Walther v. McDonald

Decision Date22 January 1968
Docket NumberNo. 5--4379,5--4379
Citation243 Ark. 912,422 S.W.2d 854
PartiesGlenn F. WALTHER, Appellant, v. David C. McDONALD, Jr., Appellee.
CourtArkansas Supreme Court

Leon B. Catlett and Glenn F. Walther, Little Rock, for appellant.

Abner McGehee, Little Rock, and Richard S. Arnold, Texarkana, for appellee.

WARD, Justice.

The issue presented here for decision is whether Glenn F. Walther (appellant) is legally a member of the Arkansas Public Service Commission. Set out below are some of the undisputed background facts which explain how the issue reaches this Court.

The Legislature convened in regular session on Monday, January 9, 1967. On that day Dan D. Stephens was a duly appointed, qualified and acting member of the said Commission.

On January 14, 1967, the term for which Stephens was appointed expired, but pursuant to Ark.Stat.Ann. § 73--101 (Repl.1957) he continued to hold office 'until his successor was appointed and qualified.'

On February 9, 1967 the Senate went into the Committee of the Whole, and then into Executive Session, at which time appellant was appointed to succeed Stephens for a term to expire on February 14, 1973. Shortly thereafter (but on the same day) the Governor sent to the Senate the appointment of Jerry Thomasson to the same position on the Commission.

On February 10, 1967 (Friday) the Senate passed a resolution (No. 16) reaffirming its action on the previous day.

On the following Monday (February 13, 1967) the Senate resumed its deliberations (in Executive Session) of appointments by the Governor which began on February 9, and the appointment of Jerry Thomasson by the Governor was rejected because the position had already been filled by the appointment of appellant.

On February 24, 1967, David C. McDonald, Jr., a resident, citizen and taxpayer filed a complaint in the Pulaski County Chancery Court, against appellant, the State Auditor, and the State Treasurer, asking the court to declare appellant's appointment illegal and void, and to enjoin the state officers from paying his salary. The complaint alleged, among other things, that the appointment of appellant was illegal and void under the provisions of Ark.Stat.Ann. § 6--601 et seq. and § 7--201 et seq. (Repl.1956).

On February 27, 1967 the state officers filed a general denial and on the following day appellant filed an answer denying all material allegations in the complaint and further alleging that his appointment was 'in conformity with the rules and customs of the Senate, the Statutes of the State of Arkansas and the Constitution of the State of Arkansas, and that he is now serving as a legally appointed member of the Public Service Commission since the 10th day of February, 1967.' He also asked that the complaint be dismissed for want of equity.

A trial was had on the issues joined on a stipulation of facts and the oral testimony of one member of the Senate. At the conclusion, the trial judge issued an exhaustive Memorandum Opinion from which we quote the following portions:

'The Arkansas Senate, in adopting Resolution No. 16, seemingly acted (according to the undisputed arguments of all parties) under the authority of Act 417 of 1947, Acts of Arkansas. Therefore, the first question considered by the Court in reaching its conclusion in this case is the applicability of this act to these circumstances. * * *

'Because it is the conclusion of the Court that 417 is not applicable to the facts of this case, it is not necessary to consider the other points of argument presented by the parties.'

The trial court then, in its decree, found 'that the purported appointment of the defendant, Glenn f. Walther, by the Arkansas Senate, as a member of the Public Service Commission is illegal and void,' and restrained him 'from acting or purporting to act' as a member of the Commission--also restraining the other defendants from paying his salary.

We agree with the trial court's interpretation of the decisive issue presented in this case, and also agree with its determination of that issue.

On appeal, and in response to the one vital issue found by the trial court, appellant states:

Act 417 of 1947, Section 1 (Ark.Stat.Ann. § 6--601 (Repl. 1956)) applies to all Boards and Commissions, specifically including the Public Service Commission.

We are unable to agree with the interpretation appellant gives to the above statute. There are several reasons why we conclude this statute deals only with Honorary Boards and Commissions, and does not include the Public Service Commission. We note here that appellant does not, and cannot reasonably, contend that the Public Service Commission is an Honorary Commission.

