dissenting. The majority is applying Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986), retroactively, which I think is a mistake. Nothing in Bradley v. Bruce suggests that retroactive application was intended and we do not, as a rule, adopt that course. Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986);Solem v. Stumes, 465 U.S. 638 (1984); Cunningham v. State, 251 Ark. 277, 471 S.W.2d 777 (1971); Gross v. State, 246 Ark. 909, 440 S.W.2d 543 (1969); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 245 (1968); Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952); Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932); Johnson v. State, 248 Ark. 184, 450 S.W.2d 564 (1970); Ford v. King, 268 Ark. 128, 594 S.W.2d 227 (1980); Leffler v. Banks, 251 Ark. 277, 472 S.W.2d 110 (1971). That is often true even where basic constitutional rights are concerned. Johnson v. State, supra.
There is nothing to suggest that the El Dorado Civil Service Commission acted in bad faith in giving limited weight (10 points) to seniority on its civil service examinations. It had been doing that in both the police and fire departments for perhaps twenty years. All of the police and fire department personnel were fully aware of that fact and while seniority was discussed from time to time there was no objection to its use. The civil service statutes1 provide that promotion shall be based on open competitive examinations of “efficiency, character and conduct,” and it seems plain enough that efficiency and experience have a correlation. Efficiency is defined as the “ability to accomplish a job with a minimum expenditure of time and effort.”2 Hence, length of service, i.e., seniority, bears directly on efficiency. At least, it was not implausible for El Dorado, like North Little Rock and other cities, to give some deference to seniority. The trial court found that by so doing the commission acted in good faith and Dewayne Worth has not even argued otherwise. If there were any doubt on that point, the fact that the legislature (at the first opportunity following the decision in Bradley v. Bruce) expressly incorporated seniority into the language of the civil service statutes,3 is answer enough to a retroactive application.
The majority asserts that when litigants are treated identically a decision is not being applied retroactively. I have no quarrel with that assertion in the abstract, but the unmistakable fact is that in order for Dewayne Worth to prevail in this case, Bradley v. Bruce must be given retroactive operation. Worth joined the El Dorado Fire Department thirteen years ago and has never been uninformed as to the use of seniority in civil service examinations. Not once did he object. When the examination was again offered in the spring of 1985, he and five others took the examination, again with no objection to seniority. Jerry Thomas ranked first, Wesley Harper second and Dewayne Worth third. Had seniority not been used, Worth would have been second and Harper third by a fraction of a point. Worth continued to voice no objection when, in the ensuing months, Thomas and Harper were both promoted. Not until Bradley v. Bruce was decided, over a year after the examination he now challenges, did Worth first complain about seniority.
In contrast, Danny Bradley objected in writing to the use of seniority before the examination was given. When his objections were disregarded by the North Little Rock Civil Service Commission, Bradley filed suit against the commission and the City of North Little Rock to declare that seniority was not a permissible criterion for promotion under the civil service statutes. Bradley went further, however, and enjoined the implementation of the selection process so that no one was promoted until the litigation was successfully concluded. I believe Worth’s acquiescence in the testing procedures and the promotion of Harper without objection constituted a waiver of the arguments raised months later. “Every failure to assert a legal right at the proper time is a waiver of that right.” First National Bank of Post v. Republic Supply Co., 166 S.W.2d 373 (Texas Ct.App. 1942). Waiver and estoppel are intertwined and waiver may be inferred from conduct under the circumstances. Oliver v. Vishno, 2 Conn. Cir. Ct. 119, 196 A.2d 119 (1963); Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221 (1976). A failure to object at the first opportunity is a waiver of that right. First National Bank v. Republic Supply Co.
The majority declares that the Civil Service Commission has not changed its position to its detriment based on Worth’s failure to object. I disagree. There was testimony that individuals in both the police and fire departments had recently been promoted prior to the Bradley v. Bruce decision and the trial court made a finding that a retroactive application of the decision would be disruptive to the two departments. Moreover, there was proof that if Dewayne Worth is promoted to captain it would necessitate the demotion of Wesley Harper. Yet the reversal of this case entails both the retroactive promotion of Dewayne Worth and the payment to him of a captain’s salary retroactively to the tune of $4,703.22, as of March 4, 1988. By Worth’s failure to act, the City of El Dorado will thus have paid Harper a salary to which, under the majority’s view, he is not entitled, and the city must now pay that amount, plus prejudgment interest and attorney’s fees, to Worth. 1 submit the city did rely to its detriment on Worth’s acquiescence in the use of seniority. It might be noted, too, that Worth’s claim for back salary increases by his own delay. The longer he waits to challenge seniority short of the statute of limitations, the greater his claim. Waiver is a question of fact [Aclin v. Caplener, 229 Ark. 718, 318 S.W.2d 141 (1958); 31 C.J.S. Estoppel § 162 (1964)], and the trial court decided that issue adversely to Worth, yet the majority has disregarded that finding altogether.
Finally, if there were no other reason, the case should be affirmed because of a fatal non-joinder of parties. Worth has sought relief which can only be provided by the City of El Dorado, that is, either the demotion of Wesley Harper, or the creation of a new captaincy in the fire department, and a judgment for approximately $5,000. All of these render the city and Harper indispensable parties. Certainly Harper cannot be demoted by a suit to which he was not a party, nor can the civil service commission order the creation of a new position, or order the City of El Dorado to satisfy a judgment for back salary. Only the City of El Dorado can do that. All persons whose rights might be prejudiced by a determination of a controversy must be made parties to the action. Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865 (1950); Leola Lumber Co. v. Bozarth, 91 Ark. 10, 120 S.W.2d 152 (1909); Greer v. Mid-West National Fire & Casualty Insurance Co., 434 F.2d 215 (8th Cir. 1970); Order of Railway Conductors of America v. Gorman, 133 F.2d 273 (8th Cir. 1948).
The majority concedes that Worth cannot now amend, that his victory is “one of principle only.” Then why is this case being reversed? We do not render advisory opinions. Stafford v. City of Hot Springs, 276 Ark. 446, 637 S.W.2d 553 (1982). We held in Bradley v. Bruce that seniority was not proper under the then wording of the civil service statutes and adherence to that principle does not oblige us to reverse a case that should be affirmed because necessary parties were not joined. Moreover, there is authority for the view that a failure to join an indispensable party is jurisdictional. King v. King’s County Trust Co., 323 F. Supp. 640 (E.D.N.Y. 1970); Sowell v. Sowell, 212 Ga. 351, 92 S.E.2d 524 (1956); Connolley v. Great Basin Ins. Co., 6 Ariz. App. 280, 431 P.2d 921 (1967); Dillon v. Johnson, 322 A.2d 332 (Me. 1974); Huston v. Campanini, 464 Pa. 147, 346 A.2d 258 (1973). I would affirm the trial court.
Hickman, J., joins this dissent. Glaze, J., joins this dissent.Ark. Code Ann. §§ 14-51-102 et seq. (1987) [Ark. Stat. Ann. §§ 19-1601 et seq. (Repl. 1980)].
Random House Dictionary of the English Language, 2nd Edition Unabridged.
Act 276 of 1987.