Venhaus v. Hale, 83-236
| Decision Date | 13 February 1984 |
| Docket Number | No. 83-236,83-236 |
| Citation | 663 S.W.2d 930,281 Ark. 390 |
| Parties | Don VENHAUS, Pulaski County Judge, Appellant, v. Judge David HALE, Pulaski Municipal Court, Appellee. |
| Court | Arkansas Supreme Court |
Henry & Duckett, Little Rock, for appellant.
Dillahunty, Skelton & James, Little Rock, for appellee.
Don Venhaus, Pulaski County Judge, appeals from a denial of a writ to prohibit Pulaski Municipal Judge David Hale from ordering Venhaus to pay the fee of a Special Prosecutor in the amount of $16,125.00. Judge Hale, one of several municipal judges in Pulaski County, issued an order September 14, 1982 finding that the regularly elected Prosecuting Attorney had disqualified in a criminal case involving William C. McArthur and appointing W.H. Dillahunty as Special Prosecuting Attorney to represent the state in Pulaski County Municipal Court. The order stated that Dillahunty would have "all the powers normally granted to an elected Prosecuting Attorney and empowered him to take all actions necessary to carry out those duties."
Judge Hale issued another order on March 21, 1983 directing that "the cost of the Special Prosecuting Attorney, his investigators, and other costs of the investigation shall be borne by Pulaski County." On April 27, 1983, Judge Hale issued an order stating "upon the inherent authority of this Court to appoint a special prosecutor when the regular prosecuting attorney is disqualified, the Court finds that the County of Pulaski should pay W.H. Dillahunty $16,125.00 for his legal services performed for this Court."
County Judge Venhaus filed a motion before Judge Hale to vacate the April 27, 1983 order, and when no action was forthcoming, Venhaus filed a writ in Pulaski County Circuit Court to prohibit the payment of the fee to Dillahunty. Venhaus maintains Pulaski County Municipal Court has no jurisdiction and further that Ark.Stat.Ann. § 24-118 provides the exclusive statutory method for payment of fees of special prosecuting attorneys. Pulaski Circuit Court denied the writ, specifically finding that jurisdiction of the parties and jurisdiction of the subject matter of the proceeding was in the Pulaski County Municipal Court. We hear the appeal from that order and reverse.
The appellee judge argues that Venhaus voluntarily submitted to the jurisdiction of the municipal court, and for that reason, the trial court did not err in refusing to issue a writ of prohibition. There is no legal authority cited for this proposition, only the fact that Venhaus paid several bills for investigatory expenses submitted by Dillahunty. We have long held that subject matter jurisdiction may be raised for the first time on appeal, that the lack of such jurisdiction cannot be conferred by consent of the parties, and cannot be waived by any act of the parties. Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S.W.2d 339 (1945); Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976). The payment of Dillahunty's expenses was a gratuitous act on the part of the county and cannot be considered a waiver to object to acts not authorized by law.
The appointment and compensation of a special prosecuting attorney are matters determined by statute. The controlling statutes in Arkansas provide for the appointment to be made by the Circuit Court and the compensation to be paid by the state. See Ark.Stat.Ann. § 24-117, et seq. Since the statute expressly provides how a special prosecutor is appointed, we reach the conclusion that this excludes the appointment by an inferior court. We have held ...
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