Munson v. Abbott

• Decision Date: 30 June 1980
• Docket Number: No. 79-294,79-294
• Citation: 269 Ark. 441,602 S.W.2d 649
• Parties: Lee A. MUNSON, Appellant/Cross-Appellee, v. Jane ABBOTT, Robert Adams, Sr., Paul D. Kelly and Zoe Allen Vogler, Appellees/Cross-Appellants.
• Court: Arkansas Supreme Court

Page 649

602 S.W.2d 649

269 Ark. 441

Lee A. MUNSON, Appellant/Cross-Appellee, v. Jane ABBOTT, Robert Adams, Sr., Paul D. Kelly and Zoe Allen Vogler, Appellees/Cross-Appellants.

No. 79-294.

Supreme Court of Arkansas.

June 30, 1980.

Rehearing Denied Oct. 2, 1980.

House, Holmes & Jewell by Philip K. Lyon and Daryl G. Raney, Little Rock, for appellant/cross-appellee.

Youngdahl, Larrison & Agee, Lynn-Marie Crider, Little Rock, for appellees/cross-appellants.

WILLIAM I. PREWETT, Special Justice.

On March 20, 1978, appellees filed a taxpayers' suit seeking an accounting and restitution of expense funds paid to Lee Munson as Prosecuting Attorney for the Sixth Judicial District of Arkansas. Voluminous pleadings and two days of testimony resulted in a decision by Chancellor Weisenberger denying an accounting, finding the appellant had failed to properly explain certain items of expense and awarding judgment to Pulaski County for $3964.84 and costs of $81.00. An attorneys' fee of one-third of this was awarded to counsel for appellees. The judgment must be reduced to $335.70 and costs.

Two types of expense accounts are involved, an expense allowance of $2400.00 per year, payable by the State in equal monthly installments without itemization and an office contingency fund appropriated and paid pursuant to Ark.Stats.Ann. 24-113 (1962 Repl.).

Appellees sought repayment of expenses for Perry County work which were charged to Pulaski County and further alleged some expense claims submitted were fraudulent in 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 the three years statute of limitation applies.

Appellant filed claims for expenses of the office to be paid from Pulaski County monies appropriated for the office contingency expense fund, depositing the $200.00 a month received from the State for expenses into his personal bank account. Accurate expense records were not kept and supporting documentation for expenses was minimal.

Judge Weisenberger refused to order a complete accounting but did find the burden of proof shifted to the appellant to prove the $200.00 State expense account was expended for costs of the office and not retained as additional salary. Depositing this expense payment into his personal account and the absence of proof of expenses resulted in a finding it was used for personal items rather than expenses of the office. After proof by appellees of gasoline purchases outside the appellant's Judicial District and for recreational vehicles the trial Court required Appellant to explain these charges and their relationship as expenses of the office. Justification, if fairly plausible, was accepted by the trial Court and only those items for which no explanation was given were found to be improper and restitution ordered. These were:

"(a) Items where defendant had no apparent recollection of doing business in those areas outside the District:

                CLAIM NO.  DATE      LOCATION OF PURCHASE   AMOUNT  PLAINTIFFS' NUMBER
                ---------  --------  ---------------------  ------  ------------------
                75-4741    5/10/75   Gulf-Search, Ark.      $ 9.12         415
                75-6563    7/27/75   Gulf-Conway, Ark.       11.00         474
                75-3487    8/1/75    Sunoco-Paron, Ark.       9.00         477
                75-9164    8/31/75   Gulf-Brinkley, Ark.      6.75         501
                76-814     10/1/75   Sunoco-Paron, Ark.      11.50         533
                76-814     10/10/75  Sunoco-Paron, Ark.      11.25         541
                76-814     10/20/75  Sunoco-Paron, Ark.      10.00         553
                76-813     12/15/75  Sunoco-Conway, Ark.      8.25         606
                75-1205    12/20/75  Sunoco-Harrison, Ark.    9.40         612
                76-3024    3/10/76   Sunoco-Paron, Ark.      10.35         694
                76-4834    4/16/76   Sunoco-Conway, Ark.     10.75         731
                76-8642    7/29/76   Sunoco-Conway, Ark.     11.00         818
                

                (b) Items of Purchase for oversize vehicles
                76-7088  3/13/76  Gulf-Rodney Parham      $38.25  697
                76-7088  3/14/76  Gulf-Brookhaven, Miss.   37.10  698
                76-7088  3/18/76  Gulf-Hammond, La.        27.00  699
                

(c) Certain other items purchased outside Pulaski County for which the evidence does not reveal a satisfactory explanation:

