Venhaus v. State ex rel. Lofton, 84-205

• Decision Date: 18 February 1985
• Docket Number: No. 84-205,84-205
• Citation: 684 S.W.2d 252,285 Ark. 23
• Parties: Don VENHAUS, County Judge, Appellant, v. STATE of Arkansas, ex rel., Floyd J. LOFTON, Appellee.
• Court: Arkansas Supreme Court

Page 252

684 S.W.2d 252

285 Ark. 23

Don VENHAUS, County Judge, Appellant, v. STATE of Arkansas, ex rel., Floyd J. LOFTON, Appellee.

No. 84-205.

Supreme Court of Arkansas.

Feb. 18, 1985.

Henry & Duckett by James M. Duckett, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Jeffrey A. Bell, Frederick K. Campbell, Asst. Attys. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The underlying issue in this case is whether the legislature, the quorum court, or the circuit judge has the authority to set the salary for circuit court probation officers. Act 591 of 1981 (not codified because it is catagorized as local legislation) provides that the salaries of the probation officers of Pulaski County shall not be less than $15,000 nor more than $20,000 and that the salaries of deputy probation officers shall not be less than $13,000 nor more than $18,000, with the exact amount to be set by the circuit judge. The act specifies that the salaries shall be paid by Pulaski County. Appellee Circuit Judge Floyd Lofton, of the first division of the sixth circuit, set the amounts of the salaries for the first division of the sixth circuit at $20,000 and $18,000. The Quorum Court of Pulaski County appropriated only $17,800 and $16,457 for the two employees. The Circuit Judge informed the County Judge by letter that the salaries of $20,000 and $18,000 were necessary and essential expenses for the administration of justice. The County Judge refused to approve disbursement of county funds in excess of the appropriation by the Quorum Court. The Circuit Judge then sought a writ of mandamus to compel the County Judge, Treasurer and Quorum Court to pay the higher salaries. The circuit court, by a judg eon assignment, issued the writ of mandamus. We reverse. Jurisdiction to interpret the Constitution of Arkansas, to determine the constitutionality of state law and to hear the appeal of a mandamus action directed to county officials is in the Court. Rule 29(1)(a), (c), and (f).

The county officials argue that the writ of mandamus should be dissolved because Amendment 55 to the Constitution of Arkansas implies that the quorum court should set the salaries of circuit court employees. The argument is without merit. Traditionally, quorum courts have been held to have jurisdiction only over local matters, and a circuit court and its employees are not a local matter. Campbell, County Judge v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957). Amendment 55 does not cause us to modify this body of law. The Amendment provides that the quorum court may exercise only "local legislative authority." Section 1(a). In addition, our earlier cases have set out additional reasons the quorum court is without discretion to set the expenses of state courts.

In Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946 (1936), the county court refused to pay the salaries for the court reporter and grand jury stenographer in the amounts set by the legislature, and we authorized the circuit court to impound county funds to pay the salaries. In the material part of the opinion, we wrote:

These claims are a part of the necessary expenses of the operation of the county government and take precedence over all permissive expenditures. They are provided by statute so that courts and other such agencies may function. They are imposed by law and must be paid as long as there is money within the general fund to pay them. If this were not so, county government must stop. It is not discretionary with the county court to allow them. The county court must allow them, and, if it fails to do so, the circuit court may compel him to perform this ministerial act. This court ruled in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, in speaking of all necessary expenses imposed by law, that the county court has no control or discretion over them except, perhaps, the amount to be allowed for the services. In the instant case, the amount to be allowed is fixed by law. If the law were otherwise, county courts might obstruct the necessary and orderly administration of the affairs of the county. In view of the supervisory power of the circuit court over inferior tribunals, it did not exceed its authority in impounding the fund in the hands of the treasurer until the proceeding in mandamus might be adjudicated.

In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W.2d 914 (1941), it was claimed that a legislative enactment requiring the quorum court to appropriate money for municipal court purposes was unconstitutional. In upholding the statute, we wrote:

We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946, there was involved an act of the general assembly requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, ...

In Campbell v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957), we held that a county was required to pay expenses for mental tests of defendants, when ordered to so do by a circuit court and we stated:

Act 77, § 6, Ark. Acts of 1879, Pope's Digest § 2527, now codified as Ark.Stat. (1947), § 17-409, has been considered and discussed in many cases. In Polk County v. Mena Star Co., supra, it was pointed out that "... this court, many years ago, determined and held that there were two classes of obligations dealt with in this section of statutes [Ark.Stat. (1947), § 17-409; first, those that are imposed on the counties by law and about which the county court is substantially without discretion; ... items 1 to 4, inclusive, being in the first class...." It is interesting to note that the first item [Ark.Stat.1947, § 17-409]; sub-par. Sixth--1.] provides: "1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate's courts, ..."

From this plain language and the many decisions analyzed in reaching the conclusion herein set forth it seems fundamental that the County Court is responsible for the expenses of the courts in our judicial system.

Here we have an item having to do with expenses of the Circuit Courts, ... It is inconceivable that the framers of our Constitution could have intended to stretch the plain language of Art. 7, § 28, so as to vest the County Court, an office requiring no special knowledge of the law, with exclusive jurisdiction to completely thwart the operation of our criminal courts in granting an accused certain rights, by refusing to pay expenses of that court. The Circuit Court, a State Office, was here discharging a duty imposed on it by the legislative branch, namely, granting a mental examination to one accused of a crime who has raised the defense of insanity. In view of the myriad of cases and the long-standing operation of Ark.Stat. (1947) § 17-409 (1879) Act there can be no question but that the County Court and the Quorum Court, its appropriating agency, must pay the expenses of the courts of record within their boundaries.

The quorum court is without discretion to establish the amount of the salaries of circuit court employees.

The county officials alternatively argue that Act 591 of 1981 is constitutionally invalid. The argument is correct. The Constitution of the State of Arkansas provides for three separate but equal branches of government. Article 4, Sections 1 and 2. Under our constitutional doctrine, the legislative branch is to fix salaries. Beaumont, Judge v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980). While the General Assembly may not delegate its legislative authority, it may by providing guidelines, delegate "the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend." Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967). This rule was stated in Hooker v. Parkin, 235 Ark. 218, 225, 357 S.W.2d 534, 539, (1962) as follows:

The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.

The statute at issue does not provide for grades or steps based upon training, education, experience, or other fact or thing to be used in the salary determination. The statute vests unbridled discretion in the judge and contravenes the separation of powers doctrine.

The Circuit Judge argues that, even if the statute is unconstitutional, he has the inherent authority to set the salaries. The argument assumes that there is no earlier act which validly sets the salaries of these employees.

The separation of powers doctrine necessarily implies that a court has the constitutional authority to order these acts done which are necessary and essential for the court to operate. However, that constitutional authority does not extend past ordering acts which are necessary and essential for the court to operate. Turner, Ex Parte, 40 Ark. 548, 549 (1883).

The only evidence on the point is a rote phrase contained in a letter from the circuit judge to the quorum court stating that the amounts which he set were necessary and essential. This one conclusory phrase is not substantial evidence of absolute...