text:
    Larry WILLIAMS et al v. STATE of Arkansas
    5786
    490 S.W. 2d 117
    Opinion delivered February 12, 1973

      John W. Walker and Richard L. Mays, for appellants.

      Ray Thornton, Atty. Gen., by: Kirby Smith III, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants were found guilty of refusal to assist an officer in violation of Ark. Stat. Ann. § 42-204 (Reel. 1964) and resisting an officer in violation of Ark. Stat. Ann. J 41-2801 (Repl. 1964). They contend that Ark. Stat. Ann. § 42-204 is void on its face, and as applied, in that it offends the Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the United States Constitution and that the evidence is not sufficient to show a violation of Ark. Stat. Ann. § 41-2801. We do not agree with either argument.

As will be noted, the appellants have assaulted § 42-204 by firing a blunderbuss. Some of their arguments seem vague and illusional, but we shall treat them as best we can. The statute reads:

Every person commanded by a public officer to assist him in the execution of process, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor and contempt of the court from which the process issued.

Since this contention relates, in part, to the application of the statute in this particular case, we must review the pertinent evidence in the light most favorable to the state. A Little Rock policeman named Haggard went to the residence of Patricia Ann Smith on November 11, 1971, for the purpose of arresting her on a shoplifting charge on a warrant issued by the Municipal Court of Little Rock. Haggard had attempted to serve the warrant previously, but the woman had run out the back door when he approached the house from the front. The officer had information that Mrs. Smith was at home upon the date of his second effort to make the arrest. He had called for assistance from other officers who were patrolling in the vicinity, so that another officer could watch the back door. When he was unable to locate another nearby officer who was not then occupied on other assignments, he saw the two defendants passing and called them over to his patrol car, in which he, in full uniform, was then seated. Haggard testified that he then explained that he was a police officer, exhibited the warrant to them, stating the charge upon which it was issued and sought their assistance in watching the back door of the house and calling out to him if the occupant of the house started out the back door. Haggard said that appellants both profanely stated that they would not assist a police officer at any time or place, and would not help him if he were lying in the street dying. According to the officer, he explained that there was both a state law and a city ordinance requiring a private citizen to aid a police officer upon the officer’s request and that refusal to do so subjected the citizen to arrest for a misdemeanor. Haggard further testified that both appellants then used profane language and started walking away, and he informed them that they were under arrest for refusing to aid a police officer. He related that when they continued to walk away he repeated his statement that they were under arrest, walked up behind the appellants, laid his hands upon their shoulders preparatory to using the force necessary to make the arrest, again told them they were under arrest and that he would have to take them to police headquarters, but that they knocked his hands off their shoulders and continued walking away, so he pulled his pistol out, held it beside him and pushed appellants toward his patrol car, at which time another police officer stopped and stood by while he completed the arrest. Haggard testified that a companion of the appellants was not arrested because his assistance was not sought.

Williams testified that he neither cursed nor resisted the officer and that he did not know what the paper Haggard exhibited was, but admitted that he knew that Haggard had previously experienced trouble in making the arrest, that he had seen the officer watching shoplifters at a store, and that he had refused to assist Haggard, telling the officer that that was not Williams’ job and that Haggard was being paid for doing this job. Williams denied that the officer had advised him that his refusal constituted a violation of state law before their arrival at the jail. He stated that he was afraid the woman might shoot him.

Hooks said that he declined to assist and told the officer that this was not his (Hooks’) job and expressed fear that he might be shot and doubt that anything would or could be done about it. Hooks denied that the officer showed him a warrant or told him that his refusal to aid would be a violation of the law.

The posse comitatus has an ancient history. It has been defined as the power or force of the county, consisting of the entire population of the county over the age of 15, which a sheriff may summon to his assistance in certain cases, such as keeping the peace, pursuing and arresting felons, etc. Black’s Law Dictionary, Fourth Edition, p. 1324. Its origins are believed to lie in the preconquest English statute of “hue and cry,” a method then recognized for issuing and enforcing process to bring one committing a crime before the courts, under which one who came upon evidence of a crime was himself guilty of an offense if he failed to raise the “hue” to call out the neighbors to turn out with weapons they were bound to keep. See II History of English Law, Pollock 8c Maitland, Second Edition, 578, et seq.; Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928). From this practice, the right of the sheriff to call up the local male population to arrest criminals or prevent riots evolved, and became known as the posse comitatus, which in effect was a civil army to be used by the sheriff for these purposes, among others. Lorence, The Constitutionality of the Posse Comitatus Act, 8 U.M.K.C.L. Rev. 164 (1940). Refusal to render the aid sought by the sheriff was an offense punishable by fine and imprisonment. Commonwealth v. Martin, 7 Pa. Dist. Rep. 219 (1897); Annot. 44 Am. St. Rep. 136 (1895). See also, 4 Wharton’s Criminal Law & Procedure (Anderson) 223, Arrest § 1582.

The criminal nature of refusal to aid an officer in the execution of his duties was recognized in Regina v. Brown, 41 Eng. Common Law Reports 175 (1841). A constable, acting upon information he had received, discovered an illegal prize fight in progress but, being unable to arrest the participants without a warrant, charged Brown to assist him. It was there said that one duly called upon to render such assistance was not excused except for physical impossibility or lawful excuse. This case has been followed in many American cases, and the practice has been utilized in law enforcement throughout the history of this country, although the necessity for aid to law enforcement officers may have diminished over the years. See Annot., 44 Am. St. Rep. 136 (1895); Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847); Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928); 4 Wharton’s Criminal Law & Procedure (Anderson) 223, Arrest § 1582. In Babington, a police officer jumped on the running board of a cab and ordered the driver to chase another cab in order that its driver might be arrested. In determining the duty of the driver in these circumstances the court relied upon an 1848 New York statute strikingly similar to Ark. Stat. Ann. § 42-204 and reviewed the history of the duty of citizens in such cases. Mr. Justice Cardozo, speaking for the court, said:

The horse has yielded to the motorcar as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver’s seat. In sending Babington upon the highway, it knew or is chargeable with knowledge that man and car alike would have to answer to the call.

Without further elaboration, it is sufficient to say that Ark. Stat. Ann. § 42-204 is, at most, an extension of the common law concept of posse comitatus, if not merely a codification thereof. Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847). See also, Robinson v. State, 93 Ga. 77, 18 S.E. 1018, 44 Am. St. Rep. 127 (1893).

In Wharton’s Criminal Law 8c Procedure (Anderson), Vol. 4, p. 223, Arrest § 1582, the author states, categorically, but with citation of authorities from five jurisdictions, that every citizen is bound to assist a known public officer in making an arrest, when called upon to do so. He adds, also citing authorities, that any police officer, instead of organizing a formal posse comitatus, may, when he deems it necessary to effect an arrest, summon any bystander to his assistance. See also, 47 Am. Jur. 847, Sheriffs, Police and Constables, § 36; 6 C.J.S. 616, Arrest § 16.

We are unaware of any attack upon the posse comitatus or the statutory enactments pertaining to the use of the power upon constitutional grounds in the history of this country. Not only is there a presumption favoring validity of any statute, every reasonable doubt is resolved in favor of its constitutionality, and the fact that a statute has been in effect over a long period of time without its validity having been questioned, while not conclusive, is highly persuasive of its constitutional validity. Poole v. State, 244 Ark. 1222, 428 S.W.2d 628; McEachin v. Martin, 193 Ark. 787, 102 S.W.2d 864. See also, Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098. This statute was a part of our Criminal Code, which became effective in 1869. Surely if such statutes as this were in violation of federal constitutional provisions, the thought would have long since occurred to the eminent legal scholars and jurists who have treated the subject.

