Mears v. Hall

• Decision Date: 03 July 1978
• Docket Number: No. 77-424,77-424
• Citation: 569 S.W.2d 91,263 Ark. 827
• Parties: Roger C. MEARS, Jr., County Judge, Appellant, v. Harold L. HALL, Public Defender, Appellee.
• Court: Arkansas Supreme Court

Page 91

569 S.W.2d 91

263 Ark. 827

Roger C. MEARS, Jr., County Judge, Appellant, v. Harold L. HALL, Public Defender, Appellee.

No. 77-424.

Supreme Court of Arkansas, In Banc.

July 3, 1978.

Rehearing Denied Sept. 11, 1978.

Jack D. Files, County Atty., Little Rock, for appellant.

Lee A. Munson, Pros. Atty. by John Wesley Hall, Jr., Deputy Pros. Atty., Little Rock, for appellee.

FOGLEMAN, Justice.

On June 28, 1977, the two circuit judges having criminal jurisdiction in the Sixth Judicial District of Arkansas, acting under authority of Act 279 of 1975, entered an order in Pulaski Circuit Court case No. CR-75-938 continuing the operation of the existing Public Defender System. This had the effect of leaving Harold Hall in the status of public defender. In this order, the judges also approved a budget for the operation of the public defender's office for the fiscal year 1977-1978. Thereafter, on July 26, 1977, the Quorum Court of Pulaski County passed Ordinance No. 63, making an appropriation for the support of the public defender's office. On August 8, 1977, the Quorum Court of Perry County passed its Ordinance No. 0-46, recognizing the public defender system created by the order entered in Pulaski County by the circuit judges, appropriating $1,750 for its share of the expenses of the public defender, purportedly on the basis of the number of criminal cases handled by the public defender or his staff in each county. In the meantime, the County Judge of Pulaski County had vetoed Ordinance No. 63, but the Quorum Court overrode his veto on August 9, 1977. When salaries of the public defender, deputies and office employees were not paid after the passage of the ordinance, appellee filed his petition for mandamus against appellant as County Judge of Pulaski County to require him to comply with Ordinance No. 63.

In his response appellant contended that the circuit court was without jurisdiction of the petition, because appellee's remedy was by appeal; that Ordinance No. 63 was unconstitutional under Amendment 55 and Art. 4, § 2 and Art. 6, § 4 of the Constitution of Arkansas; and that the action was premature because Act 246 of 1977 requires that the Quorum Court appropriate funds to pay fees to appointed attorneys after the fees have been set by the circuit court order.

The circuit court granted the writ and appellant brings this appeal asserting four points for reversal. We find no reversible error and affirm.

I

Appellant contends that the trial court erred in denying his motion to transfer the case to another division of the Circuit Court of Pulaski County. This motion was based solely on Ark.Stat.Ann. § 22-114 (Repl.1962). Appellant contends that the presiding judge of the division of the court had an interest in the case, because he was one of the two judges sitting as a "Public Defender Commission" which created the office of Public Defender and set the salaries which appellee sought to require appellant to pay. In his argument here, appellant contends that the judge to whom the petition was presented was interested in the case in that he and another judge created the Public Defender's office for the Sixth Judicial District, named Harold Hall as Public Defender, and set the salaries which petitioner sought to require appellant to pay.

Where the presiding judge of a division in which an action is pending is interested in the suit, Ark.Stat.Ann. § 22-114 requires that the suit be transferred to another division of the court. This section and Ark.Stat.Ann. § 22-113 (Repl.1962) tend to carry out the intention of Art. 7, § 20 of the Constitution of Arkansas. Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881. The "interest" which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit. Osborne v. Board of Improvement of Paving Dist. No. 5,, 94 Ark. 563, 128 S.W. 357; Foreman v. Town of Marianna, 43 Ark. 324; Ferrell v. Keel, 103 Ark. 96, 146 S.W. 494; Baker v. Odom, 258 Ark. 826, 529 S.W.2d 138. The circuit judge in this case did not have the interest in the case which would require a transfer of the case simply because an order entered by him was involved or questioned in the case. Such a situation can and does arise in many instances.

