*1 ADAMS, ABBOTT, Robert A. Lee MUNSON Jane Allen VOGLER Sr., KELLY and Zoe Paul D. 602 S.W. of Arkansas Court
Supreme Opinion delivered June denied October Rehearing *3 Daryl G. Lyon K. Philip by:
House, Jewell, & Holmes appellee. and cross appellant Raney, for for Agee, & Larrison Youngdahl, Crider of Lynn-Marie appellants. cross appellees March On Special Prewett, I. William Justice. accounting seeking suit taxpayers’ filed a
1978, appellees Lee Munson paid to funds and restitution Arkan- District the Sixth Attorney Prosecuting Judicial sas. Voluminous pleadings and days two testimony resulted in a decision Chancellor Weisenberger denying an accounting, finding had failed properly explain certain items of expense and awarding judgment Pulaski County for $3964.84 and costs of $81.00. An at- torneys’ fee of one-third of this was awarded to counsel for appellees. The judgment must be reduced costs.
Two types of expense involved, accounts are an expense allowance year, per payable by the in equal State monthly installments without itemization and an office con- tingency fund appropriated and paid pursuant to Ark. Stat. Ann. (1962 Repl.). § 24-113
Appellee sought repayment of expenses for Perry Coun- ty work which were charged to Pulaski County and further alleged some expense claims submitted were fradulent law. Appellant denied any fraud or wrong and urges the Chancery Court is without jurisdiction to review the decisions of the County Court approving expense claims and years three of statute of applies. limitation
Appellant filed claims for expenses of the office to be paid from Pulaski County appropriated monies office *4 contingency fund, expense depositing a month received from the State for expenses personal his into bank account. Accurate expense records were not kept and sup- porting documentation expenses was minimal.
Judge Weisenberger refused to order a complete ac- counting but did find the burden proof shifted to the prove the $200.00 State account was ex- pended for costs of the office and not retained as additional salary. Depositing this expense payment personal into his ac- count and the proof absence of resulted in a find- ing it was used personal items rather than expenses of the office. proof After by appellees gasoline purchases outside the appellant’s District and for recreational vehicles Judicial the trial Court required Appellant to explain charges these and their relationship Justification, office. if fairly plausible, was accepted by the trial Court and only
445 were found given explanation no which items for those were: These ordered. and restitution improper recollection apparent had no defendant where “(a) Items the District: outside areas in those doing business PLAINTIFFS’ AMOUNT OF LOCATION DATE CLAIM NUMBER PURCHASE NO. 415 Gulf-Search, $ Ark. 9.12 75-4741 5/10/75 11.00 474 Gulf-Conway, Ark. 75-6563 7/27/75 Sonoco-Paron, 477 Ark. 9.00 75-3487 8/1/75 501 Gulf-Brinkley, Ark. 6.75 8/31/75 75-9164 Sunoco-Paron, 533 Ark. 11.50 76-814 10/1/75 Sunoco-Paron, 541 Ark. 11.25 76-814 10/10/75 Sunoco-Paron, 10.00 553 Ark. 76-814 10/20/75 606 Sunoco-Conway, Ark. 8.25 76-813 12/15/71 612 Sunoco-Harrison, Ark. 9-40 75-1205 12/20/75 Sunoco-Paron, Ark. 694 10.35 76-3024 3/10/76 Sunoco-Conway, 731 Ark. 10.75 76-4834 4/16/76 818 Sunoco-Conway, 11.00 Ark. 76-8642 7/29/76 vehicles: for oversize (b) Items of Purchase Gulf-Rodney Parham 76-7088 3/13/76 C\ s! Gulf-Brookhaven, Miss. 37.10 76-7088 3/14/76 0\ CO Gulf-Hammond, La. 27.00 76-7088 3/18/76 G\ County for Pulaski purchased outside (c) items other Certain satisfactory explanation: reveal does not which the evidence Gulf-Perryville, Ark. 8.25 393 75-4598 4/4/75 Gulf-Benton, 11.47 Ark. 5/18/75 75-4968 Sunoco-Atkins, Ark. 5.50 75-5727 7/9/75 Gulf-Perryville, Ark. 11.50 75-9164 7/31/75 Gulf-Perryville, 12.25 75-9164 8/13/75 Gulf-Sheridan, 16.60 76-843 11/7/75 Gulf-Hampton, Ark. 1.90 76-843 11/11/75 Gulf-Stuttgart, Ark. 10.30 12/7/75 75-769 Sunco-Humphrey, 1.10 76-1205 1/12/76 Gulf-Perryville, Ark. 6.91 4/2/76 *5 Gulf-Fordyce, Ark. 728 10.85 76-7088 5/12/76 Gulf-Perryville, Ark. 805” 10.35 7/16/76 office County Perry found certain Court also trial to charged were totaling improperly $229.15 expenses 446 County and
Pulaski must be reimbursed. Restitution to County was ordered for $3400.00 Pulaski received from the 1218, pursuant County State to Act Perry $229.15 ex- penses charged County and for expenses Pulaski explanation given by appellant. for which no reasonable 1975, 2, full, Act 1218 of quote provides: Section Attorney “The Prosecuting Sixth Judicial District of the State of be entitled to an Arkansas shall expense allowance of TWENTY-FOUR HUNDRED ($2400.00) annum, per payable DOLLARS in equal monthly installments.” Legislature has authorized lump expenses sum this
