{ "id": 1619236, "name": "Almer MARTINDALE Jr. v. Charles L. HONEY", "name_abbreviation": "Martindale v. Honey", "decision_date": "1976-03-01", "docket_number": "75-102", "first_page": "416", "last_page": "423", "citations": [ { "type": "official", "cite": "259 Ark. 416" }, { "type": "parallel", "cite": "533 S.W.2d 198" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "235 Ark. 982", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684850 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/235/0982-01" ] }, { "cite": "199 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456537 ], "weight": 2, "year": 1939, "pin_cites": [ { "page": "203" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ark/199/0196-01" ] }, { "cite": "226 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720392 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/226/0370-01" ] }, { "cite": "223 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650292 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/ark/223/0118-01" ] }, { "cite": "220 Ark. 762", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660188 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/220/0762-01" ] }, { "cite": "204 S.W. 421", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1918, "opinion_index": 0 }, { "cite": "134 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573301 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ark/134/0514-01" ] }, { "cite": "181 S.W. 128", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1915, "opinion_index": 0 }, { "cite": "121 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559410 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/ark/121/0317-01" ] }, { "cite": "106 S.W. 667", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "84 Ark. 540", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524377 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/84/0540-01" ] }, { "cite": "91 S.W. 2d 281", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1936, "opinion_index": 0 }, { "cite": "192 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415117 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/ark/192/0342-01" ] }, { "cite": "107 S.W. 380", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "85 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523286 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/85/0089-01" ] }, { "cite": "25 S.W. 2d 429", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "181 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720211 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ark/181/0260-01" ] }, { "cite": "249 S.W. 2d 5", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1660052 ], "opinion_index": 1, "case_paths": [ "/ark/220/0625-01" ] }, { "cite": "220 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 }, { "cite": "234 Ark. 990", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688388 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/234/0990-01" ] }, { "cite": "40 ALR 945", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1926, "opinion_index": 1 }, { "cite": "5 ALR 117", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1920, "pin_cites": [ { "page": "120" } ], "opinion_index": 1 }, { "cite": "40 ALR 941", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1925, "opinion_index": 1 }, { "cite": "232 Pac. 388", "category": "reporters:state_regional", "reporter": "P.", "year": 1925, "opinion_index": 1 }, { "cite": "107 Okla. 272", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8888078 ], "year": 1925, "opinion_index": 1, "case_paths": [ "/okla/107/0272-01" ] }, { "cite": "164 P. 428", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 1 }, { "cite": "33 Cal. App. 104", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2027490 ], "year": 1917, "opinion_index": 1, "case_paths": [ "/cal-app/33/0104-01" ] }, { "cite": "56 Am. St. Rep. 459", "category": "reporters:state", "reporter": "Am. St. Rep.", "year": 1895, "opinion_index": 1 }, { "cite": "30 LRA 630", "category": "reporters:federal", "reporter": "L.R.A.", "year": 1895, "opinion_index": 1 }, { "cite": "65 N.W. 262", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1895, "opinion_index": 1 }, { "cite": "63 Minn. 147", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1659553 ], "year": 1895, "opinion_index": 1, "case_paths": [ "/minn/63/0147-01" ] }, { "cite": "160 N.W. 2d 883", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1968, "opinion_index": 1 }, { "cite": "381 Mich. 304", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1889079 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/mich/381/0304-01" ] }, { "cite": "49 N.W. 308", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1891, "opinion_index": 1 }, { "cite": "86 Mich. 468", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1378934 ], "year": 1891, "opinion_index": 1, "case_paths": [ "/mich/86/0468-01" ] }, { "cite": "206 Ark. 605", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1484982 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/206/0605-01" ] }, { "cite": "39 P. 974", "category": "reporters:state_regional", "reporter": "P.", "year": 