Refunding Board of Arkansas v. National Refining Company

• Decision Date: 23 December 1935
• Docket Number: 4-4196
• Citation: 89 S.W.2d 917,191 Ark. 1080
• Parties: REFUNDING BOARD OF ARKANSAS v. NATIONAL REFINING COMPANY
• Court: Arkansas Supreme Court

89 S.W.2d 917

191 Ark. 1080

REFUNDING BOARD OF ARKANSAS v. NATIONAL REFINING COMPANY

No. 4-4196

Supreme Court of Arkansas

December 23, 1935

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; reversed.

Mandamus proceeding by National Refining Company against the Refunding Board of Arkansas. From an adverse judgment, respondent has appealed.

Case reversed.

Carl E. Bailey, Attorney General, Walter L. Pope and Leffel Gentry, for appellants.

Isgrig & Robinson, for appellee.

OPINION

SMITH, J.

Appellee filed a petition in the Pulaski Circuit Court praying that a writ of mandamus be issued requiring the State Refunding Board to refund its claim against the State Highway Commission. Attached to the complaint were exhibits showing that, pursuant to act No. 11 of the Extraordinary Session of the 1934 General Assembly (Special Acts of 1934, page 28) the claim had been referred to the Highway Audit Commission which on October 6, 1934, had reported to the Refunding Board that "the same is hereby approved and the State Refunding Board is hereby requested to refund the same according to law." It was alleged that the claim having been approved by the Audit Commission, the Refunding Board had only the ministerial duty to perform of ordering it refunded as required by act No. 11, above referred to.

A response was filed by the Refunding Board which admitted all of the allegations of fact but alleged that "the petitioner's claim has not been refunded for the reason that the petitioner has refused and does now refuse to permit its books and records regarding said claim to be investigated and audited as provided by the statutes of this State in order that the validity of such claim might be determined."

A demurrer to this response was sustained, and, the Refunding Board declining to plead further, it was ordered that the claim be refunded as provided by law.

The controlling question in this case is whether the duty of the Refunding Board is merely ministerial. The petitioner admits that, unless the board's duties are ministerial, the writ will not be awarded. The concession is well made. The law of the subject is well defined and has often been stated. The leading case on the subject appears to be that of Kendall v. United States, 37 U.S. 524, 12 Peters 524, 9 L.Ed. 1181, which differentiates ministerial from executive duties. The leading case on the subject in this State is that of Jobe v. Urquhart, 102 Ark. 470, 143 S.W. 121, and both are to the effect that when an executive officer in the discharge of his official duty has a discretion as to the action he should take, this discretion cannot be controlled by mandamus. "But there is a marked distinction everywhere recognized between the exercise of discretion and a ministerial act the performance of which is a, plain and positive duty enjoined by law; and, when essential to the enjoyment or completion of some public or private right, and no other adequate specific remedy is provided, the authorities concur in holding that a mandamus will lie, affording a prompt and efficient remedy, at the instance of any person interested to compel its performance." Danley v. Whiteley, 14 Ark. 687; Jobe v. Caldwell, 93 Ark. 503, 125 S.W. 423.

The question presented must be decided by a consideration of the act, supra, pursuant to the provisions of which the Board is functioning, and it must be remembered that the Board whose action this proceeding seeks to control by mandamus, is composed of the Governor, the Lieutenant Governor, the Attorney General, the Auditor of State, the Treasurer of State and the Secretary of State, these being the constitutional executive officers of the State, together with the State Bank Commissioner. It would be an anomalous situation if the General Assembly, in constituting this board, intended that these executive officers should be called from the discharge of their important and essential duties to assemble as a board to perform mere ministerial acts. We would be reluctant to announce that conclusion, unless it was clearly indicated and required by the statute. For what purposes was this board constituted and what duties are they required to perform? As an executive board it is invested with the power, and charged with the responsibility, of refunding the various classes of outstanding obligations of the State, and the obligations of road districts, which the State offered to assume, aggregating many millions of dollars.

The act provides for the issuance of State highway refunding bonds to be exchanged for State highway bonds, toll bridge bonds short term notes issued under act No. 15, approved April 14, 1932, State bonds issued under act No. 167, approved March 28, 1933, short term notes issued under act No. 18, approved September 2, 1933, claims against the Highway Commission, under contracts for construction or maintenance, certificates of indebtedness issued under act No. 248 of 1931, certificates of indebtedness issued under act No. 8, approved October 3, 1928, and act No. 85, approved March 3, 1931, and road district bonds on which the State had been paying interest under § 3 of act No. 11, approved February 4, 1927, and § 19 of act No. 65, approved February 28, 1929. The board is...