As we understand appellants’ arguments, they say that the act and its application to them violates the Fourth and Fifth Amendments because (1) they were unlawfully seized for undefined police purposes, (2) there was an invasion by the government of their right of privacy, (3) the officer acted arbitrarily because there was no emergency, and service of the warrant on the misdemeanor charge could have been deferred, the aid of another nearby person was not even enlisted, no other officer was brought by Haggard to assist him, and because the officer could have obtained a court order to effectuate his purpose. We do not hesitate to say that we find no evidence that Officer Haggard acted arbitrarily or recklessly in the premises. He wanted help, he said, because the woman had previously fled, but he did not want to break down the door to effect an arrest of a woman when there were three small children in the house. He only asked that he be warned if she left by the back door. We find no basis for these arguments.

Appellants simply state that the Eighth Amendment is a prohibition against cruel and unusual punishment. We are uncertain whether they contend that the officer’s calling upon them to assist was in and of itself cruel or unusual punishment or their punishment by a $25 fine and sentence of 10 days’ imprisonment (to be suspended upon payment of the fine) on this charge was cruel and unusual. Nor do we find that the punishment of appellants for “doing nothing” as they put it, in response to the officer’s call, is so offensive to a sense of fairness and justice as to be invalid. In any event, we find no violation of this constitutional provision.

We likewise find no merit in appellants’ argument that their right to privacy (or “to be let alone”) and to freedom of possession and control of their respective persons, free and clear of restraint or interference, unless by clear and unquestionable authority of law, guaranteed by the Ninth Amendment, was invaded. In the first place, any interference with their freedom has been demonstrated to have been by clear and unquestionable authority of law and, in the next, we find no invasion of privacy.

The rejection of the argument, that the statute requires involuntary servitude by requiring one to do police work without compensation or other benefits of employment, requires no discussion, except to say that surely the responsibilities of a citizen in this republic have not been so diminished and diluted that such a theory can be viewed as having any substance whatever. We cannot see how the possible exposure to danger can be seriously advanced as indicative of involuntary servitude, as suggested by appellants.

It is no defense to a charge of refusal to render aid that the efforts of the person summoned would have been ineffective or unavailing, that obedience involved danger, or that the aid of the citizen called upon was unnecessary, unless the discretion of the officer invoking the aid was recklessly exercised. Annot., 44 Am. St. Rep. 137 (1893); Dougherty v. State, 106 Ala. 63, 17 So. 393 (1895).

The Fourteenth Amendment is invoked by appellants on the basis that their liberty was taken at the whim of the police officer rather than by due process pursuant to specific, definable standards. They advance the same premises for this contention as they advanced in connection with their assertions with reference to alleged violations of Amendments Four and Five. Let it first be said that the standards for action are adequately prescribed in Ark. Stat. Ann. § 42-202 (Repl. 1964) which authorizes the enlistment of aid in the execution of process when a public officer finds, or has reason to apprehend, that resistance will be made to its execution. Resistance, for the purposes of the statute, need not be by active means. Annot., 44 Am. St. Rep. 136 (1893). It is true that the statute permits the exercise of discretion by the officer and this is in keeping with the history of the posse comitatus and is certainly a necessary feature for its effective and appropriate use. As previously indicated, we do not think that this discretion can be exercised arbitrarily, nor do we find that it was in this case. The argument that the failure to summon another bystander deprived appellants of due process and rendered the officer’s resort to the statute unconstitutionally discriminatory is unsound. The statute authorizes the officer to command as many persons as he may think proper to assist him. There certainly could have been no necessity that would have required more than the two summoned by the officer to watch the back door and advise the policeman at the front if a woman came out. There is nothing in the record to indicate that there was an arbitrary discrimination against appellants in the officer’s exercise of his discretion. We will assume, in the absence of evidence to the contrary, that an officer acted lawfully and properly in the performance of his duty. Arkansas Pollution Control Commission v. Coyne, 252 Ark. 792, 481 S.W. 2d 322.

Appellants’ arguments, considered both singly and collectively, are not adequate to justify our holding the act unconstitutional, particularly in view of the long period of time during which this act and others in other jurisdictions have been in effect without constitutional attack and the long history of application of the common law in this country.

Appellants also argue that there was not sufficient evidence of a violation of Ark. Stat. Ann. § 41-2801, because (1) they were not the subject of any writ, warrant or process or of any order or rule of court and (2) there was no suggestion that they were held to answer for any legal process. In advancing this argument, they assert that active rather than passive resistance is a necessary element of the crime and that there is no violation of this statute unless force was used to prevent the officer’s execution of the warrant in his possession. They continue by asserting that the evidence failed to establish that any resistance or obstruction to the officer’s service of the shoplifting warrant was made or threatened by them. Appellants have totally misconstrued these charges or we totally misunderstand them. We understand that the charges of resisting arrest relate to the resistance offered by them to their own warrantless arrest for refusal to obey the officer’s command to assist him in the service of the shoplifting warrant, not resistance to the service of the warrant.

Section 41-2801 applies to knowing and wilful obstruction or resistance of an officer in the discharge of any official duty, one of which is a proper arrest without a warrant. State v. Embrey, 135 Ark. 262, 204 S.W. 1139. See also, Stuart v. State, 222 Ark. 102, 257 S.W.2d 372. The policeman had the duty and authority to make an arrest for a misdemeanor committed in his presence. Meyers v. State, 253 Ark. 38 (1972), 484 S.W. 2d 334. If his testimony is to be believed, appellants violated Ark. Stat. Ann. § 42-204 in his presence. Consequently, resistance to, or obstruction of, the officer in performance of this duty constituted a violation of Ark. Stat. Ann. § 41-2801. The evidence was sufficient in this case to sustain a conviction. Any means employed by one charged with this offense, whether by threats, intimidations, or any other act wilfully done with intent to deter, hinder or prevent an officer from the performance of his duty constitutes a violation of this statute. Reed v. State, 103 Ark. 391, 147 S.W. 76; Ann. Cas. 1914B 811; Appling v. State, 95 Ark. 185, 128 S.W. 866, 28 L.R.A.(n.s.) 548. The officer’s testimony told of such actions on the part of appellants.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Marion Howard STILLINGER et al v. Sam B. RECTOR et al
    5-6188
    490 S.W. 2d 109
    Opinion delivered February 12, 1973

      Thomas A. Glaze, for appellants.

      Olmstead ir McSpadden, for appellees.
   J. Fred Jones, Justice.

The appellants and the appellees attempted to oppose each other as independent candidates for the various municipal offices to be filled in the town of Greers Ferry at the general election on November 7, 1972. The litigation was commenced when the appellants sought to enjoin the election commissioners from placing the appellees’ names on the election ballots. The appellants alleged that they were the duly qualified independent candidates for the offices involved, and that the appellees were not so qualified because they had failed to file their political practice pledges with the county clerk within the time provided by law (§ 3, Act 42 of 1972).

The appellees answered by general denial and counterclaimed with similar allegations and prayer for relief. The trial court held § 3 of Act 42 to be directory rather than mandatory. He found that the appellants had properly qualified as independent candidates and had filed their pledges within the time and manner provided by law. He also found that the appellees had substantially complied with the provisions of Act 42 of 1972. The appellants’ complaint was dismissed and the commissioners were directed to place the appellees’ names as candidates on the general election ballots.

On appeal to this court the appellants contend that the trial court erred in holding § 3 of Act 42 to be directory rather than mandatory and the appellees contend on cross-appeal that if the appellants are correct in their contentions, then the appellants are also barred as candidates in the general election because they are not familiar with the political practices act as they stated in their pledges.

