{
  "id": 8724093,
  "name": "John Norman HARKEY, Commissioner v. Kay L. MATTHEWS, Chancellor",
  "name_abbreviation": "Harkey v. Matthews",
  "decision_date": "1967-12-18",
  "docket_number": "5-4451",
  "first_page": "775",
  "last_page": "779",
  "citations": [
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      "cite": "243 Ark. 775"
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    {
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      "cite": "422 S.W.2d 410"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "208 Ark. 517",
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      "reporter": "Ark.",
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    {
      "cite": "220 Ark. 621",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1660164
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      "weight": 2,
      "year": 1952,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T18:02:41.806727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Harris, C. J., Ward and Jokes, JJ., dissent.",
      "Harris, C. J. and JoNes, J., join in this dissent."
    ],
    "parties": [
      "John Norman HARKEY, Commissioner v. Kay L. MATTHEWS, Chancellor"
    ],
    "opinions": [
      {
        "text": "Conley Byrd, Justice.\nThe Insurance Commissioner for the State of Arkansas by this proceeding seeks a writ to prohibit Kay L. Matthews, Pulaski Chancery Judge, from proceeding on a petition for injunction filed in his court by Savings Guaranty Corporation, an insurance company licensed under the laws of Arkansas. We deny the petition for failure to abstract the record in accordance with our Rule 9(d).\nRule 9(d) provides that the abstract should consist of an impartial condensation, without comment, of such parts of the pleadings, proceedings, facts, documents, etc. as are necessary to an understanding of all questions presented.\nThe petitioner\u2019s abstract of the record is as follows:\n\u201cThe grounds for the petition and the facts on which the petition are based are set out in the petition for Writ of Prohibition and may be briefly summarized as follows: On August 9, 1967, the 'Commissioner held a hearing relative to Savings Guaranty Corporation. At the conclusion of the hearing the Commissioner ordered that the Certificate of Authority of Savings as to a certain part of its business should be suspended but that the formal entry of the order should be withheld for a period of two weeks or such additional time as may be necessary. The Commissioner retained jurisdic- . tion for such further orders as may be necessary in the premises. On August 22,1967, 'Savings filed in the Chancery Court of Pulaski County, Arkansas a pleading entitled Petition for Injunction wherein Savings prayed for an order prohibiting and enjoining the Commissioner from entering the above-mentioned order on hearing. On the-same date, without notice or hearing, a temporary order was entered in accordance with the Petition for Injunction. On August 25, 1967, Savings filed a pleading entitled \u2018Petition for Citation for Contempt,\u2019 alleging that the Commissioner had issued his finding of fact and order in violation of the Chancery Court\u2019s temporary order and prayed that the Commissioner be held in contempt of court. On August 23,1967, the Commissioner filed a motion to dismiss the Petition for Injunction for lack of jurisdiction, and an answer to the Petition for Citation for Contempt. On September 7, 1967, after a hearing held on August 28, 1967, the Chancery Court entered an order holding that it had jurisdiction of the Petition for Injunction, denying the Petition for Citation for Contempt, and ordered that the effectiveness of the Commissioner\u2019s order be held in abeyance pending a final hearing on the Petition for Injuncttion. As we understand the respondent\u2019s position, it is conceded that the Chancery Court does not have jurisdiction to enjoin the Commissioner after he has entered his order, it being necessary to follow the statutory procedure provided for appeals from the Commissioner\u2019s order. Thus, the single issue before this Court is whether the Chancery Court has jurisdiction to enjoin or prohibit the Commissioner from entering such order.\u201d\nThe only indication in the abstracts and briefs of either petitioner or respondent showing the enjoined conduct was in respondent\u2019s statement of his case. That was that the \u201cCertificate of Authority as to the surety business of Savings Guaranty Corporation with Arkansas Loan & Thrift Corporation is hereby suspended\u201d but that \u201cthe Insurance Commissioner will withhold formal entry of this Order for two weeks, or such additional time as may be necessary.\u201d\nWe have consistently held that for the writ of prohibition to issue, it must appear that the trial court proposes to act in a matter not within its jurisdiction and that petitioner has no other remedy to prevent the usurpation of jurisdiction, Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S. W. 2d 3 (1952).\nOur cases also recognize that equity has'jurisdiction to restrain acts of public officers or agencies which are ultra vires and beyond the scope of their authority, Jensen v. Radio Broadcasting Co., . Inc., 208 Ark. 517, 186 S. W. 2d 931 (1945). Of course, if the matter at issue before the Commissioner is one which he is given authority' to regulate, then the Chancery Court would have no' jurisdiction, but unfortunately we are unable from the record as abstracted to make a determination either way on the matter. In this situation we must deny the petition.\nDenied.\nHarris, C. J., Ward and Jokes, JJ., dissent.",
        "type": "majority",
        "author": "Conley Byrd, Justice."
