dissenting. I respectfully disagree with the majority that Section 6 of Act 14 of 1987 is unconstitutional.1 The majority ignores a cardinal rule of appeal and error in addressing points not first presented to the trial court, but rather decides a constitutional question sua sponte. We have repeatedly declined to consider even constitutional issues which are not first presented to the trial court. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Pope County v. Street, 284 Ark. 416, 682 S.W.2d 749 (1985); Scottish Union & National Ins. Co. v. Wilson, 183 Ark. 860, 39 S.W.2d 303 (1931). And what of the attorney general? Ark. Code Ann. § 16-111-106 (1987) requires that the attorney general be given the opportunity to defend a statute against constitutional attack, and failure to do so is error. Prather v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).
The majority characterizes the constitutionality question as one of subject matter jurisdiction so as to provide this court with the proper avenue for raising this issue on our own. Although it is a well settled rule that subject matter jurisdiction may be raised for this first time on appeal, Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984), subject matter jurisdiction involves a court’s competence to hear a particular category of cases and the facts of this case involve the allocation of power. This appeal is from the orders of the probate judge. Surely the majority is not holding that orders of the probate court entered pursuant to Act 14 are rendered void by the retroactive operation of today’s holding. If so, I venture that will prove to be a difficult precedent to live with.
There is another compelling reason why the case should be affirmed. From the outset in 1984, the orders (and there are many, eighteen by actual count) were all signed by a referee or master and, following Act 14, were then approved by the probate judge. At no time until they reached this court did appellants ever object to the procedure or complain about the case being heard by a master or referee, or object that the master was exceeding his authority. No objection on any basis now argued on appeal appears throughout this entire record. The rule is almost universally recognized and followed that a party waives objection to the functioning of the master where not timely made. “If a party appears and participates in the taking of evidence before a master without objection, he cannot question the authority of the master to act, although the order or reference is defective or although no offer referring the case to the master has been entered.” Corpus Juris Secundum, Vol. 30A, § 531, p. 570. “If facts are known, parties are bound to make objections to disqualification of a master before issues are joined and before hearing commences, otherwise they will be deemed to have waived objection.” DeMoville v. Merchants & Farmers Bank, 186 So. 704 (Ala. 1939); Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198 (1912). Proctor v. Bank of New Hampshire, 123 N.H. 395, 464 A.2d 263 (1983); Nystrom v. Nystrom, 105 So.2d 605 (Fla. Dist. Ct. App. 1958).
Appellants also complain in this court that the master failed to comply with ARCP Rule 53(e) in that he did not submit a report. However, the appellants registered no such complaint before the trial court. The master announced his findings and conclusions at the end of the hearing and the final order was not entered until some three months later, thus, appellants had ample opportunity to file objections. No objection on this, or any other ground, was ever offered in the trial court.
The majority concludes that the case must be reversed because the participation of the juvenile master exceeded that authorized by law. The majority states the issue to be whether the probate judge appropriately reviewed the master’s findings, or merely co-signed a final order entered by the master. What is important is whether the judge recognized that the master’s findings were merely advisory and that he alone gave finality to the case. The appellants have not even attempted to show that the orders were not the final product of the probate judge. He approved each order and there is nothing to suggest he did not fully concur in them.
The majority states that “all masters and referees appointed to hear juvenile cases shall only submit recommendations to the probate judge.” In fact, § 6 of Act 14 of 1987 also provides that a referee or master so designated (to hear juvenile cases) shall also have “all the authority and power of the judges of their respective divisions.” Surely such power encompasses more than submitting mere recommendations. However, § 6 of Act 14 quite definitely prohibits masters or referees from issuing final orders. The legislature’s intent as to what constitutes the “issuance” of a “final” order may be gleened from the paragraph discussing the master’s ability to issue temporary orders. A temporary order issued by a master becomes a “final” order after receiving the judge’s approval and signature. Therefore, the essence of the issuance of a final order does not then turn on who drafted the order, but rather on who reviews, approves, and signs the order. Although the master drew up the order in this case, by signing the order the judge reviewed and approved such and thus issued the final order.
I do not see any objection to a statutory scheme providing for permanent masters, so long as a judge is the final arbiter. Masters have been recognized as a useful arm of the courts from an early date at common law.2 The ongoing demands of following the progress of a family involving dependent-neglected children through rehabilitative regimens are far better suited to a master or referee than to a judge. I find no authority cited in the majority opinion for this abrogation of legislative authority.
Therefore, I would affirm the probate judge’s orders.
Why Section 6 is singled out is not clear. The removal of Section 6 renders the act meaningless.
Beginning with the reign of Edward III. Cyclopedic Law Dictionary, 2d Edition.