1895, "opinion_index": 1 }, { "cite": "11 Wash. 435", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 780302 ], "year": 1895, "opinion_index": 1, "case_paths": [ "/wash/11/0435-01" ] }, { "cite": "62 P. 2d 94", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1936, "opinion_index": 1 }, { "cite": "178 Okla. 212", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8893443 ], "year": 1936, "opinion_index": 1, "case_paths": [ "/okla/178/0212-01" ] }, { "cite": "13 LRA 721", "category": "reporters:federal", "reporter": "L.R.A.", "year": 1891, "opinion_index": 1 }, { "cite": "13 S.E. 698", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1891, "opinion_index": 1 }, { "cite": "109 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8648808 ], "year": 1891, "opinion_index": 1, "case_paths": [ "/nc/109/0001-01" ] }, { "cite": "126 Miss. 358", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 773560 ], "weight": 2, "year": 1921, "opinion_index": 1, "case_paths": [ "/miss/126/0358-01" ] }, { "cite": "200 Ark. 1112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453417 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/200/1112-01" ] }, { "cite": "223 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650292 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/ark/223/0118-01" ] }, { "cite": "220 Ark. 762", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660188 ], "weight": 2, "year": 1952, "opinion_index": 1, "case_paths": [ "/ark/220/0762-01" ] } ], "analysis": { "cardinality": 749, "char_count": 13060, "ocr_confidence": 0.878, "pagerank": { "raw": 9.941430696991135e-08, "percentile": 0.5366390086835179 }, "sha256": "11f60a1edf331b74e244b798fae4b7529e85374da527776a42fdd22ae404af69", "simhash": "1:d31e1364e0375e92", "word_count": 2219 }, "last_updated": "2023-07-14T19:48:09.193956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., disqualified and not participating.", "Holt, J., disqualified and not participating,", "Special Justice H. David Blair sitting in his stead.", "Fogleman and Jones, JJ., dissent." ], "parties": [ "Almer MARTINDALE Jr. v. Charles L. HONEY" ], "opinions": [ { "text": "Robert S. Lindsey, Special Chief Justice.\nTo the question \u201cMay a member of the General Assembly, during his term of office, constitutionally be appointed a deputy prosecuting attorney?\u201d, we answer \u201cNo.\u201d\nOn August 1, 1973, the prosecuting attorney appointed appellee Charles L. Honey, a member of the House of Representatives, to the position of deputy prosecuting attorney for Nevada County. In chancery court appellant Aimer Martindale, Jr., as a citizen and taxpayer, challenged the legality of the appointment.\nThe chancellor transferred the action to circuit court - \u201cinsofar as the question of the defendant\u2019s legal qualifications to be appointed and to serve ... is concerned,\u201d but retained jurisdiction to afford the plaintiff the remedy of an accounting, should the plaintiff\u2019s contentions concerning Honey\u2019s qualifications to serve as deputy prosecuting attorney be upheld. There was no motion to transfer back to chancery court and it is not necessary to discuss or decide the propriety of the transfer to circuit court. Quinn v. Murphy, 181 Ark. 260, 25 S.W. 2d 429 (1930).\nSection 10 of Article 5 of the Arkansas Constitution provides:\n\u201cNo Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.\u201d\nBy Section 1 of Article 4 the powers of government of the State are \u201cdivided into three distinct departments,\u201d legislative, executive and judicial.\nSection 2 of Article 4 reads:\n\u201cNo person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.\u201d\nThe Constitution provides for the office of prosecuting attorney and places it in the judicial department. Art. 7, \u00a7 24. It is a State office and the prosecuting attorney is an officer of the State. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380 (1907); Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281 (1936).\nThe office of deputy prosecuting attorney has been created and provided for by the legislature, a deputy being appointed by the prosecuting attorney, with the appointment not to take effect until approved in writing by the circuit court. Ark. Stats. Ann. \u00a7 24-119 (Repl. 1962).\nIn previous discussions concerning whether a particular position was an office or a mere employment, we have said that the distinction often becomes indistinct and we have refrained from framing an inflexible definition or drawing a precise line. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907); Rhoden v. Johnston, 121 Ark. 317, 181 S.W. 128 (1915); Middleton v. Miller County, 134 Ark. 514, 204 S.W. 421 (1918); Maddox and Coffman v. State, 220 Ark. 762, 249 S.W. 2d 972 (1952); Bean v. Humphrey, State Auditor, 223 Ark. 118, 264 S.W. 2d 607 (1954); Haynes v. Riales, 226 Ark. 370, 290 S.W. 2d 7 (1956).\nSomewhat by definition, there is a distinction between deputies and assistants. Ordinarily, a deputy acts officially for another, as a substitute, and by his appointment exercises the office in his principal\u2019s right or name, his acts being of equal force with those of the officer himself. 