Jones v. Mears

(Red) HALL, Jimmy JONES, Auditor and Nancy J.

Treasurer, for the State of respectively Arkansas, V. FLETCHER, T. et al v. MEARS and Bob

Roger SCOTT

74-49 delivered

Opinion June [Rehearing denied July 1974.] Smith, Williams, Clark, & Friday, Eldredge William by: J. III, Smith and Paul Benham for appellants. III, A. and Herbert Rule

U. C. Gentry appellees. Cole, Gore, Brashares, Cladouhos& C. Sarah by: James D.C., Curiae, C. for Amicus Citizens Carey, Washington, Conference on State Legislators. Woods, for Amicus Curiae Ad Com- Hoc

Henry Attorney mittee on Legislative Reorganization. Sharpe, This is a Harold Special taxpayer’s Justice.

action the of challenging Act 274 of the constitutionality 1971 and of Act 2 of the General Assembly of 1973. of

Act 274 authorizes the members reasonable, actual, to obtain reimbursement for in incurred the members and perfor- necessary by expenses in- connected with and activities which are directly ming the interim cidental to their official duties during period Act fixes an max- between sessions. The escalating legislative per month for $150.00 the 1971-72 fiscal imum follows: $250.00 $200.00 month for 1972-73 fiscal the year, year, per 1973-74 fiscal month for the year. per Act 2 of the funds to defray appropriates necessary the of the of the 69th General and Senate Assembly, expenses in 274. reimburse the Senators as Act provided this filed action that Act taxpayers alleging Appellee and 2 of 1973 are void as an effort to make an Act their salaries allowance thereby increasing legislators, in violation of Amendment to the Arkansas Constitution. with facts as found Trial We the following V. T. Court: Senator Fletcher received follow- payment ap- sums under of Act 274 of from an ing authority $150.00 month for 798 of made 1971: propriation per 1972, $150.00 the month of July, through January, per month for the months of June, April through December, $200.00 month for months ofjuly per through 1972, inclusive; $2,950.00. a total These were payments as a result of his made to Senator Fletcher with filing Senate his statements of interim in- Secretary expenses on curred basis. These statements were not accom- monthly that said showing expenses panied by supporting papers of official duties incurred in the transaction claimed had been no records law. Fletcher itemizing Senator kept required by was claimed. which reimbursement individual for expenses 10, 1973, of the Defendant Senators On January $600.00 in amount of received a warrant postage, $1200.00 ex- diem expense; telephone telegraph under $1800.00 issued for contingency expenses, pense of Act of 1973. The amounts to each paid authority warrants for Defendant Senators expense contingency $1800.00 the amount telephone postage, $600.00 the amount telegraph expense paid them before for these were incurred. expenses any purposes fact, on the Trial Court conclud-

Based these of findings of had official ed that the members the General no Assembly sessions, duties the interim between and that during period Act 274 and Act 798 of the Acts of the General 1971 void, and unconstitutional the restrained Assembly Treasurer and Auditor of the of Arkansas from State paying under the of Act 274 warrants and authority granted judg- ment Defendant Senators for the amounts received against by them under the of Act. the authority

The relied on for reversal include: points appellants (1) Act 274 1971 of does increase the salaries of members of 48 does not violate Amendment Assembly Constitution; to the in- (2) Arkansas Act of 1973 does not crease the salaries of the members of the Senate of the and does not violate Amendment 48 to the Constitution; (3) Arkansas should not have been Judgment in favor of of Arkansas the State granted State Senators for the against appellant

sums received under authority of Act 274 of 2 of 1973.

The of Act 274 of 1971 and Act 2 of constitutionality 1973, will be considered separately. constitutional,

It is our Act 274 of that opinion we so In so we adherence restate our hold. holding, first, construction; two fundamental rules a of enumerated powers State is not Constitution of this grant act, and but a not an restraining enabling, legislature, exercise its subject may rightfully powers, legislature and restrictions the Constitution limitations only Arkansas; an second, that State of and the the United States will to be constitutional act of the presumed legislature unless there is unconstitutional held the Court to be not be Consitution. the act and the a between clear incompatibility in favor the Act. must be resolved All doubt on the question Martineau, 9 (1927), and cases Bush v. therein cited. of the General Assembly legislators

Compensation V., Section was this State set Article originally After of the State of Arkansas. delineating Constitution contained that Section of the legislators, compensation prohibition: following express shall no or

“And receive they compensation, perquisite whatever, as herein allowance provided.” except amendments, After series of compensation ultimately Constitution. Amend- Amendment to the State fixed by no The Amend- ment 48 contains such express prohibition. ment provides: - - diem allowance The