(a) The title of said Act 417 contains this clause:

'For Regulation of Sessions of Honorary Boards and Commissions.' In Stewart v. Shaver, 207 Ark. 847, p. 849, 183 S.W.2d 299, this Court said:

'Result is that we must deal with an Act wherein the title (which, of course, is not controlling, but may be looked to in ascertaining intent) * * *.'

In the early case of Reynolds v. Holland, 35 Ark. 56, p. 60 the Court said: 'The title of this act affords the clue to its intention.' Our research reveals that this case (on the point stated) has been cited with approval in more than 10 decisions of this Court, including the case of Pruitt v. Sebastian County Coad & Mining Co., 215 Ark. 673, 222 S.W.2d 50. It is true that we have said that the language in the act must be considered, and, when clear, it is controlling.

(b) We now look at some of the language in Act 417. Section 2 says the 'board or commission shall meet in regular session at least once during each bimonthly period;' that the board shall notify the Governor who shall be eligible to attend and sit with the Commission; Section 3 provides that any member of the board who shall be absent from two successive regular meetings shall be subject to removal. Considering the above language, it would be unreasonable to say it was meant to apply to the Public Service Commission.

Appellant, in this connection, argues that if the legislature had intended for Act 417 to apply only to honorary boards, it would have obviously amended Act 1 of 1943, but we find no merit in such argument. Said Act 1 abolished all boards and commissions charged with 'charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas, as now established', and created sixteen other boards of like nature. It is common knowledge of which we take judicial notice that since 1943 many honorary boards and commissions have been established which are in no way related to, or of the nature of, the ones mentioned above, and which may be subject to the provisions of Act 417.

Ark.Stat.Ann. § 73--101 [Repl.1957] specifically deals with the appointments to the Arkansas Public Service Commission, and is applicable in this case. It provides, among other things, that the Governor shall appoint the commissioners--subject to approval of the Senate; that the terms will expire on January 14 of each year, and that: 'Each commissioner shall hold office during the term for which he was appointed and until his successor is appointed and qualified'. (Emph. supplied.)

In view of what we have heretofore said, we conclude that appellant's appointment by the Senate was a nullity and that the decree of the trial court must be, and it is hereby, affirmed.

DISSENTING OPINION

FOGLEMAN, Justice.

The reasons given by the majority for sustaining the action of the trial court fail to take into consideration many previous decisions of this court and utilize others only for 'proof-text' quotations without considering the background on which those decisions are based. I submit that Act 417 of 1947 is a complete, understandable, unambiguous statute and that its language speaks clearly for itself. In order to demonstrate, it becomes necessary to reproduce the full text of the act (omitting the severability clause), now appearing as Ark.Stat.Ann. §§ 6--601, 6--602, 6--603 (Repl.1957). SECTION 1. Within twenty days after the convening of the General Assembly in regular session, the Governor shall submit to the Senate for confirmation the names of such board or commission members and appointees as are by law required to be confirmed by the Senate. Provided, however, that the names of appointees to fill vacancies which occur after the first twenty days of the session of the General Assembly, but prior to the adjournment thereof, shall be submitted within five days from the date of each such vacancy. In the event of rejection by the Senate of an appointee whose name has been so submitted, the Governor shall, within ten days after receipt of written notice from the Secretary of the Senate of such rejection, submit the name of another appointee to fill such vacancy. In the event the Governor should, within the time herein required, fail to appoint, or fail to submit to the Senate for confirmation, the name of any appointee, the office shall be vacant, and the Senate shall proceed to fill the vacancy by an appointee of its own choice.

SECTION 2. Each such board or commission shall meet in regular session at least once during each bimonthly period, and shall meet in special session as often as its business may require. Except in those instances when such boards or commissions have under consideration privileged information concerning individuals, all meetings shall be open to the public.

The chairman, or secretary, of each such board or commission shall, in writing and not less than forty-eight hours in advance thereof, notify the Governor of each regular or special session, and the Governor, or a representative designated by him, shall be eligible to attend all such meetings, and to sit with such board or commission when privileged information is being considered; and the said secretary shall, within five days after each such meeting, furnish the Governor with a certified copy of the minutes thereof. Provided,...

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