dissenting. I wholly agree with the dissent filed in this case by the Chief Justice but feel compelled to emphasize my disagreement with the majority’s decison. The result in this case was probably not expected by either of the parties to this litigation. At least there is no evidence of that fact. Nor is it likely that the proponents of the legislation foresaw the possible distorted results that could be caused by their deeds. But the result to be reached should be the least concern to this court. It is not the end that should concern this court but the means used to arrive at the end result. To do otherwise is to commit that unpardonable sin of “legislating.”
The only issue is whether Act 311, passed in 1971, is still the law. It has not been repealed by any subsequent Act. Neither Act relied upon by the City of North Little Rock can replace it by implication because those Acts do not grant any retiree a pension, they only permit a city to pass an ordinance allowing a pension. Those are two separate and distinct propositions. Act 311 granted a pension we cannot void. Only the General Assembly can change that Act.
The confusing legislation that exists regarding the retirement benefits to be granted to mayors of first class cities was probably caused by two things: The approach that the General Assembly takes in such matters, and the failure of the cities to monitor and police legislation that affects them.
Neither party raised the question of whether any of this legislation was local or special in violation of ARK. CONST, amend. XIV. Therefore, we cannot consider that question. The Acts may or may not be local or special, but a cursory review of the Acts strongly indicates that they were drafted with someone in mind. References to a city of over 50,000 population, and a city of 35,000 people or more located in a National Park, are not subtle references. That approach to legislation, coupled with the fact that the state will not have to pay any pensions, can only result in inequities and distorted results.
Nor are the cities without fault in such matters. Standing by and permitting such legislation on the assurance that it will cause no mischief, is not merely innocence, it is complicity. Cities should, most of all, monitor and police legislation that affects them. What may appear harmless and “local” today, may rise up and bite tomorrow.
It is my respectful judgment that in this case the majority has decided the end that should be reached and fashioned the law to justify that decision. Those good intentions will, in my judgment, cause more harm than the majority envisions. That is true because what the majority has done is decide that Act 486 of 1975 and Act 819 of 1977 grant to any retired mayor a retirement benefit. That is entirely wrong because Act 486 is permissive, it only permits a city to pass an ordinance allowing a mayor to draw a pension. The majority’s opinion voids those two provisions in Act 486 that make it clear such pensions are permissive.1 Now any retired mayor of a first class city has an absolute right to draw a pension whether the city has decided it can afford it or not.
I respectfully dissent.
“Provided however, that the provisions of this Act shall be permissive, and cities of the first class may establish retirement system for mayors of such cities in accord with the provisions of this Act.” Section 1 of Act 486 of 1975.
“The governing body of any city of the first class in this State may, upon adoption of an ordinance therefor, establish a retirement system for the mayor of such city in accordance with the provisions of this Act.” Section 3 of Act 486 of 1975.