Act 42 of 1972 is entitled “An Act To Amend Subsection (c) of Section 5 Of Article 1 of Act 465 of 1969, As Amended, (Ark. Stats. Section 3-105 (c) To Clarify The Election Law With Respect To The Procedure To Be Followed In Qualifying As An Independent Candidate For Municipal Office; And For Other Purposes.” Section 1 of the Act provides that “independent candidates for municipal office may qualify by petition of not less than ten (10) nor more than fifty (50) electors of the ward or city in which the election is to be held. ...” Section 2 of the Act provides, “independent candidates for municipal office shall file their petitions of nomination with the County Board of Election Commissioners not less than forty-five (45) days before the General Election,” and section 3 provides as follows: “Independent candidates for municipal office shall file their political practices pledges with the County Clerk of the County not less than forty-five (45) days before the General Election.” (Emphasis added).

Prior to the passage of Act 42 of 1972, Ark. Stat. Ann. § 3-1103 (Supp. 1971) provided in part as follows:

“. . . candidates for county, municipal, or township offices shall file with the county clerk of the county, not later than 12 o’clock noon on the third (3rd) Tuesday of June, before the preferential primary election, a pledge in writing stating that he is familiar with the requirements of this Article [§§ 3-1101 — 3-1108] and will, in good faith, comply with its terms. Provided, persons nominated as independent candidates for municipal or township offices for which no political primary is held shall file such political practice pledge at the same time he files his petition for nomination as provided in § 13 (j) of Article 1 [§ 3-113 (j)] of this Act.”

Ark. Stat. Ann. § 3-113 (j) (Supp. 1971) provides as follows:

“Certificates of nomination shall be filed not more than fifty-five (55) and not less than forty-five (45) days before the day fixed by law for the election of the person in nomination.”

Thus it is seen that Act 42 of 1972 did little more than clarify the existing statutes as to the procedure to be followed in qualifying as an independent candidate, without political party affiliations, for municipal offices at the general elections in Arkansas. It appears undisputed that the 45 day deadline for filing as an independent candidate for the municipal offices involved in this case fell on September 23, 1972. It also appears that the plaintiff-appellants duly filed their petitions as municipal independent candidates with the county election commission and filed their political practice pledges with the county clerk on September 20, 1972. It further appears that the defendant-appellees filed their petitions as municipal candidates for the same offices on September 19, 1972, but failed to file their political practice pledges until on October 3, 4 and 5, which was ten to 12 days after the filing deadline.

The appellants rely on Wright v. Sullivan, 229 Ark. 378, 314 S.W. 2d 700 (1958), as controlling the issues raised on this appeal and argue that we should follow our decision in that case and reverse the judgment of the trial court. The appellees seem to recognize that our holding in Wright v. Sullivan, supra, is applicable to the facts in the case at bar, but they argue that we should re-examine the Wright decision. They point to our decision in Davis v. Fowler, 230 Ark. 39, 320 S.W. 2d 938, where we held that the failure of a candidate to file a statement of expenses within 30 days after a primary election, did not bar the candidate’s name from the general election ballot. They also quote from Spence v. Whittaker, 178 Ark. 51, 9 S.W. 2d 769, and argue that the language in that decision should apply here.

The decision in Davis, supra, is not in point with the case at bar because the filing of an expense account was not a statutory requirement for becoming a candidate and the candidate who violated the Act by not filing his expense account, was only ineligible to hold office after conviction for violating the provisions of the Act. The decision in Spence, supra, was rendered in 1928 and involved a primary election for the nomination of a Democratic candidate for the office of state senator. Spence and Whittaker were opposing candidates for the nomination and the statute provided for the filing of their corrupt practice pledge with the secretary of state. Whittaker filed his pledge with the secretary of state within time but Spence filed his pledge with the secretary of the Democratic State Central Committee who overlooked forwarding it on to the secretary of state for filing. Following intraparty protests by Whittaker, Spence’s name was placed on the primary ballots; he received the majority of the votes cast in the primary election and Was duly certified as the Democratic nominee. The circuit court, in a suit filed by Whittaker after the primary election, found that Spence was wrongfully deprived of the nomination and the right to have his name placed on the ballot for the general election. The trial court held that there was no Democratic nominee for the office of state senator and a vacancy existed. This court reversed on appeal.

The Spence case is readily distinguishable on its facts from the case at bar. Furthermore Spence was decided under the provisions of Crawford & Moses’ Digest, pertaining to Democratic party primaries, which provisions were considerably different from the provisions of Act 42 of 1972. In any event our decision in Wright v. Sullivan, supra, was rendered 30 years after Spence and we find nothing in the case at bar to justify our overruling Wright v. Sullivan.

It must be remembered that the filing of political practice pledges as well as the nominating petitions not less than 45 days before the general election, as required by Act 42 of 1972, is simply a requirement for acts to be performed by the individual in order to become an independent candidate for municipal office at such general election. The appellees seem to recognize the applicability of our decision in Wright v. Sullivan, supra, to the facts in the case at bar. In Wright we affirmed the judgment of the trial court holding that the filing of the pledge before the statutory deadline was mandatory and, in doing so, we said:

“The appellant also asks us to hold that the filing of the pledge two days late amounted to a substantial compliance with the statute. This position might be well taken if no objection has been raised until after the election, for then the requirement could be regarded as directory; but we have often held that the provisions of the election laws are mandatory if enforcement is sought before the election.”

On their cross-appeal the defendant-appellees contend that their own failure to file the political practice pledges within the time prescribed by law is nonprejudicial to the appellants for the reason that the appellants’ names also should have been barred from the ballot because of the fact that they filed political practice pledges stating that they were familiar with the political practice Act while it was demonstrated that in fact they were not.

We are of the opinion that this contention is without merit for it is the timely filing of the pledge that qualifies the candidate to have his name on the ballot rather than the extent of his true familiarity with the provisions of the Act.

The judgment is reversed on direct appeal and affirmed on cross appeal.

Byrd, J., dissents.


author: Conley Byrd, Justice. Appellee, John A. Fogleman, Justice,

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD v. CORNING SAVINGS AND LOAN ASSOCIATION
    5-6088
    490 S.W. 2d 460
    Opinion delivered February 12, 1973
    [Rehearing denied March 12, 1973.]

      Kenneth E. Suggs, for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: William L. Terry, and Scott Manatt, P. A., for appellee, appellee.
   Conley Byrd, Justice. Appellee,

Corning Savings and Locan Association filed an application with appellant, Arkansas Savings and Loan Association Board for charter to operate a savings and loan association. Appellee’s application was resisted by the Pocahontas Federal Savings and Loan. The latter, a federally chartered association had pending a federal application for a branch office at Corning. The Board found that appellee had met all the requirements for a charter except the showing required by Ark. Stat. Ann. § 67-1824 (3) — i.e., “There is a public need for the proposed association and the volume of business in the area in which the association will conduct its business is such as to indicate a successful operation.” The trial court reversed the three to two decision of the Board. On this appeal the Board contends that the trial court erred in finding that the decision of the Board was not based on substantial evidence.

To support its position the Board primarily relies upon the cross-examination of Dr. Barton Westerlund, an economist, Sam L. Manatt, Jr., a banker, and Mr. Carl Lacy, an accountant.

