Beaumont v. Adkisson , 267 Ark. 511 ( 1980 )

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.

Adkisson argues in his response that Act 629 is not discriminatory, that he can order a county judge to pay money where the administration of justice is involved, that Act 629 is permissible local legislation because it deals with the administration of justice, and that the legislature can delegate to a judicial officer the right to set, within limits, a salary.

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 Amendment 14 to the Arkansas Constitution, which reads: “The General Assembly shall not pass any local or special acts. . . .’’ Act 629 applies only to the “Fourth Division Circuit of the Sixth Judicial Circuit;’’ the Act does not apply to the other four circuit judges in the Sixth Judicial Circuit. There are five circuit judges in the Sixth Judicial Circuit. Ark. Stat. Ann. § 22-365(f) (Repl. 1962). We have since declared that there is no longer any distinction among divisions. All circuit judges have equal authority and responsibility. See Harkness. v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979).

The only way that Act 629 could be legal is if it were held to be an act relating generally to all the circuit courts in the Sixth Circuit and it is determined to be essential to the administration of justice. Cf. Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905) (act abolishing judicial district not unconstitutional). In the case of Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932), we upheld an act which created a separate chancery clerk for Pulaski County. We reviewed the reasons that the chancery court of Pulaski County was different, in a class to itself, from other chancery courts and held that the classification by the legislature was not unreasonable or arbitrary. In the case of McLellan v. Pledger, 209 Ark. 159, 189 S.W.2d 789 (1945),we held thatasalary act for the court resporter of the Fourth Chancery District did not violate Amendment 14 to the Arkansas Constitution. The act was essential to the administration of justice. Although the court named served a limited territory, the act was general in its operation.

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 Amendment 14. The Act is an example of the very sort of legislation that Amendment 14 was designed to prevent.

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 set a salary. We have held before that circuit judges cannot set salaries. Mears v. Adkisson, 262 Ark. 636, 560 S.W. 2d 222 (1978).

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 ARK. CONST., art V., § 29, which requires an appropriation by the legislature before money can be withdrawn from the state treasury. The distinction between the Hooker case and the case before us is that in Hooker the legislature had appropriated the money to pay the salaries which were authorized and set a limit on how much could be paid. In this case there has been no appropriation by the General Assembly. In effect, the court is legislating the salaries, as evidenced by its order.

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 county judge could not pay the funds unless they were appropriated. It would require an illegal act on his part. That was not the case before Amendment 55. Therefore, it was improper to consider him in contempt of court.

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 increased to and set at $16,500.00 per year, beginning October 1, 1979, payable on the same periodic pay periods now used for county employees; and Pulaski County, Arkansas, the county judge thereof and all appropriate county officers are hereby ORDERED and DIRECTED to forthwith pay the salaries of the said Probation Officer/Bailiff and Secretary/Case Coordinator as herein directed, beginning October 1, 1979.

/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/ Case Coordinator who will serve at the will of the Judge.”

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]