dissenting. In 1969, in the aftermath of Parrish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), the General Assembly enacted Act 165 of 1969, now codified at Ark. Code Ann. § 21-9-301 (Supp. 1993). That Act was later amended by Act 542 of 1991 and Act 292 of 1993. It now reads:
It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability and from suit for damages, except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees. (Emphasis added.)
The reasoning behind Act 165 was expressed in its Emergency Clause in 1969:
SECTION 4. It is hereby found and determined by the General Assembly that because of the decision of the Arkansas Supreme Court in Parish v. Pitts, 244 Ark. 1239, municipalities and all units of local government are in imminent danger of bankruptcy because of tort lawsuits and vital public services are in danger of being discontinued. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary to protect the public peace, health and safety, shall take effect immediately on its passage and approval.
The pivotal question in the case at hand is whether the Conway Corporation, with the exclusive franchise to operate the City’s electric system, was an agent of the municipal corporation so to be exempt from a tort action under § 21-9-301. I conclude, to the extent it operates as a utility commission, it is an agent of the City.
In a case decided by this court in 1989, we stated with regard to the same Conway Corporation:
Although the Conway Corporation is not, strictly in name, a utility commission, that is what it is; it performs the same duties as a commission in managing and operating a municipal waterworks. See Ark. Code Ann. § 14-234-306 (1987).
Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 230, 782 S.W.2d 36, 39 (1989). We declined in that case to reach the issue of whether it was exempt from liability under § 21-9-301.
In Paragould Cablevision, Inc. v. City of Paragould, 305 Ark. 476, 809 S.W.2d 688 (1991), we acknowledged that the Paragould Water and Light Commission which was endowed by the City of Paragould with the authority to acquire and operate a cable television system was an agent of the City. In an earlier case, Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963)), we stated that the City Light and Water Commission was an agent of the City of Clarksville. We noted that the City had the power to operate and maintain certain utilities by statute [now codified at Ark. Code Ann. § 14-91-402 (1987)] and that the City could designate its agent to carry out executive and administrative functions with respect to those utilities. Here, Conway Corporation is vested by the City of Conway with the authority to provide electrical service to the residents of that City. Operating in that capacity, it is no less an agent of the City than the Paragould Water and Light Commission or the City Light and Water Corporation in Clarksville.
Act 165, as amended, is clear and the status of Conway Corporation is clear. As an agent of the City, I would hold that Conway Corporation falls under the umbrella exemption from tort action set out in § 21-9-301.
I respectfully dissent.