concurring. I agree with the stice, fees from the zoo, fitness center, and golf courses can be pledged to retire the Clinton Presidential Park revenue bonds under Amendment 65. The second point raised by Ms. Harris is more difficult.
Lurking behind the whole issue of pledging park user fees to retire these revenue bonds is whether tax money in the form of the City’s general fund is, in reality, paying off the bonds. A vote of the people is necessary when the general fund is obligated for bonded indebtedness. Both the City and Nora Harris agree that if the general fond is used for this purpose, this violates Amendment 65 and an election would be necessary. Where they disagree is on whether the shuffling of dollars by the City transforms the bond issue into one supported by tax dollars. City Attorney Tom Carpenter posited at oral argument before this court that any general fund subsidy was permissible. That is the critical issue raised by Ms. Harris.
Based on the record before us, this court cannot determine the extent to which the City’s general fond is subsidizing the zoo, fitness center, and golf courses as a result of the pledge of user fees, if at all. Indeed, City Manager Cy Carney and City Parks Director Bryan Day adroitly skirted the issue when asked at the hearing on June 15, 1999, about the general fund subsidy. First, Mr. Carney:
Harris Attorney: Did you say, “All parks revenue including zoo admissions are pledged to the debt for the life of the bonds with the City board to review this year how to replace that money,” did you say that?
Carney: I believe I said something to that effect.
Harris Attorney: So how much money is the City board going to have to look for to replace in zoo, golf course and fitness center operations in order to meet the debt service?
CARNEY: The City will have to either have additional revenue to replace that amount or reduce City operations to save dollars, in other words reduce expenses to the amount of each year’s of debt service, principal and interest based on each year’s schedule of payments.
HARRIS Attorney: Okay. What operations are you going to reduce in order to obtain the money to replace the funds from golf, zoo and fitness center revenues?
Mr. Carpenter (City Attorney): Objection. Calls for speculation of the witness and, also, this witness is not qualified to answer that question since it’s a legislative question for the board of directors.
....
HARRIS Attorney: All right. Now, as I understand the process then, what savings you made in personnel and what savings you made with programs would make more money available to be applied to this money that’s been pledged to the bond issue in order to keep the parks, the zoo, the golf course, those facilities operating. Is that correct?
Carney: These actions I described would help me deliver to the city board a recommendation that would be a balanced budget for the year 2000, yes.
Harris Attorney: But those savings would help, as you said, replace that money. Is that correct?
Carney: Replace lost revenues, yes.
Harris Attorney: And the lost revenues being those pledged to the bond issue?
Carney: A part of lost revenues. Of course, there are other lost revenues in the City budget related to other items other than this particular bond issue.
Then, there was Mr. Day:
HARRIS Attorney: So when you pledged the income from those facilities to something else other than this enterprise fund that helps cover the overhead out there, you automatically increase the general fund obligation to pay salaries, don’t you?
Mr. Carpenter (City Attorney): Objection, Your Honor, again it goes back to the speculation issue given Mr. Carney’s testimony. We don’t know, because it assumes that there will be no changes otherwise. The hypothetical is too broad. He says if we do this, this happens, and that assumes that there is a static, non-changing circumstance, and that’s speculation.
The Court: Well, I believe the witness can answer. Overruled.
DAY: I’m sorry, would you repeat your question:
HARRIS Attorney: Yes. When I pay the salaries for all of those people we talked about out of the general fund, and I take the revenue that’s generated by their activities and I quit putting it in the general fund and I pledge it over someplace else, but I keep paying salaries, then I have increased the general fund expenditures for salary, because I don’t have any revenue to offset it, haven’t I?
DAY: As I understand the question, that is correct, yes.
Harris Attorney: Pass the witness.
Mr. Carpenter (City Attorney): May I ask from here, Your Honor?
The Court: Yes.
Redirect Examination
Mr. Carpenter (City Attorney): And if you increase the fees again, then you have no impact on the general fund?
Day: That is correct.
Mr. Carpenter (City Attorney): Nothing further.
Harris Attorney: Okay.
Ms. Harris offered no other proof to show that a general fund subsidy was occurring but merely relied on the City’s future projections of needed revenue. We are bound by the record in this appeal and cannot go outside it. Until we know the answer to the subsidy question, we are simply jousting in the dark on whether Amendment 65 has been violated.
I write, however, to emphasize that the question of the general fund subsidy is left open for judicial determination at a later time. Stated differently, in my judgment the doctrine of res judicata would not foreclose future resolution of this point. My reason for concluding as I do is that the issue of the general fund subsidy could not have been litigated at the first trial because city officials (Mr. Carney and Mr. Day) never acknowledged that the general fund would subsidize the affected park facilities to the extent of the debt service and no other proof was offered by Ms. Harris on this point. Because this issue was not one that could have been decided in the first trial, res judicata does not prevent a later determination. See Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000); Baltz v. Security Bank of Paragould, 272 Ark. 302, 613 S.W.2d 833 (1981).
The case of Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999), bears some similarities to the facts in this case but does not meet the subsidy issue head on or resolve it. The Rankin case involved a commingling of garage fees, parking meter revenues, and general fund dollars in the Parking Facilities Fund which was used to pay off revenue bonds issued to build the parking garage. Garage fees and other parking fees were pledged to pay off the bonded indebtedness. The general fund was used to subsidize maintenance and operations at the parking garage. We held in that case that the general fund was not being used to pay the bond indebtedness directly because city financial statements showed that the garage fees and other parking fees were sufficient to meet the debt service. The question never raised to, or addressed by, this court in Rankin was whether the general fund was being used indirectly to meet the bonds’ debt service in light of the fact that tax dollars were replacing garage fees and parking revenues diverted from the maintenance and operation of that facility. That is the crucial issue that looms before us in the Nora Harris lawsuit and remains to be answered.
As the majority, Justice IMBER, and Special Justice KLAP-PENBACH all point out in their respective opinions, the overarching question in all this is how the city will fill the gaps in revenue at the zoo, fitness center, and golf course necessitated by the pledge of the user fees. The City has been shoring up operations significantly at these facilities with general fund dollars in recent years. It, therefore, stands to reason that any diversion of user fees which formerly had been used for the maintenance and operation of these facilities, would now have to be replaced, dollar-for-dollar, by the general fund. And if that indeed is the case, why is this not an example of the City doing indirectly what it could not do directly, as the majority opinion suggests? See Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993) (the Pulaski County Quorum Court could not transfer funding for running the county jail from the sheriff to the county judge and thus do indirectly what constitution .prohibited it from doing direcdy); Campbell v. Ford, 244 Ark. 1141, 428 S.W.2d 262 (1968) (city cannot divert dedicated street to an unauthorized use by inaction when it could not do so by affirmative action).
In short, the interplay between the pledged user fees and the general fund subsidy was not sufficiently developed at trial for this court to make an informed decision. As the majority opinion correctly holds, it would require speculation on our part to reach this issue. For these reasons, I concur.