and in similar legislation. example, (Ark. For Act of 209 1977 22-141, Stat. Ann. Repl.) payment authorizes § of a 1962 monthly expense of to judges general courts of jurisdiction or actual at the election the judge. Legislative authority for lump expense reasonable sum payments Cockrill, is clear. Black 367, v. 239 389 (1965), reiterated the well understood principle our Constitution powers, Thus, limitation a grant. un- less prohibited by our law, Constitution or federal Legislature has exclusive expenditure control of public money. Legislature Where the has payment established of ex- penses by paying lump itemization, sum without the Court power has no inquire wisdom, amount, into necessity propriety or of the legislative decision. That govern- branch of ment is responsible only to the people long so action its not in violation or a sham for the purpose evading Mears, 825, Constitution. v. 2d 510 S.W. Jones (1974); Hundley, Reed 208 Ark. (1945); provided Act 1218 lump sum payment to the Prosecuting Attorney; it shall “in equal monthly installments” and there requirement is no of itemization or proof. monthly While expense installments are generally valid, a legislative different intent legisla- is found where the tion authorizes payment of reasonable to ex- “not ceed” a Smith, certain sum. Laman v. (1972). No similar language is in Act
Court is authority without add to the clear language
447 inherently are not appropriations Lump sum Act. 527, 221 Thomason, 142 Tenn. State v. See illegal. or improper 568, 184 S.W. Reeves,44 S.D. v. 993 (1919); State S.W. 491 chooses, may estimate if it (1921). The Legislature, amount. proper and reasonable and determine in advance (1915). Ark. 487, Handlin, N.W. S.D. 361 v. McCoy 153 35 empowers 21 specifically Amendment Constitution and the “amount to establish responsibility with Legislature attorneys. prosecuting all salaries to payment method” of on of- by appellees cited Prior cases no limitation. There is salary máximums on constitutional involved ficer In the question. absence a different presented and thus expenses, the legislative used were not the monies proof Berry v. in As stated disregarded. cannot be authorization 279, (1964), rehearing 547, 2d Gordon, S.W. Ark. 289 376 237 opinion, might there plaintiff showing proper . upon
“. . en- was not recipient which funds to recovery of abe opportunity had the appellant trial At the titled. money public had received appellees that prove not chose expense. actual of their excess that was opportunity advantage to take presented.” prove burden opportunity had
Appellees Williams, v. expenses. White 192 were not received monies the state (1936). 2d Officers 41, S.W. 927 Ark. 89 their are with the that actions presumption “are cloaked lawful, sincerity purpose good faith correct 224 Hogue, v. their duties. the exercise of Rockfeller (1968). not Appellees have 1029, by showing Senator presumption overcome actually legitimate not have reimbursable Fletcher did claimed.” excess of the amount expenses in Jones Mears, (1974). repay monthly expense install- To sustain order to Smith, ment, Laman v. appellees cite (1972). support appellees’ position. case does Laman,
In declared ordinance appropriating the court
public expense money relations to be valid and not viola- *7 salary maximum for cer- tion of the constitutional officials, it draw city although tain authorized officials to monthly warrants “in an amount not to exceed one-twelfth” finding the While the ordinance val- appropriated. of amount id, the not drawn pointed court out one-twelfth could be each the stated “not to exceed” month because ordinance There difference where the words “not one-twelfth. is vast used; where a to exceed” are there is also a vast difference salary maximum situa- constitutional is established. Neither course, present payment tion is this case. Of of lump clearly any expense sum of that could excess reasonably anticipated may be incurred withstand or not judicial scrutiny. action, An years applies. three limitations statute of one, money paid through or obtained
such as this to recover an action mistake, corruption, in the fraud or absence of contract, and must writing, upon implied founded State, years. three Use commenced within be Benefit of (1939); 2d 612 County v.Jones, Garland (1942); Allen, 818, 164 Baker v. 2d 1004 Ward 204 Ark. (1952); Ark. Ann. Farrell, Stat. (1962 Repl.). § 37-206 (1962 Repl.), Ann. the
By Stat. § 24-113 fund the contingent expense of- Legislature established Attorney: Prosecuting fice of the “The prosecuting attorney judicial of each circuit shall be allowed a contingent expense of his office including telephone, telegraph, postage, printing, supplies office rent, and equipment, office stationery, ex- traveling pense, special service, operation automobiles, of which, such other within the discretion of the prosecuting attorney, may a proper expense the of- fice, and also including necessary expense in connection any with proper investigation any incident to criminal law any violation or trials grand jury, any before or within circuit, court said judicial within coming duties of his office.” required (1962 Repl.) Ann.