Dr. Barton A. Westerlund, an economist employed by the University of Arkansas’ Industrial Research and Extension Center testified to the growth of the City of Corning and the immediate surrounding area. Not only was there a population increase in the Corning area, as compared to a total County decrease of 11.7% for the period of 1960 to 1970, but other statistics showed a substantial increase in the average standard of living in the area. Electrical consumption was up 43%; agricultural employment had dropped from 2,150 to 1,450 persons while nonagricultural employment had increased from 3,575 to 4,575 persons. The Darling Company plant then under construction would add another 400 employees. According to his estimate the annual manufacturing employment payroll would increase from $2.5 million to $4.3 million when the Darling plant got into full production. In Corning proper there were 150 mortgages per year with an average value of $978,526.00. Dr. Westerlund estimated the average would go to $1,208,000.00. On cross-examination Dr. Westerlund admitted that for Clay County as a whole there was a decline in population for the period from 1960 to 1970.

F. B. Manatt, an Executive Vice President of the Corning Bank and a former State Representative, testified that there was a shortgage of rental property in Corning. He estimated that there was an average of three speculative residential homes per month being built in Corning and an average of two per month being built under contract. The bank deposits in the Corning Bank had increased by one million each year for the last few years. With respect to the need of a savings and loan and the service being performed by the savings and loan associations at Pocahontas, Piggot and Paragould, Mr. Manatt stated:

“I’d have to say that there’s two types of loans, the loans anybody would make; and the loans that you have to have an interest in the people or know something about them to make. This first class of loans has probably been taken care of. I’m talking about people starting out without credit; they’ve both got good jobs. These are the people I don’t think are being served.”

On cross-examination Mr. F. B. Manatt testified as to referrals they had made to other savings and loan associations. He estimated that during the first year of operation appellee would make home mortgage loans in the range of one million dollars. He estimated that during the last year there were home mortgage loans in the Western District of Clay County amounting to $2.4 million.

Daniel B. Howard, a certified public accountant with saving and loan auditing experience, estimated that upon a volume of $1.1 million in loans, appellee would make a profit the first year. Based upon the economic facts that he had been presented, he testified that in his opinion he had no question about the success of appellee. On cross-examination he admitted that his first year estimate was based upon an 854% interest rate and that a 7)4% rate would make a difference.

Sam L. Manatt, Jr., Executive Vice President of Corning Bank testified that there was a definite need for a savings and loan in Corning. His bank’s time deposits had jumped about three quarters of a million dollars in the last few months. He stated that the shoe plant employed 550 people and Busier Electric around 150. Both plants had expanded about two years ago. While acknowledging that he knew of no one who had been denied a home loan for lack of money, he described the house construction in Corning as a slow growth process.

Dr. Louis M. Amis, a member of North American Research and Development Corporation concurred in Dr. Westerlund’s appraisal. He pointed out that it is unusual to expect any kind of profit from the first year operation of a savings and loan institution. He stated that it would take from one to three years to reach a break even point in such an operation. He estimated that there would be an additional demand of $1,000,000.00 for home loans in the Corning area.

Carl Lacy, a C. P. A. with E. L. Gantt & Co. took the estimated expenses of appellee as given by Daniel B. Howard and after reducing that interest rate from 8Vz% to 7l/z% and adjusting other items of expense arrived at an estimated losss of $6,000.00 for appellee’s first year operation. In addition he estimated that a branch office could be operated moie economically and more efficiently than a brand new association. On cross-examination, Mr. Lacy stated that his projected loss of $6,000.00 for the first year was not vitally significant regarding first year operation.

Mr. Joe Martin, President and Manager of Pocahontas Federal Savings and Loan testified that they had a branch office at Walnut Ridge which was very successful. His bank had $897,831.00 of deposits in 197.1, from the Western District of Clay County. During the same time his association loaned $1,940,394.00 in the same area. On cross-examination he stated that one reason his association wanted a branch office at Corning was that the business is good. The other reason was to better service the area. In his opinion the Corning trading area was as good as the Walnut Ridge trading area. He described diem as similar.

Vernon King, the Vice President and Secretary and acting general counsel of Pocahontas Federal Savings and Loan, testified his association made home loans in the Western District of Clay County for the year of 1968, in the amount of $725,000; for 1969 in the amount of $940,000, and for 1970 in the amount of $1,326,000. He estimated his association’s proposed branch could made an additional $1,000,000 of outstanding loans at the end of three years operation. On cross-examination, he stated that in his opinion the community of Corning was a growing community very similar to Pocahontas and Walnut Ridge. According to him the whole area was going from a completely agricultural to a little more balanced economy. He also stated that he could not recall a foreclosure in the Corning area and that his association had never had a loss in principal and interest.

F. B. Manatt, upon rehearing, testified that Coming’s city budget had grown from $57,000 in 1963 to $140,000 plus in 1971. In 1955 there were 499 sewer and water connections and that in 1970 there were 1050. The gross income of the post office had grown from $9,160.40 in 1959 to $24,228.27 in 1971. The number of telephones had increased from 906 in 1960 to 1629 in 1971. The Corning Bank’s demand deposits had grown from $3.3 million in 1960 to 5.8 million in 1970. During the same period, time deposits had grown from $705,000 to $3.3 million.

E. W. Cochran, Mayor of Corning, pointed out that there were five supermarkets in Corning.

Bill Block, President of First Federal Savings and Loan of Paragould, testified as follows:

“As far as the economic success is concerned, I think perhaps I may be better able to answer that question than some of you because I have worked in and been a part of a very small savings and loan association. I want to give you some facts and figures in just a minute, but this leads me to believe it can be a success.
“I wouldn’t be so candid as to try to influence you gentlemen that this is going to be a huge financial success over night. It’s going to become a multimillion dollar association. I do not believe that. I believe they are going to have their problems just like the rest of us have had ours. I think they have their heads above water. It’s a proven fact they have the support of their community, and I believe they can be successful.
“I would like to point out some figures to you that I took from our annual report of 1962. This was the December, 1962, report of the First Federal Savings and Loan of Paragould. We had at the time a total of 264 mortgages for $1,285,000.00 and that’s all. We had depositors and our total deposits numbered 382. I was a little embarrassed to find out they are going to have almost that much at their opening. Our total deposits were $1,591,000.00. I give you those figures only to show you the nets that I think are the important ones.
“That year our gross operating income was $89,000.00 and our expenses were — and I have rounded these figures, gentlemen, so they will be easier — approximately $11,000.00. Our federal income tax was a thousand. We paid interest to our depositors which at that time was called dividends of $61,000.00. But we transferred to our reserves an undivided profit of $16,000.00. Now $16,000.00 for a total association of a million and a half to be transferred into reserves and so forth is not bad. We are still small, but we’re growing.
“I’d hate to go back to those days, but they are just beginning. They haven’t been there and they don’t know, but they can make it and I know they can because I’ve been there. Our association has been there.
"Many of the witnesses that have been testifying in favor of it have talked about, in effect, the population explosion. What are we, a country of 300 million now and there’s supposed to be another hundred million people by 1985 or something like this? People don’t want to live in the cities now. I’m not talking about the cities of Arkansas; I’m talking about Detroit and Philadelphia. Civil unrest and these type of things. They are moving. This is why Corning is able to get factories in here; why L. A. Darling has branched out and why the other one Mr. Manatt referred is possibly coming to Corning. They want a clean and decent «town to raise their children in, and I don’t blame them. I’m tickled to death to live in the one that I live in.”

Appellant here takes the view that the economy of the Corning area is expanding at a much slower rate than the economy of Arkansas generally and that the area has a high number of lower income persons, who may not have sufficient down payment for a new home or the requisite credit rating necessary to qualify for permanent financing. Based upon the foregoing premise, appellant expresses the opinion that a new association cannot cope with these problems any better, or perhaps not as well, as the present savings and loan associations in the area.