“Salary mileage shall receive their members of the General hundred) (twelve dollars $1200.00 sum of the salary, annum, the of the House of Speaker per except Representatives, $1350.00 who shall receive his salary dollars) per annum, hundred and (thirteen with such fifty installments; to be in salaries payable equal monthly and in addition to such the members the salary, ($20.00) dollars shall receive twenty is in for each the General Assembly per day day regular session, ($0.05) five cents mile for shall receive per in each mile traveled to and from the returning going most seat over the direct practicable government further, route; and that when said members provided, attend an session of are to the required extroardinary shall receive an addition to General Assembly, they ($6.00) of six dollars herein the sum salary provided, attend, are day they required day at the same rate herein provided.” mileage Ark. cite the of Ashtonv. Ferguson, case Appellees that Act 274 un (1924), for the S.W. proposition Ashton v. We that Ferguson, constitutional. emphasize Amendment under decided prior adoption above constitutional containing prohibition provision of the absence of that in cited. Our prohibition interpretation Gordon, in Amendment 48 stated succinctly Berry 547, 865, 376 (1964): Ark. S.W. 2d 279

“The Ashton case ruled that members of the simply were not entitled to allowances legislature prohibited by the Constitutional in effect at time. provisions Those constitutional have been provisions repealed.” Inasmuch as there is no constitutional prohibition against reimbursement the Act does not granted by violate the Constitution of the State of Arkansas.

We the evidence elicited from Senator Fletcher at the trial level concerning incurring reimbursed his aas expenses capacity legislator during line, interim is border but officers of the State are period cloaked with the lawful, that their actions are presumption correct, faith and in the ex good sincerity purpose ecution their duties. Hogue, Rockfeller v. 85 (1968). have not overcome this Appellees that Senator Fletcher did not ac presumption by showing have reimbursable in excess of tually legitimate expenses amount claimed. However this Court could countenance no claim which to be a sham to evade the con appeared on stitutional limitation compensation.

We hold also Act 2 of the General of 1973 con- However, stitutional as of adopted. provi- application sion the facts in this case does meet with the require- ment of reimbursement allowing ac- only expenditures evidence is incurred. The clear that on tually January 1973, each of the Defendant Senators received a in warrant the amount of for and telephone 1600.00 postage, telegraph $1200.00 $1800.00 for diem and for

expenses; expense, per $1200.00 The voucher for diem ex- contingency expense. per earned, $600.00 before and the voucher for pense paid $1800.00 and and the voucher postage, telephone telegraph for were before these contingency expense paid expenses $1200.00 incurred. With diem, to the we affirm respect per the trial court’s that diem in judgment payment per advance is a fatal defect inasmuch as each Senator did serve for the session and earned the diem. ultimately $600.00

With voucher for respect postage, $1800.00 and the voucher telephone for con- telegraph, we hold that advance of these tingency expense, payment sums is violative of the Constitution of Arkansas, the State of and affirm the rendered the trial judgment court against Defendant Senators for these sums.

Affirmed and reversed in part part. FOGLEMAN, J., J., concurs; disqualified. Hdlt A. Fogleman, I concur Justice, concurring. John result and all of the that majority opinion except portion which be taken advance might imply any payment allowances for and for postage, telephone telegraph is violative of the Constitution “contingency” expense of the State of Arkansas. The does not majority specify exactly which section of the Constitution would be violated an act these This leaves me authorizing payments. without a clear I must understanding infer holding, although section is Amendment 48. contemplated

2Act of 1973 for certain items appropriated moneys $63,000 for the Senate. these expenditure are for Among con- travel for members and tingent expenses, other mis- special cellaneous $10,500 for members, for expenses, postage $10,500 telephone members. Sec- telegraph tion of the act reads as follows: ol the Senate of said General Secretary

That directed issue vouchers hereby eviden- all authorized cing payments Assembly, of expenditures such vouchers issued covering and when of Chairman have been the Senate approved Senate, Auditor of the State Committee Efficiency warrants, and the into vouchers to convert such directed sum funds out is directed to Treasurer pay herein set up. in- vouchers to the If the is saying majority void, of Amendment are and in violation

dividual Senators 48, to the allowances as a because salary, supplement 2, I not then could not disbursed as probably required by for were not disbursement Proper disagree. procedures evidence Vouchers are be issued to followed. to payments Nowhere has the authorized Assembly. authorized sum lump payments issued under Act are for allowances Senators. Vouchers of the Senate. Nowhere has the General expenditures authorized which advances anticipation expenditures have not been made and never be made. may

It was admitted that warrants were received $600.00 for the Senators who is a to this action for party $1800.00 for and for “per- telephone, telegraph postage men- sonal services.” The item of services not personal 2, were, for tioned in Act and if it an anywhere appropriation be a would clear violation of Amendment purpose however, This is because salary supplement. unimportant, these did the disbursement Senators claim that actually for I fall under the which take to “contingency” expenses ap- travel for propriation contingent expenses, special rate, I members and other miscellaneous At any expenses. can find no of these disbursements legislative authority alone, amounts as it was made. For this reason the judgments sustained, it for their must be even recovery though might that, such be said when disbursed without authority, possibly such were a in violation payments salary supplement Amendment 48. and I do

