Act 629 of 1979, the court finds that the salary of the Probation Officer/Bailiff and the Secretary/Case Coordinator should be increased to and set at $16,500.00 per year, a sum which does not exceed the annual salary of the court reporter of the Fourth Division of the Pulaski County Circuit Court; that the present compensation is inadequate for these positions and the added compensation is necessary to keep competent personnel employed in the positions; and that the court has the discretion under said Act to set the salaries of the said Probation Officer/Bailiff and Secretary/Case Coordinator at $16,500.00 per year; and hereby directs Pulaski County, Arkansas, the county judge thereof; and all other appropriate officers of Pulaski County, Arkansas to pay same.
It is, therefore, CONSIDERED, ADJUDGED and ORDERED that the salaries of the Probation Officer/Bailiff and the Secretary/Case Coordinator shall be and is hereby
/s/ Richard B. Adkisson
Circuit Judge
EXHIBIT B
ACT 629, Ark. Acts of 1979
“An Act To Amend Act 3 of 1971, To Provide For An Increase in Salaries, And For Other Purposes.”
Be It Enacted By The General Assembly of the State of Arkansas:
Section 1. Section 1 of Act 3 of 1971, as amended, is hereby amended to read as follows:
“Section 1. There is hereby created the office of Probation Officer/Bailiff, Deputy Probation Officer/Clerk and Secretary/Case Coordinator of the Fourth Division Circuit Court of the Sixth Judicial Circuit.
The Sixth Judicial Circuit, Fourth Division Circuit Court, is recognized as the Court created by Act 15 of the First Extraordinary Session of 1970.”
Section 2. Section 3 of Act 3 of 1971, as amended, is hereby amended to read as follows:
“Section 3. The Probation Officer/Bailiff shall be appointed by the Judge of the Sixth Judicial Circuit Court, Fourth Division, and shall serve at the will of the Judge. In addition to the Probation Officer/Bailiff, the Judge may appoint one Deputy Probation Officer/Clerk and a Secretary/
Section 3. Section 4 of Act 3 of 1971, as amended, is hereby amended to read as follows:
“Section 4. The salary of each person appointed as set out in Section 3 shall be set at the discretion of the Judge of the Sixth Judicial Circuit, Fourth Division, at a sum not less than Fifteen Thousand Six Hundred Dollars ($15,600.00) per annum, but not to exceed that of the court reporter, which shall be paid by Pulaski County, Arkansas.”
Section 4. All laws and parts of laws in conflict with this Act are hereby repealed.
Section 5. It is hereby found and determined by the General Assembly that the position of Probation Officer/Bailiff, Deputy Probation Officer/Clerk and Secretary/Case Coordinator are necessary to insure efficient and proper administration of justice in the Fourth Division of Circuit Court in the Sixth Judicial Circuit and that increased salaries as provided in Section 4 of this Act must be provided immediately. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.
[Approved by Governor March 28, 1979]
JOHN A. FOGLEMAN, Chief Justice, concurring in part, dissenting in part. I agree that the writ should issue in this case solely because under
On the other hand, if Act 629 of 1979 and the trial court‘s action based upon it are valid, appropriation by the quorum court would be automatic, as the quorum court would have no discretion in the matter. Mears v. Hall, supra. Quattlebaum v. Davis, 265 Ark. 588, 579 S.W. 2d 599. Even though we said, in Quattlebaum, that the county court [judge] would have no discretion in determining whether payment should be made of obligations of a county mandated by the General Assembly, this does not mean that the county judge can be held in contempt for failure to pay funds from the county treasury, where, as here, the quorum court has refused to make an appropriation, and where no other proceedings to establish the county‘s liability have been had.
These are two bases upon which the majority finds Act 629 invalid. I do not agree that either basis is sound. Holding that the act is local legislation is contrary to every decision of this court where the administration of justice is concerned, particularly where the single court involved may issue summons to every county in the state, as every circuit court in Arkansas may do.