63 Am. Jur. 2d Public Officers and Employees, \u00a7\u00a7483 through 487, 67 C.J.S. Officers, \u00a7148.\nThis court has said\n\u201cIt is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecuting attorney. \u201d Johnson v. State, 199 Ark. 196, 203, 133 S.W. 2d 15, 18 (1939); Bingley v. State, 235 Ark. 982, 363 S.W. 2d 530 (1963).\nIn the latter case we upheld the validity, under Amendment 21 to the Constitution, of an information where the name of the pros\u00e9cuting attorney and the word \u201cby\u201d were typewritten and followed by the signature of the deputy prosecuting attorney.\nAs noted, the office of deputy prosecuting attorney is created by law; deputy prosecuting attorneys regularly exercise some of the State\u2019s soverign power in the judicial department; their duties are statutory rather than contractual; they hold their positions by official appointments, not by contract of hire; and their compensation is fixed or regulated by law. These characteristics of the office, considered collectively, indicate a public office as contrasted with a mere public employment, even though every public office may be an employment.\nThe circuit judge, after holding that a deputy prosecuting attorney \u201cis not a civil officer within the meaning of the constitutional prohibition,\u201d dismissed the plaintiff\u2019s complaint. Having concluded that a member of the General Assembly is prohibited by our Constitution from being appointed or serving as a deputy prosecuting attorney, we reverse and remand with directions that judgment be entered declaring that the appellee, during his term of office as a member of the General Assembly, is ineligible to be appointed or to serve as a deputy prosecuting attorney.\nHarris, C.J., disqualified and not participating.\nHolt, J., disqualified and not participating,\nSpecial Justice H. David Blair sitting in his stead.\nFogleman and Jones, JJ., dissent.", "type": "majority", "author": "Robert S. Lindsey, Special Chief Justice." }, { "text": "John A. Fogleman, Justice,\ndissenting. It may well be that the majority has reached a desirable result. But even if the answer given should be correct, it has been given to the wrong question. The principal basis of my disagreement is the question as stated by the majority. I humbly submit that the only question presented to the trial court or in the briefs was somewhat different. It was whether the appointment of a representative to the position of deputy prosecuting attorney violates Art. 5 \u00a7 10 of the Arkansas Constitution. The judgment was entered upon motions for summary judgment made by each of the parties. Appellant\u2019s motion was based upon the sole contention that the position of deputy prosecuting attorney was a civil office. Appellee\u2019s motion was based upon the contention that the deputy prosecuting attorney was a public employee and not a civil officer. Art. 4 \u00a7 2 was never mentioned by anyone except the members of this court. More simply stated, the question at issue in the trial court and submitted to us was: \u201cIs the position of deputy prosecuting attorney a civil office?\u201d I cannot agree with the majority in this respect. As I see it, a deputy prosecuting attorney is an employee, not a civil officer.\nAlthough this court has appropriately avoided any rigid rule in the matter, the importance of certain factors cannot be overlooked. In Maddox v. State, 220 Ark. 762, 249 S.W. 2d 972, cited in the majority opinion, we said:\nSince the distinction between a public officer and a public employee tends to become indistinct when the position in dispute has some of the characteristics of each, we have never attempted to frame an inflexible definition of either. Yet the governing principles are well established. A public officer ordinarily exercises some part of the State\u2019s soverign power. His tenure of office, his compensation, and his duties are usually fixed by law. The taking of an oath of office, the receipt of a formal commission, and the giving of a bond all indicate that a public office is involved, although no single factor is ever conclusive. *** On the other hand, mere public employment differs from a public office in that some or all of these characteristics are lacking.\nIt is clear that a school teacher, whose tenure, compensation, and duties are all fixed by his contract with the school board, is an employee rather than an officer. ***\nAs in Maddox, some of the important characteristics of a public office (which I take to be included within the definition of a civil office) are missing.