Cosgrove v. The City of West Memphis

Bob COSGROVE v. The CITY OF WEST MEMPHIS,
Arkansas; Keith Ingram, Mayor; and the West
Memphis Public Utilities Commission

96-286                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 17, 1997


1.   Municipal corporations -- extent and exercise of powers. -- Cities have
     no inherent powers and can exercise only (1) those expressly
     given them by the state through the constitution or by
     legislative grant, (2) those necessarily implied for the
     purposes of, or incident to, these express powers, and (3)
     those indispensable, and not merely convenient, to their
     objects and purposes; any substantial doubt about the
     existence of a power in a municipal corporation must be
     resolved against it.

2.   Municipal corporations -- city need not create operating commission in
     accordance with legislative requirements so long as commission remains
     agency of city. -- Under Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963), a public utilities commission may be
     created in accordance with statutory dictates, but,
     alternatively, a commission to operate the utilities may also
     be established as an agency of the city; a city, whether of
     the first or second class, need not create an operating
     commission in accordance with legislative requirements so long
     as the commission remains an agency of the city.
3.   Appeal & error -- burden on appellant to provide record and abstract
     sufficient for review. -- When the supreme court is unable to
     determine from the abstract what arguments were made to the
     trial court and the rulings of that court, it will not
     entertain those arguments on appeal; the burden is clearly
     placed on the appealing party to provide both a record and
     abstract sufficient for appellate review; there are seven
     justices of the supreme court and one record, and the court
     will not be placed in the position of having seven justices
     scour one record for pertinent information.


     Appeal from Crittenden Circuit Court; David Burnett, Judge;
affirmed.
     Mike Everett, for appellant.
     David C. Peeples, West Memphis City Att'y, for appellees.