It must be remembered that counties are still civil divisions of the state for political and judicial purposes and are the state‘s auxiliaries and instrumentalities in the administration of its government. They are political subdivisions of the state for the administration of justice. The word “county” signifies a portion of a state resulting from a division of the state into such areas for the better government thereof and the easier administration of justice. In these respects we have clearly held that nothing in Amendment 55 changed the status of the county insofar as its primary purposes and functions (one of which is the administration of justice) are
In Mears we said:
*** An act does not have to be necessary to the administration of justice in order to avoid the ban against local legislation. It is not local legislation if it pertains or relates to the administration of justice.
We then added:
In the case cited by the majority in McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789, the issue pertained to fees of the clerk of the Chancery Court of Sebastian County and those of the stenographer of the Tenth Chancery District, and it was held that the act allowing a fee to the court stenographer to be credited to the “Stenographer‘s Fund Account” of the chancery district was not local legislation. The reason was that the statute related to the administration of justice because under modern conditions, the court reporter is an essential officer in reporting the proceedings of the courts. See Sebastian Bridge District v. Lynch, 200 Ark. 134, 138 S.W. 2d 81. The same question was involved and the same answer given in McLellan v. Pledger, supra. Other cases holding that legislation relating to the administration of justice is not local are: Smalley v. City of Ft. Smith, 239 Ark. 39, 386 S.W. 2d 944; City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W. 2d 829. Legislation dealing exclusively with the functions of a court of statewide jurisdiction is not local legislation. Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647. The rationale of these holdings was first stated in Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844, in the following language:
*** Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens within the jurisdiction of the court. Whether an act of the Legislature be a local or general law must be determined by the generality with which it affects the people as a whole,
rather than the extent of the territory over which it operates; and, if it affects equally all persons who come within its range, it can be neither special nor local, within the meaning of the Constitution. ***
We elaborated upon this rationale in an opinion on rehearing in Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617, in treating and disavowing an intention to impair the holding in Waterman, saying:
*** This is in recognition of that principle of state sovereignty under which the state, through its Legislature, may protect its own interest, and, by virtue of it, the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. ***
Again, in speaking of the rationale of Waterman in Cannon v. May, 183 Ark. 107, 35 S.W. 2d 70, we said:
*** A Missouri case was cited in support of the ruling. The Supreme Court of Missouri based its holding on the principle that the judicial system of the state was a whole and that acts dealing with the courts have been usually held general although not applicable to every court of like nature in the state. The ruling proceeds upon the doctrine that the judicial department of the state is a “composite unit.” *** [Emphasis mine.]
The rationale of Waterman, Cannon and Webb was relied upon in Buzbee.
In Smalley v. City of Ft. Smith, 239 Ark. 39, 386 S.W. 2d 944, we upheld Act 88 of 1963 against the contention that it was unconstitutional as local legislation and said that “legislation relating to the administration of justice is not local,” citing Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 and Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647. [Emphasis mine.]
If we didn‘t mean that legislation relating to the administration of justice was not local legislation under Amendment 14, we should not have said so, over and over. See Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113, 124.
Given today‘s crowded court dockets and the prevalence of crime, who is to say that either a secretary/case coordinator or a probation officer/bailiff are non-essential to the administration of justice in the particular court involved? Obviously, the General Assembly of the State of Arkansas thought they were essential. Statutory authorization has been given circuit judges to require the payment of expenses incident or necessary to a speedy and efficient administration of justice. Pope‘s Digest § 2858; Crawford & Moses Digest § 2230.1
Every act carries a strong presumption of constitution-
The presumption of constitutionality fully applies when a statute is attacked as local or special, and, where it is doubtful whether the act violates the constitution, the doubt must be resolved in favor of constitutionality. State v. Lee, 193 Ark. 270, 99 S.W. 2d 835; Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498.
It is true that an act is special when it arbitrarily separates some person, place or thing from others upon which, but for the separation, it would operate, but classification is still permissible if it bears a reasonable relation to the purpose of the statute. Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; Hensley v. Holder, 228 Ark. 401, 307 S.W. 2d 794. But where differences in effect of a statute are reasonably related to the purposes of the law, the statute is general and not local or special. Whittaker v. Carter, supra.