Ark. Stat. § “by vouch- paid sums to be specific appropriate Counties to by Attorney and allowed Prosecuting signed ers acts, . these . .”. Pursuant County as claims Court County by the approved which were claims filed appellant County Perry funds. appropriated from paid Court ordered County were by Pulaski paid total, except $9-15 all this County. Of to Pulaski reimbursed years prior than three more to the had been and would be barred Complaint filing clearly However, $229-15 entire sum limitations. Prosecuting proper expenses payment office the con- county each from Attorney. appropriations expense as the and such fund for “office” tingent expense *8 “discretion” within his reasonable Attorney, Prosecuting added) (emphasis the expense of proper finds to “a be office" in the Act to Finding nothing the fund. may be from by county, judg- the the separation of mandate the a requirement Whether such must reversed. ment for this Court. Legislature, not this is a matter the would be wise questions jurisdiction Chancery Court Appellant expenses approved by County long to review the Court. It has Court, recognized County passing been that the in a claim on it, in presented judicial capacity. Accordingly, acts the remedy appeal. County As stated in Arkansas Association of Green, 438, 672, v. Judges (1960), Ark. S.W. 2d 232 677 338 the agree Chancery “We with Court had no jurisdiction repayment already to order of claims (and In allowed. the absence of fraud we think no fraud here) the remedy by was shown the Cir- appeal to cuit Court.” case,
In the Green the Court recognized illegal an exaction as rule, 16, an exception referring to the to Article Section of 13 the Arkansas Constitution.
“Any any city county, citizen may or town institute interested, in himself and all suit behalf of others protect inhabitants thereof against the enforcement any illegal exaction whatever.” jurisdiction equit- has held to confer provision This exaction, defined illegal in the of an event remedies able (1974) McDonald, S.W. Mackeyv. by law or is con- not authorized that either is any exaction Mears, v. squarely faced issue was trary to law. This Tedford (1975) the Court stated: 2d 1 when jurisdiction has Chancery Court “We hold that by all and restitution accounting an require this case to provisions funds under county drawing officers the invalidated acts.” 526 Chancery State that it the law of this
Accordingly, exac- repayment illegal of an to order jurisdiction Court has faith and has been good where the “exaction” is tion even Farrell, 221 County Court. See also Ward approved ex- (1952). judge The trial found by appellant to required explanation totaling $335.70 penses At- Prosecuting expenses of the office of justify them as payments explanation, torney. In the of such absence by law and thus authorized constitute an exaction not would prima facie show- appellees After made illegal an exaction. the duties of was not related to ing particular expense office, explanation properly required the trial Court In change This did not burden. appellant. these items facie prima plausible explanation, some absence *9 finding and the appellees’ supported met showing burden and for made the District expenditures outside Judicial expenses. This proper not office recreational vehicles were the need for public the evidence and finding supported officials, who must be public accountability integrity and impropriety. of appearance watchful to even the ever avoid the findings against are not Where the Chancellor’s evidence, will af- reviewing Court preponderance of McGowan, firm. Minton v. contrary to the Chancellor are not
(1974). findings The of the judgment and we affirm the evidence preponderance of County. to Pulaski repayment $335.70 ordering (I960 Repl.), authority Ark. Stat. Ann. 84-4601 On § attorneys for attorneys fees to trial Court awarded in which only litigation applies Act to appellees. This to or return to refund city or town any county, court “orders . fees Attorneys . exacted. money illegally taxpayers Act is clear language of awarded as cannot be Bahil v. wording. its beyond plain extended cannot be (1979). Scribner, appellant should be argue appeal, appellees By cross company expense for all oil (explain) account to required expense separate personal failure to While the payments. not a sufficient basis practice, this is questionable receipts is at the direc- to or expenses paid of all accounting to order this support do not appellees cited appellant. tion of Cases question representation also Appellees contention. attorneys. Early by deputy prosecuting time limits on the placed specific the trial Court litigation, attorneys represen- could devote deputy prosecuting which part on this could Work case appellant. tation of (1962 Repl.). Ann. Obvious- their duties. Stat. § totally separate of- ly, any attorney to his impossible it is for possible time. of the conflict time from Because ficial his “off’ interest, procedure would have of time and better prosecuting full at- serving deputy those as time prohibit attorneys torneys serving appellant. from also However, The any appeal was not prejudicial. error cross must be dismissed. modified to award the judgment against appellant trial plus Court. In all
sum of costs it respects, other is reversed dismissed.