     Robert L. Brown, Justice.
     On January 10, 1994, appellant Bob Cosgrove was elected to
serve as a member of the appellee West Memphis Public Utilities
Commission (Commission) by a majority vote of the West Memphis City
Council.  Shortly thereafter, appellee Keith Ingram, the mayor of
West Memphis, vetoed the election of Cosgrove.  The city council
subsequently defeated a motion to override the veto.  Cosgrove then
filed a second amended and substituted complaint seeking
declaratory and injunctive relief.  He requested that the chancery
court declare the veto exercised by the mayor to be invalid, and he
sought to enjoin the city council from filling his seat on the
Commission.  In the alternative, he prayed that the ordinance
creating the Commission (Ordinance No. 1069) be declared
unconstitutional because it was adopted without legislative
authority.
     On September 26, 1994, appellees moved for summary judgment
and contended that the mayor had the authority to veto the election
of Cosgrove and that Ordinance No. 1069 was valid.  On January 17,
1996, the circuit court entered an order granting summary judgment
and determined both that the mayor acted within his authority in
exercising the veto and that Ordinance No. 1069 properly
established the Commission as a valid agency of the City of West
Memphis.
     Cosgrove complains on appeal that the circuit court erred in
concluding that Ordinance No. 1069 properly established the
Commission as a valid agency of the City of West Memphis.  The
primary focus of Cosgrove's argument is his contention that the
city council enacted the ordinance without statutory authority and,
therefore, all actions taken by the Commission are of no effect. 
Thus, he is in the anomalous posture of urging this court to
declare invalid the Commission to which he was previously elected.
     We have stated the general law regarding powers of
municipalities as follows:
     [Cities] have no inherent powers and can exercise only
     (1) those expressly given them by the state through the
     constitution or by legislative grant, (2) those
     necessarily implied for the purposes of, or incident to,
     these express powers and (3) those indispensable (not
     merely convenient) to their objects and purposes.
City of Little Rock v. Raines, 241 Ark. 1071, 1078, 411 S.W.2d 486, 
491 (1967).  See also Brooks v. City of Benton, 308 Ark. 571, 826 S.W.2d 259 (1992); City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.2d 6 (1989).  Furthermore, "any substantial doubt about the
existence of a power in a municipal corporation must be resolved
against it."  City of Little Rock v. Cash, 277 Ark. 494, 501, 644 S.W.2d 229, 231 (1982), cert. denied, 462 U.S. 1111 (1983).  Armed
with our caselaw, Cosgrove argues that there is no statute which
authorizes the West Memphis City Council to create a public
utilities commission comparable to what was done by Ordinance No.
1069.
     Appellees parry Cosgrove's argument by emphasizing that the
City of West Memphis has been given the express authority to own
and operate public utilities.  See Ark. Code Ann.  14-54-701 & -
702 (1987); Ark. Code Ann.  14-200-106 (1987).  They further note
that the General Assembly has given cities permission to create
commissions for purposes of operating and managing public utilities
which they own.  See Ark. Code Ann.  14-201-101 to -129 (1987 &
Supp. 1995).  Nevertheless, according to the appellees this
authority is permissive, and a municipality is not required to
establish a commission in strict compliance with the municipal
code, should it decide merely to create an agency of that city. 
The appellees direct our attention to the following statute:
          Any city of the first class owning and operating
     either a waterworks and distribution system or electrical
     light plant and system, or both, may by appropriate
     action by its city council or other governing body create
     a commission pursuant to this subchapter for the purpose
     of operating and managing the waterworks and distribution
     system or electrical light plant and system or both.
Ark. Code Ann.  14-201-104(a)(1) (1987) (emphasis added).
     In support of their argument, appellees rely almost
exclusively on the case of Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963).  In Adams, certain taxpayers of the City of
Clarksville sued for injunctive relief against the Clarksville
Light and Water Company, arguing that the creating ordinance was
invalid and that it did not establish a valid commission because
the Commission failed to conform to statutory requirements.  The
chancery court, however, concluded that the ordinance created a
valid agency of the city and denied relief.  On appeal, this court
affirmed.  We first observed that the appellants contended that the
Act authorizing the Board of Public Utilities for Cities of the
Second Class had certain requirements for the board that were not
met by the city ordinance.  But we then held that the Act was not
mandatory: 
     Section 19-4001 simply provides that such a board may be
     created. Here, the citizens of Clarksville apparently did
     not desire to create the Board of Public Utilities, and
     the authority to operate the utilities, therefore
     remained in the City Council. We agree with the
     Chancellor, that in passing Ordinance 387, the city
     created an agency to operate the utilities heretofore
     mentioned. The city had the express statutory power to
     own and operate these utilities [Ark. Stat. Ann.  20-316
     (Repl. 1956)], and we have held that a City Council may
     designate agents to act, within the scope of their
     agency, on behalf of the city.  Jonesboro v. Montague,
     143 Ark. 13, 219 S.W. 309, Gladson v. Wilson, 196 Ark.
     996, 120 S.W.2d 732.
Adams v. Bryant, 236 Ark. at 862-63, 370 S.W.2d  at 435 (emphasis in
original).
     Hence, under this caselaw, it is apparent that a public
utilities commission may be created in accordance with statutory
dictates but that, alternatively, a commission to operate the
utilities may also be established as an agency of the city.  This
precedent is clear that a city need not create an operating
commission in accordance with legislative requirements so long as
the commission remains an agency of the city.  We further view
Adams v. Bryant, supra, to be pertinent authority whether the city
involved is a city of the second class as was involved in Adams or
a city of the first class such as we have in the case at hand. 
Compare Ark. Code Ann.  14-201-104(a)(1) & 14-201-302 (1987).
     Cosgrove urges as an ancillary point that Ordinance No. 1069
empowers the Commission to make purchases up to $25,000 without
confirmation by the city council and that this constitutes an
unlawful delegation of legislative authority.  He contends, as a
corollary to this argument, that under state law city councils
cannot spend more than $5,000 without complying with bidding
procedures.  See Ark. Code Ann.  14-58-303(b)(2)(A) (1987).
     We decline to reach this point and others made by Cosgrove in
an attempt to distinguish Adams v. Bryant, supra.  There is nothing
in the abstract of the record submitted by Cosgrove as part of his
brief on appeal that evidences that these precise arguments were
made to the circuit court.  When we are unable to determine from
the abstract what arguments were made to the trial court and the
rulings of that court, we will not entertain those arguments on
appeal.  See Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996);
Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dept., 324 Ark.
496, 922 S.W.2d 705 (1996); Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993).  In this respect, the burden is clearly placed
on the appealing party to provide both a record and abstract
sufficient for appellate review.  The policy behind this standard
has been stated as follows:
     While the issue or argument may be contained in a
     pleading or brief in the record, we have said many times
     that there are seven justices of the Supreme Court and
     one record, and we will not be placed in the position of
     having seven justices scour one record for pertinent
     information.  Kearney v. Committee on Prof. Conduct, 320
     Ark. 581, 897 S.W.2d 573 (1995); Stroud Crop, Inc. v.
     Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).
Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dept., 324 Ark.
at 503, 922 S.W.2d  at 708.
     Finally, the appellees have not questioned on appeal the
standing of Cosgrove to assert the invalidity of the Commission,
though his standing is somewhat unclear.  Because we affirm on
other grounds, there is no need for us to address this issue.  See
Blann v. Alcoholic Beverage Control Bd., 317 Ark. 97, 876 S.W.2d 259 (1994).
     Affirmed.