A statute that is limited in effect to only one or a few classifications is not local or special if the classification is not arbitrary and bears a reasonable relation to the purpose of the act. Thomas v. Foust, 245 Ark. 948, 435 S.W. 2d 793. The General Assembly may make a classification where it is appropriate, germane to the subject and based upon substantial differences which make one situation different from another. Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991. The judgment of the General Assembly in making statutory classifications should be controlling, unless the classification is clearly arbitrary or is manifestly made for the purpose of evading the constitution. Id.
We have dealt with the question of local and special
*** We cannot agree that this had the effect of making the act local or special. The compensation provided in the counties named was deemed sufficient by the Legislature to cover all the necessary expenses of the road commissioner and the Legislature had the right to so find and provide.
Given the presumption of constitutionality and due regard to the extent of the General Assembly‘s control of statutory classifications, the majority has gone much too far in holding the act in question manifestly unconstitutional. It may be, but there is inherent in the legislative action a finding that the classification was appropriate and warranted. There is too much that we do not know to warrant an arbitrary declaration that the act is local and special. Does this judge preside over trials of both civil and criminal cases? If so, a case coordinator would have more burdensome duties and greater responsibilities than if not. How does the number of cases usually disposed of on this judge‘s docket compare with the number on the dockets of other judges? How many people have been released on probation in criminal cases whose supervision is under the ultimate control of this judge? How does the pay range compare with that of like employees on the staffs of other judges? These and many other questions should be answered before this court declares such an act unconstitutional as local and special in this limited action for prohibition in a contempt proceeding.
I cannot agree that Act 629 is an unlawful delegation of legislative authority. The judge no more fixes the salary than does the Arkansas State Highway Commission or the State Board of Education who were involved in Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534. The holding there that the acts involved did not violate Art. 5, § 29, has nothing what-
In Hooker in treating the contention that Act 200 of 1961 was unconstitutional in that it directed unlawful delegation of power in violation of
*** The act establishes the maximum salaries and wages for a maximum number of employees by grades and classes. The act does permit the Highway Commission to employ a lesser number of employees and to pay less than the maximum salaries and wages to employees in the various grades and classes. The need for employees and the salary or wage deserved by the individual employee are left for the Highway Commission‘s determination. The delegation of this power is necessary for the orderly and efficient operation of the Highway Department and is not repugnant to Article 4 of the State Constitution. The Legislature has the right to delegate that power to determine facts upon which the law makes or intends to make its action depend. McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428. In this case the facts we repeat are: first, the need for the employee, and second, the ability and efficiency of the employee.
In speaking of Act 465 of 1961, relating to the State Board of Education, we said:
The State Board of Education is empowered to determine the need for employees and to fix the number of employees and salaries, within maximum authorizations. In this connection what we have said about Act 200 suffices here. The Governor is authorized to reduce the amount to be expended for Transportation Aid in each fiscal year. We find that his action must depend upon the facts to be determined and that this require-
ment meets the test set forth in McArthur v. Smallwood, supra, and as further set forth in State v. Davis, 178 Ark. 153, 10 S.W. 2d 513, as follows:
“The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.”
We went on to point out that
Act 465 does not authorize the payment of a greater salary or fee to any employee than the amount fixed by law. We construe this provision to mean that the Legislature has the sole authority to establish the maximum remuneration to be received by any State employee and to establish the maximum number of such employees. We can find no requirement to the contrary.
Absolutely no significance was given in Hooker to the fact that appropriated funds were involved in treating the “salary-fixing” powers delegated to the two agencies of the executive branch of the government. Why can a judicial officer of our government not fix salaries within a given range, if executive officers can? In its consideration of Hooker, the majority has not treated the questions raised here at all.
It would be far, far better if the court would leave the answer to the question of constitutionality to another day