75-4598 4/4/75 Gulf-Perryville, Ark. 8.25 393

75-4968 5/18/75 Gulf-Benton, Ark. 11.47 417

75-5727 7/9/75 Sunoco-Atkins, Ark. 5.50 460

75-9164 7/31/75 Gulf-Perryville, Ark. 11.50 476

75-9164 8/13/75 Gulf-Perryville, Ark. 12.25 484

76-843 11/7/75 Gulf-Sheridan, Ark. 16.60 571

76-843 11/11/75 Gulf-Hampton, Ark. 1.90 575

75-769 12/7/75 Gulf-Stuttgart, Ark. 10.30 597

76-1205 1/12/76 Sunoco-Humphrey, Ark. 1.10 634

76-4808 4/2/76 Gulf-Perryville, Ark. 6.91 718

76-7088 5/12/76 Gulf-Fordyce, Ark. 10.85 728

76-7625 7/16/76 Gulf-Perryville, Ark. 10.35 805"

The trial Court also found certain Perry County office expenses totaling $229.15 were improperly charged to Pulaski County and must be reimbursed. Restitution to Pulaski County was ordered for $3400.00 received from the State pursuant to Act 1218, for $229.15 Perry County expenses charged to Pulaski County and for $335.70 expenses for which no reasonable explanation was given by appellant. Act 1218 of 1975, Section 2, quoted in full, provides:

"The Prosecuting Attorney for the Sixth Judicial District of the State of Arkansas shall be entitled to an expense allowance of TWENTY-FOUR HUNDRED DOLLARS ($2400.00) per annum, payable in equal monthly installments."

The Legislature has authorized lump sum expenses in this and in similar legislation. For example, Act 209 of 1977 (Ark.Stats.Ann. 22-141, 1962 Repl.) authorizes payment of a monthly expense of $300.00 to judges of the courts of general jurisdiction or actual expenses at the election of the judge. Legislative authority for reasonable lump sum expense payments is clear. Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881 (1965), reiterated the well understood principle that our Constitution is a limitation of powers, not a grant. Thus, unless prohibited by our Constitution or by federal law, the Legislature has exclusive control of the expenditure of public money. Where the Legislature has established payment of expenses by paying a lump sum without itemization, the Court has no power to inquire into the wisdom, amount, necessity or propriety of the legislative decision. That branch of government is responsible only to the people so long as its action is not in violation of or a sham for the purpose of evading the Constitution. Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857 (1974); Reed v. Hundley, 208 Ark. 924, 925, 188 S.W.2d 117 (1945); Act 1218 provided a lump sum expense payment to the Prosecuting Attorney; it shall be paid "in equal monthly installments" and there is no requirement of itemization or proof. While monthly expense installments are generally valid, a different legislative intent is found where the legislation authorizes payment of reasonable expenses "not to exceed" a certain sum. Laman v. Smith, 252 Ark. 290, 478 S.W.2d 741 (1972). No similar language is in Act 1218 and this Court is without authority to add to the clear language of the Act. Lump sum expense appropriations are not inherently improper or illegal. See State v. Thomason, 142 Tenn. 527, 221 S.W. 491 (1920). State v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921). The Legislature, if it chooses, may estimate expenses in advance and determine a reasonable and proper amount. McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 (1915). Ark. Constitution Amendment 21 specifically empowers the Legislature with responsibility to establish the "amount and method" of payment of salaries of all prosecuting attorneys. There is no limitation. Prior cases cited by appellees on officer expenses involved constitutional maximums on salary and thus presented a different question. In the absence of proof the monies were not used as expenses, the legislative authorization cannot be disregarded. As stated in Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279, 289 (1964), rehearing opinion,

". . . upon a proper showing by the plaintiff there might be a recovery of funds to which the recipient was not entitled. At the trial the appellant had the opportunity to prove that the appellees had received public money in excess of their actual public relations expense. The appellant chose not to take advantage of the opportunity that was presented."

Appellees had the opportunity and the burden to prove the monies received were not for expenses. White v. Williams, 192 Ark. 41, 89 S.W.2d 927 (1936). Officers of the state

"are cloaked with the presumption that their actions are lawful, correct and in good faith and sincerity of purpose in the exercise of their duties. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968). Appellees have not overcome this presumption by showing that Senator Fletcher did not actually have legitimate reimbursable expenses in excess of the amount claimed." Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857, 860 (1974).

To sustain the order to repay the monthly expense installment, appellees cite Laman v. Smith, 252 Ark. 290, 478 S.W.2d 741 (1972). The case does not support appellees' position. In Laman, the court declared an ordinance appropriating public relations expense money to be valid and not in violation of the $5000.00 constitutional salary maximum for certain city officials, although it authorized officials to draw monthly warrants "in an amount not to exceed one-twelfth" of the amount appropriated. While finding the ordinance valid, the court pointed out that one-twelfth could not be drawn each month because the ordinance stated "not to exceed" one-twelfth. There is a vast difference where the words "not to exceed" are used; there is also a vast difference where a constitutional salary maximum is established. Neither situation is present in this case. Of course, payment of expenses in a lump sum clearly in excess of any expense that could reasonably be incurred or...