We cannot find any substantial evidence to support appellant’s position or findings. As we view the record it stands as uncontroverted; that the economy was changing from a completely agricultural to a little more balanced economy similar to Pocahontas and Walnut Ridge; that the Darling Company plant was moving into the area with a potential employment of 4Ó0 persons; and that the savings and loan associations with experience in the area wanted a local branch office to serve the neéds of the area.

The only other testimony was that of Carl Lacy to the effect that appellee would not necessarily operate at a profit the first year. When his testimony on cross-examination — to the effect that the first year loss was not vitally significant — is considered along with the undisputed testimony that it takes from one to three years to realize a profitable operation and that of Bill Block as to the profits his organization had made under similar circumstances, we cannot say that there was substantial evidence to show that the volume was insufficient to support a successful operation. To the contrary the evidence was all to the effect that the volume was sufficient to support a successful operation.

Furthermore, it has been suggested that the Board’s decision could be sustained on the basis that a branch office could be more economically operated than a brand new association. That is not a statutory ground for denying a charter.

Affirmed.

Holt, J., not participating.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. If it were within the province of either the trial court or this court to weigh the evidence to determine where the preponderance lay, I might well agree with my brethren of the majority. I believe that the only jurisdiction of either court on the review of the board action in this case is to determine whether there was substantial evidence to support the action of the board or whether the board acted arbitrarily. Under Ark. Stat. Ann. § 67-1811 (Repl. 1966), the scope of review of the circuit court is limited to determining whether the findings of the board were supported by substantial evidence. If so, the board’s findings are conclusive. Heber Springs Savings & Loan Association v. Cleburne County Bank, 240 Ark. 759, 402 S. W. 2d 636. Under Ark. Stat. Ann. § 5-713 (h) (Supp. 1971), the circuit court may reverse or modify the decision of the board only if substantial rights of the petitioner seeking review have been prejudiced because its decision was:

(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not supported by substantial evidence of record; or
(6) arbitrary, capricious, or characterized by abuse of discretion.

Thus, in this case, the circuit court’s scope of review under this act would be limited to determining whether there was substantial evidence of record to support the board’s action or whether the action of the board was arbritrary, capricious or characterized by abuse of discretion. Under § 5-713 (g) the court was limited to a review of the record before the board.

There is no specific provision for appeal to this court in the Administrative Procedures Act. Ark. Stat. Ann. § 5-701, et seq. (Supp. 1971). Under the Savings and Loan Association Act the appeal to this court may be taken as in other civil cases. Ark. Stat. Ann. § 67-1811. Whichever act is applicable, our general law on review on appeal limits us, in effect, to determining whether there was substantial evidence to support the board’s finding. It is not the function of this court, on appeal from the circuit court, to determine where the preponderance of the evidence lies. Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S.W. 2d 291. There is nothing in this record to show that the board acted arbitrarily, capriciously or in abuse of its discretion, unless there was a lack of substantial evidentiary support for its findings.

Under Ark. Stat. Ann. § 67-1824 (Repl. 1966), the board, before granting a charter, was required to affirmatively find:

(1) All the prerequisites for the approval of a charter set forth in this act [§§ 67-1801 — 67-1862] have been complied with.
(2) The character, responsibility and general fitness of the persons named in the articles of incorporation and who will serve as directors and officers of such association are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of this act and the proposed association will have qualified full-time management.
(3) There is a public need for the proposed association and the volume of business in the area in which the proposed association will conduct its business is such as to indicate a successful operation.
(4) The operation of the proposed association will not unduly harm any other existing association or federal savings and loan association or other financial institution.

The board found that requirements (1), (2) and (4) had been met, but that requirement (3) had not. The scope of inquiry of the circuit court was to determine whether there was substantial evidence in the record of thé proceedings before the board to support the board’s finding that it had not been shown that there was a public need for the proposed association or that the volume of business in the area was such as to indicate a successful operation. In regard to the board’s action the circuit judge made these findings:

I. That Corning, Arkansas, is located some 25 to 30 miles from any type of financial institution, which would afford opportunity for savings deposits, the bank of Corning offering certificates of deposit, which causes difficulty in convenience and access to financial institutions for the citizenry of the area.
II. The Pocahontas Federal Savings and Loan Association branch office application indicates the reason it desires to establish a branch office in Corning —that is, that there is a considerable volume of savings and loan association business transacted in Corning, and that it felt a definite need for savings and loan association service in Corning.
III. All testimony in the record substantiated that every economic factor governing this type of activity was present in the Corning area, and was evidenced in this community; and that the people of the community were competent, capable, able, aggressive, and were good and honest people with ability to operate such a proposed association.
IV. There is nothing in the record to substantiate the Board’s finding that there is no need for a Savings and Loan Association at Corning. Likewise, there is nothing in the record to substantiate the Board’s findings that the volume of business in the area is not such as to indicate a successful operation. Therefore, the court finds that the ruling of the Arkansas Savings and Loan Association Board, upon the question of need and adequacy of business in the area as to indicate a successful operation was not supported by substantial evidence of record. To the contrary, the Court finds that substantial evidence of record indicates a definite need for a Savings and Loan Association at Corning, and that it would be successful.

The last sentence of the findings quoted clearly illustrates that the circuit court went beyond the limits of its scope of review and weighed the evidence. I feel that this is the reason that the circuit judge fell into error. The majority does nothing more than point out that there was substantial evidence to support a contrary finding by the board and, thus, justify the trial court’s finding in that respect.

On the question of public need, Dr. Barton Westerlund, gn economist called by the applicant, testified that he had prepared a report on the area at the applicant’s request. On cross-examination, he testified that the increase in per capita income during 1960-1969 was less than that of Clay County in only five counties in Arkansas, that the population of the county had decreased by 11%, and that Corning had a high percentage of homes with low income. Lowell Poyner, a proposed stockholder of the applicant, who was in the real estate business, testified that, in his experience, there had been sufficient funds for home loans, even though there had been from time to time a shortage in commercial funds. Ben Williams, also in the real estate business in Corning, admitted that, in a sense, the needs of the area were being served at the present time, even though he thought that estimates of future housing needs that had been given were conservative. Sam L. Mannatt, Jr., Éxecutive Vice-President of the Bank of Corning, could not think of anyone who had been denied a home loan because of lack of money available for loans.

Joe R. Martin, President of Pocahontas Federal Savings and Loan Association, which had been active in the Corning area, stated that his association had ygcently reduced their loan interest rates because of a surplus of funds available for making loans. He added that there were four savings and loan associations servicing the area around Corning. He stated that his association had never refused a Joan because of lack of funds.

No further elaboration is necessary to show that there was substantial evidence to support a finding that there was not a public need for the proposed institution. There was also evidence indicating that the volume of business which might be anticipated by the applicant was not sufficient to insure its success.