II

Appellant argues that the County Court has exclusive original jurisdiction of all matters pertaining to the disbursement of county funds under Art. 7, § 28 of the Arkansas Constitution and that the only remedy available to appellee was by appeal. He relies upon Art. 7, § 28 of the Arkansas Constitution and that the only remedy available to appellee was by appeal. He relies upon Art. 7, § 33 of the constitution, which provides that appeals from all judgments of the county court may be taken to the circuit court under such regulations as may be provided by law. Procedures for such appeals are set out in Ark.Stat.Ann. § 27-2001 (Supp.1977). Basic to this particular argument is appellant's reliance upon holdings that exclusive original jurisdiction of claims against the county is vested in the county court and that the allowance of claims is a judicial act performed by the county court, not the county judge. Campbell v. Little Rock School Dist., 222 Ark. 615, 262 S.W.2d 267; Watson v. Union County, 193 Ark. 559, 101 S.W.2d 791; Logan County v. Anderson, 202 Ark. 244, 150 S.W.2d 197; Farmer v. Franklin County, 179 Ark. 373, 16 S.W.2d 10.

This is no longer the case. One of the provisions of § 3 of Amendment 55 to the Arkansas Constitution is that "(t)he County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall . . . authorize and approve disbursement of all appropriated county funds." The language of Art. 7, § 28 provided that the county court should have exclusive original jurisdiction in all matters relating to the disbursement of money for county purposes.

It is clear to us that the quoted provision in § 3 of Amendment 55 is in irreconcilable conflict with the provision of Art. 7, § 28 relating to disbursement of county funds and that jurisdiction of the disbursement of county funds is not now vested in the county court and that the county judge does not act judicially in passing upon claims against the county. Although we find no ambiguity in § 3 of Amendment 55 and have no doubt about its intent, our view is supported by the provisions of Act 742 of 1977, in which § 78(B)(2) provides that the powers of the county judge enumerated in § 3 of Amendment 55 shall be performed by the county judge in an executive capacity. That act was passed by the General Assembly in implementation of Amendment 55. Legislative interpretation of constitutional provisions is never binding on the courts, but, if there is any doubt or ambiguity, it is persuasive and entitled to some consideration. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380. It is more significant when most of the members of the General Assembly of 1973 who proposed Amendment 55 voted favorably on Act 742 in 1977. State v. Sorrells, 15 Ark. 664, 675; Sumpter v. Duffie, 80 Ark. 369, 97 S.W. 435.

Appellant argues that, even so, the county judge does not act merely ministerially. Act 742, § 78(B)(2) itself provides that, before approving vouchers for payment of county funds, the county judge must determine that there is a balance of funds in the pertinent appropriation, that the expenditure is in compliance with the purposes for which the funds are appropriated, that all state purchasing laws and other state laws or ordinances of the quorum court are complied with in the expenditure and that the goods or services for which expenditure is to be made have been rendered and the payment has been incurred in a lawful manner and is owed by the county. There is also a provision that no money shall be paid out of the treasury until the same shall have been appropriated by law and then only in accordance with such appropriation. This act also provides that appeals from the performance or non-performance of any administrative act to be performed by the county judge, acting in his capacity as chief executive officer of the county may be taken to the court of competent jurisdiction as now provided by law. See Act 742, § 83(2).

It is on the basis of the above provisions that appellant contends that appeal, not mandamus, is the proper remedy. Of course, we have long held that the discretion of an officer in the executive branch of the government cannot be controlled by mandamus. Hardin v. Cassinelli, 204 Ark. 1016, 166 S.W.2d 258. See also, Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132. It will lie to require such an official to act, or to exercise his discretion. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W.2d 10; Satterfield v. Fewell, 202 Ark. 67, 149 S.W.2d 949; Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S.W. 454. See also, Robertson v. Derrick, 113 Ark. 40, 166 S.W. 936; Jackson v. Collins, 193 Ark. 737, 102 S.W.2d 548.

The discretion of the county judge in the matter is rather limited. In the matter at hand, the county judge under § 3, Amendment 55 had both the power and the duty to authorize and approve disbursement of appropriated county funds. He also had the power and duty to administer the ordinances of the county. If Ordinance 63 and the appropriation made by it were legally proper, and we hold that they were, the county judge had a duty to perform. It appears from the evidence in this case that appellant did not intend to perform this duty. He has contended that the ordinance was unconstitutional and has been ever since its passage, as shown by his veto message. He testified that he would not pay claims under the ordinance until he consulted with his attorneys in regard to the constitutionality of their payment and admitted that he had told the members of...