concurring.
I agree that we should affirm the dismissal of Mr. McCafferty’s lawsuit, but my reasoning is different from the majority’s. I believe, as a general principle, that Mr. McCafferty had the authority as a citizen and a taxpayer to challenge unlawful use of public money. His lawsuit was not sustainable because of the relief that he sought and the party from whom he sought relief.
In his complaint, Mr. McCafferty asserted that Oxford American received an “ultra- vires -transfer of UCA funds” and prayed that $700,000- be paid by Oxford American “to the State Treasurer.” The requested remedy ignored the fact that the funds in question did not originate from the State Treasury. Accordingly, the case before us is analogous to Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001). .
In Chapman this court affirmed ' the grant of summary judgment that resulted in the dismissal of a public-funds lawsuit on a slightly different basis than found by the circuit court. Chapman sued homeowners whose dwellings had been refurbished through a federal program that was administered by the pity of Fort- Smith. Id. She sought to have the money placed in the city’s general fund, despite the fact that it did not originate there. Id. The funds had always been administered separately and never commingled. Accordingly, this 110court held that Chapman did not have standing as a taxpayer to recover the funds for the city’s general fund. Id. Nonetheless, this 1 court held that even though Chapman had no standing as a taxpayer to reach the funds that had been dispersed, he did have standing to challenge the misuse of the public funds that could be traced to paying the salaries of the municipal employees -who he alleged were • dispersing the federal funds. Id.
A taxpayer has the right to maintain a cause of action for an illegal exaction in a public-funds case based on the theory that he or she is the equitable owner of the funds in question. Farrell v. Oliver, 146 Ark. 699, 226 S.W. 529 (1921), ■ In his complaint, Mr. -McCafferty averred only that he was a resident of Garland County, Arkansas, and. a taxpayer to the State of Arkansas. ‘ It is not disputed that the cash funds at issue did not originate from the State Treasury. Therefore, Mr. McCafferty, like Chapman, did not have standing to act on behalf of similarly situated taxpayers who likewise had no authority to “protect” against the expenditure solely in their capacity as taxpayers. Id, While I decline to speculate as to who may have an equitable interest in the public funds in question, it is clear that Mr. - McCafferty does not. In my view, it is necessary to make this distinction; otherwise, our opinion today could be seen as a bright-line rule that citizens are limited to only being able to challenge direct appropriations under article 16, section 13 of the Arkansas Constitution. ,
Furthermore, because this is not- a simple case involving misuse of tax money, Mr. McCafferty’s lawsuit should also been dismissed due to his failure to join necessary parties under Rule 19 of the. Arkansas Rules of Civil Procedure. Mr. McCafferty did not allege that Oxford American did anything illegal with the funds that it received from UCA or even that the money was not well spent. Cf. Nelson v. Berry Petroleum Co., 242 Ark. 273, 11413 S.W.2d 46 (1967). Accordingly, at a minimum, the Board of Trustees of UCA were necessary parties.
Finally, I wish to dispel the notion that our decision today leaves citizens without a remedy when public officials misuse public money, This court has stated, . ■
There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, or which constitute a violation of their official duty, whenever the'" execution of such acts would cause irreparable injury, to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which we would have no adequate remedy at law.
Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 302, 954 S.W.2d 221, 224 (1997) (quoting Jensen v. Radio Broad. Co., Inc., 208 Ark. 517, -520, 186 S.W.2d 931, 932 (1945)). Contrary to Mr. McCafferty’s assertions, this remedy has been consistently recognized by the courts of this state. See Gipson v. Ingram, 215 Ark. 812,223 S.W.2d 595 (1949).
I concur.