Carl Lacy, a certified public accountant, had considerable experience in accounting work for savings and loan associations. He studied the data submitted in support of the application and found that it was premised on an excessive interest rate of 814%, and that there was money available for loans of the type that would be made by the new association at 714%, and that it must be assumed that the applicant would have to meet competition. He also testified that the supporting data was based on prospective interest of 6% on the applicant’s funds which would be deposited with the Federal Home Loan Bank when the current rate of interest was only 314%. He also pointed out that the association would have to pay 754% interest on money borrowed from the Home Loan Bank rather than 6%, as they had set out in the date submitted with the application. He stated that all the changes necessary to conform this data to the actual conditions would convert the applicant’s prediction of a first-year profit of $3,000 to a loss of $6,000. In addition, his experience indicated that estimates of expenses of operation made by the applicant were very conservative and that actual expenses, particularly in an effort to attract deposits, would exceed the estimates,

Vernon King, attorney for and vice-president of Pocahontas Federal Savings and ' Loan Association, stated that he had made a study of mortgages recorded in the Western District of Clay County. From this and other matters in the record pertaining to deposits and loans related to that district, King made projections of the volume of savings and loans that might be anticipated by a Corning branch of his association. He anticipated a first-year increase of approximately 50% over those currently held by his association and an additional $200,000 in the second year, and a total of $1,000,000 by the third year. He pointed out that the application was based upon a potential $1,100,000 in loans in the first year, of which not more than 20% would be commercial. King testified that it would take three years to reach the anticipated figure, and that would be upon the assumption that such a lending agency already had loans in effect for a part of that total. King anticipated an increase in deposits to his association of $500,000 after a Corning branch was opened. The association already had $897,831 in deposits in the area.

The suggestion that it was inconsistent for Pocahontas Federal Savings and Loan Association to forecast a profitable operation of a branch and simultaneously predict an unsuccessful operation by a new organization will not bear scrutiny. If it is not obvious, there was testimony by Lacy, the accountant, that a branch starts with trained personnel, an established bookkeeping system, lower auditing and management costs, as contrasted with a new organization which must not only establish management and a bookkeeping system, but train personnel and buy supplies and equipment. Furthermore, the record discloses that the application' of Pocahontas for a branch was withdrawn between the original board hearing on this application and a rehearing.

I do not know wherein this testimony lacks substantiality. The interest of the witnesses goes only to the question of weight to be given their testimony, a matter solely for determination by the board.

The board before which the hearing was had con-sited of five members, at least three of whom had not less than two years’ experience as an officer or director of a savings and loan association. Ark. Stat. Ann. § 67-1805 (Repl. 1966). In view of the evidence above mentioned and other testimony mentioned in the majority opinion, I submit that both the circuit court and this court have not only weighed the evidence, but have substituted their respective judgments in the matter for the expertise of the members of the board.

I would reverse the judgment and affirm the board.

I am authorized to state that the Chief Justice joins in this dissent.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Jim PARRISH et al v. City of RUSSELLVILLE
    5-6164
    490 S.W. 2d 126
    Opinion delivered February 12, 1973

      U. A, Gentry and W. H. Schulze, for appellants.

      John Harris, for appellee.
   Conley Byrd, Justice.

For reversal of an order annexing 6,398 acres to the City of Russellville, appellants Jim Parrish, et al, chicken farmers, hog farmers and fish farmers, contend among other things that the published description required by Ark. Stat. Ann. § 19-101 (Repl. 1968), is insufficient and that their lands are not adaptable nor presently needed for town purposes.

The record shows a description in two parts. The first part commences at the SE-Corner of Sec. 9, T 7 N, R 20 W and then describes a line that terminates at the point in SWH NWM Sec. 31, T 8 N, R 20 W where the Missouri Pacific Railroad right of way line intersects the present city limits. The second description commences at the SW-Corner of N!4 SEM Sec. 32, T 8 N, R 20 W, and with some admitted errors, terminates at the point where the first description commences.

To support its position that the description is sufficient, the City of Russellville relies upon the cases of Tex State v. Fort Worth, 339 S.W. 2d 707 (Tex. 1960) and Dixon v. Bremerton, 25 Wash. 2d 508, 171 P. 2d 243 (1946). Those cases recognize that a description must be sufficient to render possible the ascertainment of the boundaries involved and the territory intended to be included. The description approved in the Texas case commenced at a point on the present city boundary and described the periphery of the area to be annexed by circling back to the point of beginning. The description approved in the Washington case described all that portion of two particular geographical sections lying South and East of the existing city limits. Here the description does not encircle any geographical area nor describe a geographical area to be annexed. In fact the descriptions here only describe a line. This of course does not comport with the requirements of Ark. Stat. Ann. § 19-101 (Repl. 1968), that the petition describe “the territory to be embraced.” Consequently, the petition for annexation should have been dismissed.

On the issue that the lands sought to be annexed are not presently adaptable to town purposes, the proof shows that of the 6,398 acres, sought to be annexed, 3,939 were farm land, 1,674 were wooded land, and 785 acres were auto salvage yards, coal mines, cemeteries and residences.

Mr. Bill Onopa, employed by the West Central Arkansas Planning and Development District testified that based upon population estimates, that the City of Russell-ville would grow from a 1971 population of 11,250 to a 1990 population of 25,000, the City of Russellville needed to annex the 6,250 acres for planning purposes. On cross-examination Mr. Onopa fixed a reasonable planning period at any where from twenty to twenty-five years. In response to the question as to whether the 6,250 acres were adaptable for City use today, Mr. Ono-pa Stated:

“Actually, it’s not that simple. If you consider the total area that can be serviced with municipal services today, then it is not. But if you consider the total area that needs municipal services within a reasonable planning period, then the answer is yes.”

On re-direct he stated that the 6,250 acres would probably be consumed within the next 25 to 30 years.

Robert Darr, a real estate broker, in speaking of the adaptibility of the Parrish property for town purposes stated:

“Again, the Parrish property is at present an operating agricultural unit. It has a very nice view of Lake Dardanelle, which would tend to enhance its value from a residential and/or a commercial aspect, being on the lake and across the highway immediately east of the Dardanelle State Park. There would be a possibility of commercial development to complement the existing facilities in the State Park, as well as residential development which would provide lots that have a view of the lake, and this is seemingly a pretty big thing in the real estate right now.”

Other proof demonstrated that portions of the lands sought to be incorporated not only were not served by city streets, but that they were as much as six miles from the nearest fire station.

The law with respect to annexation of lands not presently needed for city purposes was stated in Vestal v. Little Rock, 54 Ark. 321, 16 S.W. 291 (1891) in this language:

“The last fact urged is the inclusion of forty acres of land belonging to Joseph W. Vestal. It lies across the river from the corporation, and is from a half a mile to three quarters of a mile distant from the unincorporated town, No streets of the corporation or village, or other town improvements, extend to it, and the line of city settlement has not reached it; it is not laid off for city uses, there is no settlement on it, and its proprietor cultivates it in his business as a florist and farmer. He remonstrated against its annexation upon the hearing in the county court, and by successive appeals renews his remonstrance here. He insists that his land is not needed nor at present adaptable for city uses, that it would not be enhanced in value by annexation, but that its annexation would subject it to taxation without any benefit or compensation to him; and the facts sustain his contention. Upon a similar state of case it has been held by some courts that land could not be subjected to municipal taxation; and never, so far as our information goes, that it ought to be. In this State all city property must bear alike the burden of ordinary city taxation; Fletcher v. Oliver, 25 Ark. 289; Cary v. Pekin, 88 Ill. 154; Martin v. Dix, 52 Miss. 53; Washburn v. Oshkosh, Wis. 453; and, in determining whether the annexation of particular lands is reasonable and proper, regard should be taken of this fact. Was it desirable and proper to include Vestal’s land, and subject it to ordinary taxation for city purposes? He had no need of local government, and the city had no need of his land. It could not afford him, even in a moderate degree, the ordinary benefits of city government, without an expense which it could not have contemplated without cause for remonstrance on the part of its residents.”

Furthermore, as recently as Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W. 2d 631 (1970), (involving some of these same lands), we pointed out that where it is manifested that the owners of land taken into a city can derive no benefits from being placed within the incorporated limits, such action amounts to the taking of private property for public use in the form of taxation without giving any compensation.

