Judges: WINSTON BRYANT, Attorney General
Filed Date: 2/23/1998
Status: Precedential
Modified Date: 7/5/2016
The Honorable Armil O. Curran State Representative 210 West Main Street Clarksville, Arkansas 72830-3010
Dear Representative Curran:
This is in response to your request for an opinion regarding the proper construction of Act 272 of 1997. That act requires certain water and sewer providers to obtain an annual audit of their operations. Specifically, the relevant portion of the act, now codified at A.C.A. §
(a) Any county, municipality, improvement district, or other entity receiving public funds or public grants that provides water or sewage services and having at least one hundred (100) service connections shall procure an annual financial audit of the system. [Emphasis added.]
The balance of the act requires a management letter, the employment of accountants, and the filing of the audit report and management letter with the Division of Legislative Audit. The act also states that "[a]ny entity not complying with [the act] shall not be eligible to receive any funding or grants flowing thorough agencies of the State of Arkansas." A.C.A. §
You two questions regarding this act are as follows:
1. Does the term "receiving public funds" include moneys paid by users to a water or sewer entity?
2. If the answer to No. 1 is "yes," is a water or sewer entity other than a county, municipality, or improvement district collecting user fees from private citizens or businesses, but not receiving funds or grants from a governmental entity, subject to the audit requirements of Act 272 of 1997?
You state that you sponsored House Bill 1583, which became Act 272 of 1997, and that it was your intent for the Act to apply to all water and sewer service providers collecting funds from the "public" and having at least one hundred (100) service connections. You state that the intent of the term "public funds" was to include any moneys collected from the general public users of the services.
The question posed for my opinion is whether this intent has been sufficiently expressed in the language employed in the act.
It has been stated that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intention of the legislature. Vanderpool v. Fidelity Ca. Ins. Co.,
When a question arises concerning applicability of a statute a decision can be reached only by applying some kind of a criterion. For the interpretation of statutes, `intent of the legislature' is the criterion that is most often recited. An overwhelming majority of judicial opinions considering statutory issues are written in the context of legislative intent. . . .
Whether legislative intent is a meaningful and valid concept for use as a criterion for deciding questions of statutory interpretation has been a classic subject of debate. Since intention is a mental state and only individual persons have minds, only an individual can have an intention. It follows then that the idea of a legislative intent must be regarded as fiction or a figure of speech. . . .
Such a large number of judicial opinions in cases involving issues of statutory interpretation are written in the context of `legislative intent' that it is not unfair to suggest that many judges may be unaware of the existence of other relevant alternatives for decision making. That there is indeed an alternative, was stated by Justice Holmes in his remark that `we do not inquire what the legislature meant; we ask only what the statute means. . . .' Courts have also supported the Holmes view. [Footnotes omitted.]
Arkansas courts have at least adopted the view that where the language of a statute is plain and unambiguous, a search for the legislative intent is not to be undertaken. Pugh v. St. Paul Fire Marine Ins. Co.,
At issue, therefore, is whether the pertinent section of Act 272 is plain and unambiguous, or whether there is an ambiguity in the act which would authorize a court to engage in a search for the legislative intent. In determining legislative intent, a court will look to a statute's language, subject matter, object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that throw light on the subject. Bryant v. McLeod,
The pertinent section of the statute states that: "Any county, municipality, improvement district, or other entity receiving public funds or public grants that provides water or sewage services and having at least one hundred (100) service connections shall procure an annual audit. . . ." In my opinion the plain meaning of the language "receiving public funds or public grants" means receiving moneys belonging to the government, and cannot, on its face, be interpreted to refer to moneys received from individual customers or members of the water or sewer associations.
In Sebastian County Chapter of the American Red Cross v. Weatherford,
In analyzing the language of the pertinent statutory provision, it is clear that the first pertinent phrase requires an audit of any county, municipality, or improvement district water or sewer provider. See, e.g., Op. Att'y Gen.
There is another reason for reaching the same conclusion. A common rule of statutory construction is to give effect to each word of the legislature, so that no language is reduced to surplusage. See Locke v.Cook,
In addition, a reading of the statue as a whole, in conjunction with the remedy provided for noncompliance, lends to the conclusion that the statute on its face applies to service providers which are in receipt of "public funds" as that term has been judicially defined. The remedy for noncompliance with the audit requirement is that the entity "shall not be eligible to receive any funding or grants flowing through agencies of the State of Arkansas."
I am not insensitive to the legislative aims or intent underlying Act 272. My duty in rendering an official opinion on the matter, however, is to predict what a court of competent jurisdiction would hold on the question. Applying the established rules of statutory construction, as a court would undoubtedly do, it is my opinion that the language of the statute is too plain on its face to admit of any other construction than that expressed by its content. It is unfortunate if the legislative intent may have been otherwise, but that intent must be expressed adequately, in accordance with judicial precedent, to be given effect.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh
Vanderpool v. Fidelity & Casualty Insurance , 327 Ark. 407 ( 1997 )
Omega Tube & Conduit Corp. v. Maples , 312 Ark. 489 ( 1993 )
Graham v. Forrest City Housing Authority , 304 Ark. 632 ( 1991 )
Wooten v. State , 325 Ark. 510 ( 1996 )
Pugh v. St. Paul Fire & Marine Insurance , 317 Ark. 304 ( 1994 )
Locke v. Cook , 245 Ark. 787 ( 1968 )