Fogleman, C.J., part. dissents
Mays, J., not participating. Justice, dissenting. ques- A. Chief Fogleman, John propriety requiring allowances without tion any accounting itemization or is not for the courts. However be, may provision unwise we think such matter is one legislative Apparently we have determination. considered *10 cases, except to be in legislative discretion absolute such where the allowance has used evade constitutional limitations on the amount of compensation be public official. No such is v. limitation involved here. Tedford Mears, 450, 1, Ark. a case where such a limitation was The involved. acts involved were held to un- constitutional as applied administered Coun- Pulaski ty. They Thus, were held to be constitutional as adopted. clearly falls into that category of cases controlled Tedford (cid:127) salary existence of constitutional limitations. It is not authority for permitting chancery a taxpayer action when, here, remedy as there was an adequate by appeal. Green, Arkansas CountyJudges 438, Association v. 672, S.W. 2d case, does not that authority. afford In that we considered the declaratory action as one for judgment. The closing paragraph of the opinion clearly shows that the only prospective. decision was We said: Since, stated, we petition before treat the as one declaratory for a and in judgment, view of what we have said, it already appropriate for the Chancellor to enjoin the filing Association from claims and the Judge allowing from the same. are These matters involv- ing judicial procedure and should be decided on the peculiar facts of each case. trial court did have authority decree, a declaratory enter and it should so, have done opinion, accordance with thereby at setting present rest controversy. Therefore the case entry is remanded for the a declaratory of such decree.
This case cannot be converted declaratory into a judgment action.
Chancery McDonald, court jurisdiction Mackey 978, was sustained on the basis prevention of misapplication of funds. Again, we treated ac- tion as for declaratory one judgment. Farrell,
Ward v. readily distinguishable. part For the most injunc action involved tive relief. The chancellor recovery dismissed the action for certain payments guise “expenses” which enabled him to draw more than salary. his authorized county *11 as Road drawn Ex-officio that he had claimed judge a by County, as authorized Greene Commissioner expenses had been for these appropriation act. No legislative by Ap- the act. required and made years involved. subsequent for the made were propriations only made was of the constitution Art. Reference to § 13 authority to the exclusive br- the contention that answer to Department. Auditorial in the State was vested ing action years action as to chancery court court This sustained by three-year was prior recovery barred to because to chancery We court as of limitations. sustained statute an years there had been expenses for after because these years by quorum court. for each of those appropriation allow- for as to relief was called injunctive No ex- remanded, claimed insofar as the The case was ance. concerned, only county judge op- penses give were to acceptance as Ex-officio portunity justify his appropriation which no had Commissioner Road county in the pointed opinion made. It was out claim, except his where his sal- judge pass could not on own and his actions ary was fixed law involved no exercise discretion. finding made a clear and distinct
The chancellor fraud. His include the findings that there no follow- case ing: fraud, guilty
It that defendant was contended is Certainly defendant was actual constructive. both Some reference will be made to his keeper. record poor appears In addition there no hereinafter. bank accounts this, training, his official considering logical excuse help. and office position briefs, very thorough reading studying
After and evidence this law pondering authorities weight of the evidence greater find can not court fraud. The carelessness guilty that defendant by the evidence revealed keeping record inefficient — of fraud actual or con- finding justify sufficient structive. [***]
In the requirement absence fraud or the that a show- ing be made that the expenses were not collected as a sub- terfuge limitations, to evade salary constitutional chancery simply jurisdiction court had no repay- order the *12 ment of the which had been after allowance the County Court of County Pulaski from which no appeal taken, had simply after the passage many because months justify particular expen- could not ditures due to lack of recollection.
Perhaps appellant penalty should suffer some ming- ling his personal allowances with his funds and for sloppy procedures. Even if he was not called upon account allowances, legislative for the the relationship of actual ex- penses to those allowances certainly would pertinent legislative determination of their adequacy. But it is not the function courts to render judgments such a case for negligence, imprudence, or even recklessness'. spite my
In reservations about the of a require- lack ment accounting, for an I would reverse the decree and dis- miss the Perhaps, case, action. it is an equity because appellant should bear costs.
William
FOUNTAIN
STATE of Arkansas
J.
CR 80-114
Supreme Court of Arkansas Opinion delivered June