Consequently upon the record, we can find no substantial evidence to support the trial court’s finding that all the lands in the proposed annexation area are needed for town purposes and are valuable by reason of their adaptability for prospective town purposes.

Reversed and dismissed.

Fogleman and Jones, JJ., concur.

John A. Fogleman, Justice,

concurring. I agree with the result and all of the opinion except that part relating to the land description. I feel that the particular description here involved was sufficient to comply with statutory requirements.

I am authorized to state that Mr. Justice Jones joins in this opinion.


text:
    Henry Otis STANDRIDGE et al v. Lillian Marie STANDRIDGE
    5-6167
    490 S.W. 2d 125
    Opinion delivered February 12, 1973

      Shaw ér Shaw, for appellants.

      Tackett, Moore, Dowd ir Harrelson and James D. Emerson, for appellee.
   Conley Byrd, Justice.

This litigation over the ownership of some 700 acres known as the “Holly Bottom Farm” arises out of a divorce action between appellee Lillian Marie Standridge and appellant Henry Otis Standridge. Appellants Mabel Standridge, sister of Otis, and Mr. and Mrs. J. Olen and Lula Standridge, mother and father of Otis, were brought into the divorce action on a claim that Olen and Lula held title to an undivided one-half interest in the “Holly Bottom Farm” as trustees for Otis. After a hearing the trial court made the following specific finding, to-wit:

“That there is insufficient proof to establish a constructive trust on any of the lands or real estate, and particularly the Holly Bottom Farm although the Court finds that the Defendant, Henry Otis Standridge, did own a one-half (%) interest in this property known as the Holly Bottom Farm, which contained six hundred and forty-nine acres. Such ownership does not establish a lien of any kind whatsoever on these lands other than a lien of a judgment under the law.”

From a decree awarding Marie a judgment in the amount of $10,289.80 as her statutory dower interest in the undivided interest in the “Holly Bottom Farm” is this appeal.

The record shows that the “Holly Bottom Farm” was originally owned by the parents of Mrs. Lula Standridge. At the death of her parents the farm descended one-half to Mrs. Lula Standridge and one-half to her brother Lem Wimberly. Lem Wimberly by deed dated September 26, 1958, conveyed his undivided one-half interest to J. Olen and Lula Standridge for a consideration of $9,000. Marie does not dispute the fact that Olen and Lula paid for the land but she contends that they did so with the understanding that Otis would pay them the $9,-000 and that they would then convey the undivided onehálf interest to Otis. However, Marie did not testify to any personal knowledge of any such agreement being made. Other testimony on her part consisted of some checks paid by Otis to Olen and Lula which she assumed were payments on the $9,000. There was also proof that Otis had listed the undivided one-half interest as being owned by him when making application to the local Production Credit Association and that he at other times had told other people that he owned a one-half interest in the farm.

Appellants denied that the lands were purchased for the use and benefit of Otis and testified that the checks introduced by Marie were repayments of loans made to Otis or payments made on cattle and feed purchased by Otis from his parents. Other proof showed that Otis’ cattle pasturing arrangement with his parents, on the lands involved, was substantially the same from 1948 to the time of the separation.

The law in dealing with resulting and implied trusts places the burden upon one alleging such a trust to prove the same by clear, cogent and convincing evidence. See Ripley v. Kelley, 207 Ark. 1011, 183 S.W. 2d 793 (1944), Harrison v. Cruse, 233 Ark. 237, 343 S.W. 2d 789 (1961), and Bebout v. Bebout, 241 Ark. 291, 408 S.W. 2d 480 (1966). Here the proof is not clear, cogent and convincing that J. Olen and Lula Standridge held an undivided one-half interest in the "Holly Bottom Farm” in trust for Otis. It follows that so much of the decree as awarded Marie a statutory dower interest of $10,289.80 in the “Holly Bottom Farm” must be reversed and dismissed.

Reversed for entry of a decree in accordance herewith.

Fogleman, J., concurs.

John A. Fogleman, Justice,

Concurring. I concur. In my opinion, a resulting trust was not shown by a preponderance of the evidence. The chancellor passed on the sufficiency of the evidence in his findings, and his conclusion that it was insufficient seems proper to me. I would reverse on the basis that the ultimate decree was clearly against the preponderance of the evidence without a determination here on the clear, cogent and convincing evidence requirement.


author: Conley Byrd, Justice.

text:
    Mercia RIGGINS v. STATE of Arkansas
    5806
    490 S.W. 2d 124
    Opinion delivered February 12, 1973

      Carpenter, Finch ¿r McArthur, for appellant.

      Rodney. Parham, Attorney General; Frank B. New-ell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Upon a homicide charge, arising out of the stabbing of Nathaniel Hampton with a pair of scissors, appellant Mercia Riggins was found guilty of voluntary manslaughter and her punishment was fixed at seven years imprisonment in the State Penitentiary. For reversal she contends that the trial court erroneously admitted into evidence a pair of unidentified scissors and that the case should have been dismissed or reduced to involuntary manslaughter. We find no merit in either contention.

The proof showed that Nathaniel Hampton died from a stab wound. Eye witnesses identified the scissors introduced into evidence as the scissors that Nathaniel Hampton pitched upon the porch either during or immediately after the altercation with appellant. In a hand written confession appellant stated:

“I call Nathaniel and said I was coming over When I got to wemon and him was out in the yard. I told him I think I was going to have a baby, he said something smart. And I got mad and got my sissors out of my purse and stab him. he ask one of the ladys in the yard to get his car keys and take him to the hospital they could not find the keys so they call a ambulance. I wait till the police come. When the police got thir they addvised me of my right, and took me to the police station.”

Affirmed.


author: Frank Holt, Justice.

text:
    CHRIS LAMBERT Jr. AND ASSOCIATES, INC., and EELENA HAYS, D/B/A/ SNELLING & SNELLING AGENCY v. SNELLING AND SNELLING, INC
    5-6165
    490 S.W. 2d 116
    Opinion delivered February 12, 1973

      Kenneth C. Coffelt, for appellants.

      Smith, Williams, Friday, Eldridge ir Clark, by: Frederick S. Usery, for appellee.
   Frank Holt, Justice.

Appellee initiated this action to enjoin the appellants, an employment agency, from further use of appellee’s trade name, “Snelling and Snelling.” By a written franchise agreement, the appellants had the exclusive right to use the appellee’s trade name and be identified as a member of its national system. After appellants’ use of this trade name for approximately 5 years, the appellee cancelled the franchise agreement asserting various violations. Appellants denied any violations of the agreement and by counter-claim sought damages for the wrongful cancellation of the agreement. The chancellor found that the appellants had breached the franchise agreement With appellee and, also, that the appellee had “lawfully terminated said license and franchise agreement according to the terms thereof.” Accordingly, the court enjoined the appellants from using the trade name and dismissed appellants’ counterclaim for damages. All pleadings were considered amended to conform to the proof. For reversal appellants contend that the chancellor's findings and order are clearly against the preponderance of the competent evidence. In our view the chancellor was correct.