It would seem that it would not be necessary, not think it is into of Act proper, go constitutionality constitutional itself. Courts should not do pass upon are so unless the answers to those questions questions to a determination of the case that it cannot necessary Smith, otherwise be decided. Missouri Co.v. 60 Ark. Ry. Pacific Waterman, 752; Porter v. 77 Ark. 91 S.W. 520; Honea 754; Garretson, 4 S.W. Smith v. 176 Ark. Louis, Federal Bank Land St. 61 S.W. 2d State, 337, v. 472; 245 Ark. 432 S.W. 2d SearcyCounty Satterfield v. 54, 369; Scott, 244 Ark. 424 2d Stephenson, S.W. v. Mobley 163, Ahlert, 236 365 Ark. 2d Romev. S.W. CountyJudge, 844, 231 Ark. 332 S.W. 2d 809. We have said even that where the case can be of without the con disposed determining stitutional it is our to do so Wilson question, (Herman duty Lumber Co. v. 168, 245 Ark. 431 S.W. 2d Hughes, 487); that constitutional are never decided unless questions necessary (Little RockRoad Co. v. 53, 233 Ark. Machinery County, Jackson 342 407); S.W. 2d and that constitutional are not questions decided unless the case cannot be of on other disposed any State, (Bailey 74, 388, v. 229 ground Ark. cert. S.W. 869, denied 358 U.S. 69 S. L. Ct. Ed. 2d 101). Our rule was founded predominant upon language Smith, Missouri Judge Cooley Co. v. quoted Ry. Pacific A of that supra. follows: part quotation case, In therefore, a any where constitutional is question raised, it be though may legitimately presented by record, if the record also yet, some other and presents clear which the court ground upon rest its may judg- ment, and render the thereby constitutional question immaterial case, that course will be adopted, question constitutional will be left for power con- sideration until a case arises which cannot be disposed of without when, it and considering consequently, decision such will upon be unavoidable. question In Board Center, v. Hills Equalization 251 Ark. Evelyn Shopping 1055, 476 S.W. 2d we did not reach constitutional there “in arguments made accord with our rule long-standing that constitutional issues will not be determined unless their determination is essential to case,” disposition citing State, Martin v. 79 Ark. Bell, S.W. 372 and Bell v. Ark. 462 S.W. 2d 837.

A reason for our compelling well abiding by established unnecessary case is the avoiding rule this desirability Further- of government. between confrontations departments that, more, even should though we recognize not reserv- of all sovereign repository powers to one of or constitutionally delegated ed people it also has the two sup- the other obligation departments, should it Constitution. We thát the Arkansas presume port the con- will, evidence to has and in the absence convincing trary. matter, I can

If we must treat only agree in excess of allowances to members of the General Assembly has our constitution their not been prohibited by salaries Gordon, of Amendment 15 in 1928. Berry since the adoption 547, 376 2d 279. I 2 of further that Act not unconstitutional. if it I must also that we could not the act approve a sham to evade constitutional It prohibitions. clearly exercise of the review of statutes proper power judicial down action when it is strike manifestly legislative has not and this court constitution purpose .evading Matthews, 213, 40 hesitated to do so. See v. 184 Ark. Simpson 991; River S.W. 2d Union Carbide & Carbon v. White Corp. Distributors, Inc., 558, 224 275 2d 455. The Ark. S.W. cannot what the constitution do legislature indirectly v. 212 Ark. it from prohibits doing directly. Cragar Thompson, - 178, 180; 205 Dist. 1 v. S.W. 2d Texarkana Forrest Park No. State, 617, In 189 Ark. 74 S.W. 2d 784. this judicial exercising however, we should never that the assume power, legislative branch, an coordinate independent, department govern- ment, will not the constitution in the exercise its uphold We should not will assume that it powers. certainly attempt Furthermore, to evade the Arkansas Constitution. the courts wisdom, no into the ex- have power inquire advisability, of the con- or violative pediency, propriety legislation These are of the stitution. matters for consideration solely ultimate whose legislative department, responsibility is at least as people, great judicial sovereign, 27, 272; Ward v. 198 127 2d branch. Ark. S.W. Albright Bailey, 307, Karston, 421; Hundley, 2d Reedv. v. 206 Ark. 176 S.W. State, 117; v. 208 Ark. 2d 188 S.W. Fugett

Ark. 641; 2d Cookv. Power S.W. 750, Arkansas-Missouri Ark. Corp., 210; Cook, 2d v. S.W. 215 Ark. Longstreth Faubus, Beaumontv. 394 S.W. 2d 478. HALE, GANNAWAY,

Louise Matthews Sué Ellen GANNAWAY, Louise Harris Louise STARK Billy Harold STARK and Sandra HAGUE William GODWIN and Charline Byron Mary GODWIN

Gannaway 511 S.W. 2d 171 74-68 1, 1974 delivered Opinion July Tolson, for Matthews & appellants. Jones, Viltitow, for Huey appellees. Dr. C. E. Chiefjustice. Gannaway, HARRIS, CARLETON in March, died testate 1944.

a resident of Bradley County, Dr. had married twice and was father been Gannaway sons, and Claude two Files Gannaway, Gannaway father of a first and the the second marriage, daughter by

Case Details

Case Name: Jones v. Mears

Court Name: Supreme Court of Arkansas

Date Published: Jun 24, 1974

Citation: 510 S.W.2d 857

Docket Number: 74-49

Court Abbreviation: Ark.