      },
      {
        "text": "Paul Ward, Justice,\ndissenting. The majority opinion contains this sentence: \u201cWe deny the petition for failure to abstract the record in accordance with Bule 9(d). \u201d It then proceeds to state the provisions of that rule.\nThe above rule has no application in this kind of a proceeding. Applicable in a prohibition proceeding before this Court is Buie number 16 which we applied less than ten days ago in the case of Phillip Carroll v. Phil Stratton No. 4530 where we issued a temporary writ of prohibition on a petition without any briefs or abstract of the record. There, we not only granted a temporary writ but we specifically told the petitioner to proceed under Bule 16. This Buie, in material parts, reads:\nPETITIONS FOB PBOH1BITION, CEBTIOBA-BI, ETC.\n\u201cIn cases in which the jurisdiction of this court is in fact appellate although in form original, such as petitions for writs of prohibition or certiorari, the pleadings with their exhibits are treated as the record, and the pleader is required to file only the original typewritten copy ...\u201d\nThe majority opinion also states that the only indication \u201cshowing the enjoined conduct\u201d was the order of the Commissioner. That this statement is wholly unfounded is revealed by a casual reading of the Commissioner's petition filed in this Court, and his brief. Also, pursuant to said Rule 16, we can consider the entire record which was filed here together with the petition.\nProm the above sources it can be easily ascertained that the Commissioner makes it abundantly clear that he was, when stopped by the Respondent, proceeding-under \u00c1rk. Stat. Ann. \u00a7 66-2126 (Repl. 1966) which says he \u201cshall act in a quasi-judicial capacity\u201d, and under the succeeding section which says that when he makes an order or refuses to \u201cgrant or hold a hearing after demand\u201d an appeal \u201cshall be granted as a matter of right to the Circuit Court. . .\u201d (Emphasis added.)\nTn view of the above this Court should not only consider the petition on its merits but should also grant it, based on the following statement appearing in the majority opinion: \u201c. . . if the matter at issue before the \u25a0Commissioner is one which he is given authority to regulate, then the Chancery Court would have no jurisdiction. . .\u201d\nIt appears that the only reason for the Respondent\u2019s action in this case was that the affected Insurance Company might suffer a financial loss if the Commissioner performed the duties imposed on him by the statutes. If such procedure is sanctioned by this Court the Arkansas Insurance Code [enacted to protect the people] might as well be repealed, because any insurance company that should be investigated will necessarily suffer a financial loss when its deficiency is exposed.\nHarris, C. J. and JoNes, J., join in this dissent.",
        "type": "dissent",
        "author": "Paul Ward, Justice,"
      }
    ],
    "attorneys": [
      "Allan W. Horne, for petitioner.",
      "Garner & Parker, for respondent."
    ],
    "corrections": "",
    "head_matter": "John Norman HARKEY, Commissioner v. Kay L. MATTHEWS, Chancellor\n5-4451\n422 S. W. 2d 410\nOpinion delivered December 18, 1967\n[Rehearing denied January 29, 1968]\nAllan W. Horne, for petitioner.\nGarner & Parker, for respondent."
  },
  "file_name": "0775-01",
  "first_page_order": 797,
  "last_page_order": 801
}