\nIn the first place the deputy prosecuting attorney has no authority to exercise any of the sovereign power in his own name. Whatever power he exercises is in the name of his principal, the prosecuting attorney. It is clear that this power can be limited by the prosecuting attorney. In considering Ark. Stat. Ann. \u00a7 24-120 (Repl. 1962) giving the deputy prosecuting attorney the authority to file informations charging persons with criminal offenses, we made it quite clear that there was only a prima facie presumption that a deputy prosecuting attorney has been authorized to file an information. State v. Eason, 200 Ark. 1112, 143 S.W. 2d 22. There we said:\n*** Pope\u2019s Digest, \u00a7 10885, authorizes deputy prosecuting attorneys to file information in their own names. There is, prima facie, a presumption that a deputy prosecuting attorney acts under direction of his superior. Until the authority is questioned and there is failure of the prosecuting attorney to affirm, the information, being voidable only, is sufficient to bring the defendant before the court, and in consequence such court acquires jurisdiction.\nThe deputy prosecuting attorney is only required to attend and prosecute charges on behalf of the state when a warrant has been issued by a judicial officer, or when a judicial officer or the prosecuting attorney requests him to do so. See Ark. Stat. Ann. \u00a7\u00a7 24-\u00cd21, 123 (Repl. 1962). Thus it may be clearly seen that the deputy prosecuting attorney\u2019s exercise of the sovereign powers of government is in the name of another.\nThe acts of a deputy in the name of his principal are those of the principal and not of the deputy, and it is the principal not the deputy who is exercising the sovereign power. State v. Christmas, 126 Miss. 358, 88 S. 881 (1921). See also, Jamesville & Washington R. Co. v. Fisher, 109 N.C. 1, 13 S.E. 698, 13 LRA 721 (1891); Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P. 2d 94 (1936). Where the statute confers a power to be exercised only in the name of the principal the deputy is not an officer. 67 CJS 450, Officers \u00a7 148. State v. Christmas, supra; State v. Houck, 31 Ohio Cir. Ct. Rep. 15 (1908). See also, Nelson v. Troy, 11 Wash. 435, 39 P. 974 (1895).\nThe investment of sovereign powers in the incumbent is one of the more important, if not the most important, criteria of public office. 63 Am. Jur. 2d 627, Public Officers & Employees, \u00a7 2; 67 CJS 110, Officers, \u00a7 5b (2). We have said that sovereign powers are a necessary requisite to any office. Bean v. Humphrey, 223 Ark. 118, 264 S.W. 2d 607.\nTenure is also an important, even if not controlling, characteristic of a public office. A deputy prosecuting attorney has no tenure and cannot be assured any by agreement of the prosecuting attorney. He may be removed by the prosecuting attorney at any time. Ark. Stat. Ann. \u00a7 24-120. Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412. Certainly, it would be hard for one subject to dismissal on a moment\u2019s notice to feel that he had the security of a civil office.\nSome duties of the deputy prosecuting attorney are stated by law. As pointed out, those stated are not duties until someone else has acted to make them so. But I am sure that no one would say that his duties are fixed by law, so that other duties could not be assigned by the prosecuting attorney. It is common knowledge that deputy prosecuting attorneys do many things other than those named in the statutes.\nThere is no requirement that the deputy prosecuting attorney take an oath, were it not for the holding that he holds a civil office bringing him within the purview of Art. 19 \u00a7 20. I find no requirement that any formal commission be issued to a deputy prosecuting attorney or that his appointment be formal in any s\u00e9ns\u00e9. It is only required that the appointment be approved, in writing, by the circuit court. Ark. Stat. Ann. \u00a7 24-119. No bond whatever is required.\nUpon review of the Maddox requirements, I find only one of the criteria for determining whether one is the holder of a public office which is met in this case. That is the fixing of compensation by law. I do not see how such an important determination can rest upon such a slim reed.\nTo illustrate the importance of the distinction between the question at issue and the question posed and answered by the majority, I point out that if Art. 5, \u00a7 10 is applicable, a senator or representative could not even resign before the expiration of his term and accept appointment as a deputy prosecuting attorney. People v. Lennon, 86 Mich. 468, 49 N.W. 308 (1891); Richardson v. Hare, 381 Mich. 304, 160 N.W. 2d 883 (1968); State v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 LRA 630, 56 Am. St. Rep. 459 (1895); Chenowith v. Chambers, 33 Cal. App. 104, 164 P. 428 (1917); Baskin v. State, 107 Okla. 272, 232 Pac. 388, 40 ALR 941 (1925); Annot 5 ALR 117, 120 (1920), S 40 ALR 945 (1926). Cf. Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5; Johnson v. Darrell, 220 Ark. 675, 249 S.W. 2d 5. If the majority\u2019s result should be reached by applying Art. 4 \u00a7 2, he could.\nI would affirm the judgment.\nI am authorized to state that Mr. Justice Jones joins in this opinion.", "type": "dissent", "author": "John A. Fogleman, Justice," } ], "attorneys": [ "James E. Davis, for appellant.", "Norman M. Smith, for appellee." ], "corrections": "", "head_matter": "Almer MARTINDALE Jr. v. Charles L. HONEY\n75-102\n533 S.W. 2d 198\nOpinion delivered March 1, 1976\nJames E. Davis, for appellant.\nNorman M. Smith, for appellee." }, "file_name": "0416-01", "first_page_order": 444, "last_page_order": 451 }