It is undisputed that a written notice of cancellation of the agreements was given by appellee and received by the appellants. The notice was in accordance with the terms of the contract. Various violations were enumerated. Also, at the trial it was stated without objection that another reason for the cancellation was the “refusal of the defendant [appellants] to show the books.” Paragraph 4 (g) of the written agreement provides that “all records and books of account maintained by Licensee [appellants] with respect to Licensee’s business shall be open to inspection by” appellee. Appellee’s Director of National Supervisors testified without contradiction that he personally requested appellants’ manager, Mrs. Hays, to permit him “to inspect her books.” She replied that she didn’t have them. “However, she agreed the next morning she would pick me up and take me to the airport and bring them at that time. . . . The next morning she never showed, so I never got the material.” He, also, testified that when he made a request at her office “to inspect the books,” she said, “[T]hey are not available because of recent burglaries.” He further testified that according to the building manager, “he knew of no recent burglaries at all.” Mrs. Hays, however, testified that “we had missing things” from the office and that “every office in that building had things missing.” It appears that appellee’s request for inspection of the books and records was never disputed. We deem it unnecessary to discuss appellee’s other alleged violations of the agreement inasmuch as the recited conflicting and inconsistent evidence is sufficient to sustain the chancellor’s findings.

It is well established that a chancellor’s decree will not be reversed upon appeal unless it is demonstrated that his findings are against the preponderance of the evidence. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965). The chancellor is in a better position to evaluate the witnesses, their interests, inconsistent and conflicting testimony since he hears and observes them.

The contract was properly cancelled and, therefore, appellants’ claim for damages is no longt- an issue.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    AMERICAN TELEVISION COMPANY, Inc. v. A. B. HERVEY, Jr., Commissioner of Revenues for the State of Arkansas
    5-6119
    490 S.W. 2d 796
    Opinion delivered February 19, 1973
    [Rehearing denied March 19, 1973.]

      Bethell, Callaway ér Robertson, for appellant.

      R. Davis Lewis, for appellee.

      Amicus Curiae, Leake TV Inc.
   Carleton Harris, Chief Justice.

Appellant, American Television Company, Inc., owns and operates KFSA-TV, a federally licensed television station in Fort Smith. The station enters into various license agreements with out-of-state concerns whereby it acquires the right to broadcast particular motion picture films, syndicated programs, and other artistic performances. The films covered in the agreements are then sent to KFSA from where the films are broadcast. After broadcasting as permitted under the license agreements, the films are returned to the sender. Appellee, the Commissioner of Revenues for the State of Arkansas, levied a use tax on the use by Appellant of the video tape material pursuant to Act 487 of 1949 [Ark. Stat. Ann. § 84-3101, et seq. (Repl. I960)]. Appellant paid the tax under protest and thereafter instituted suit in the Pulaski County Chancery Court contending that the tax was illegal, and praying that it recover from the commissioner the amount previously paid in, together with 6% interest from December 29, 1970. The cause was submitted on the pleadings and a complete stipulation of facts and the court found against appellant and dismissed its complaint. From the decree so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss in the order listed.

I

THERE IS NO PURCHASE OF TANGIBLE PERSONAL PROPERTY

A number of exhibits were attached to the stipulation, these exhibits being various agreements with out-of-state companies allowing certain broadcasting rights to the station. The provisions of the several exhibits are quite similar, though not identical. For instance, Exhibit B is with Bing Crosby Productions, Inc. of Chicago, in the form of a license, and provides inter alia “that the licensor [Crosby] has hereby leased and licensed under copyright to the licensee for broadcasting for television purposes and for broadcasting for such purposes, only the tape hereinafter designated”. The tape designated is “Paul Harvey Comments” and the agreement covers 260 programs of five minute length, providing that programming will commence on September 15, 1969 at a cost of $20.00 per program. The contract also provides that the agreement will be continued for 52 consecutive weeks from the date of the first telecast. Further, inter alia, the agreement provides that the tapes leased shall be televised only in accordance with the schedule; that the station will not permit the exhibition of any print at any other time or place, nor for exhibition in places of public assembly where an admission fee is charged the public; that the station will return promptly each print received to the Crosby office, or as otherwise directed, immediately after the televising of such print, in the same condition as when received, reasonable wear and tear excepted.

Exhibit C is an agreement between the station and Twentieth Century Fox Television of New York and lists two motion pictures for showing for which the company will pay a total “license fee” of $600.00.

As previously stated, the agreements with various companies are very similar. Each provides a limited right to broadcast certain programming material; all provide for one or two broadcasts for gratuitous reception only; all require return of film or tape containing the material to the licensor within twenty-four to seventy-two hours of the time of the broadcast. Appellant specifically mentions that the agreement with United Artists provides that the license fee specified constitutes payment solely for the station’s right to broadcast the pictures.

The statute imposing the tax reads as follows:

“84-3105. (a) There is hereby levied and there shall be collected from every person in this State a tax or excise for the privilege of storing, using or consuming, within [the State, any article of tangible personal property, after] the passage and approval of this Act [§§ 84-3101 — 84-3128], purchased for storage, use or consumption in this State at the rate of three per centum (3%) of the sales price of such property. This tax will not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this State until the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State. This tax shall apply to the use, storage or consumption of every article of tangible personal property, except as hereinafter provided, irrespective of whether the article or similar articles are manufactured within the State of Arkansas or are available for purchase within the State of Arkansas, and irrespective of any other condition.”

Definitions of words pertinent to this litigation are found in Ark. Stat. Ann. § 84-3104, as follows:

“(b) The term “storage” means and includes any keeping or retention in this State of tangible personal property purchased from a vendor for any purpose, except sale or subsequent use solely outside this State.
(c) The term ‘use’ means and includes the exercise of any right or power over tangible personal property incident to the ownership or control of that property, except that it shall not include the sale of that property in the regular course of business.
* * * * #
(e) The term ‘purchase’ means the sale of tangible personal property by a ‘vendor’ to a person for the purpose of storage, use or consumption in this State.
(f) The term ‘sale’ means transfer, barter or exchange of the title or ownership of tangible personal property; or the right to use, store or consume the same, for a consideration paid or to be paid, in installments or otherwise, and includes any transaction whether called leases, rentals, bailments, loans, conditional sales, or otherwise, and notwithstanding that the title or possession of said property, or both, is retained for security. For the purpose of this Act [§§ 84-3101— 84-3128] the place of delivery of tangible personal property to the purchaser, user, storer or consumer shall be deemed to be the place of sale, whether such delivery be by the vendor or by common carriers, private contractors, mails, express, agents, salesmen, solicitors, hawkers, representatives, consignees, peddlers, canvassers, or otherwise.”

Succinctly stated, appellant contends that the tax is only imposed on tangible personal property which it says is not here involved; that the purchase by KFSA is a limited, exclusive license to reproduce the performances of personalities and artists by broadcasting on the station, and that this license, or right to broadcast, is intangible. Appellant says that the film or video tape furnished it is only sent in order that the right mentioned may be exercised, and that the fact that the performance is imprinted on the film or tape does not change the character of the transaction. Appellant constantly refers to these agreements as licenses while the commissioner refers to them as leases, but whatever the name applied, there is no dispute but that companies outside this state agree that certain tapes or films are to be sent to appellant within this state, and it is undisputed that the film is loaded on a projector or the video tape on a video tape machine, run through the machine and the program broadcast from Fort Smith. Appellee asserts that when the television station takes possession in Arkansas, loads the film or tape into a projector and activates the machine so as to broadcast images over the state, it has used that tangible personal property so as to make that use taxable under our statute. Important is the definition of sale which, as previously noted, is defined as any transfer of the title or ownership, or the right to use, store or consume the same . . . and includes any transaction whether called leases, rentals, bailments, loans, etc.

Of course, there was no purchase or sale, as we normally use the word, but here we are dealing with a statutory definition. We agree with the state that the right to use property cannot be separated from the property itself and the “right” spoken of by appellant would have no value except for the use of the tape or film — the two cannot be separated.

An Amicus Curiae Brief has been filed by counsel for Leake TV, Inc. In that brief, it is pointed out that Arkansas has had a sales tax since 1935 and the present 3% levy was imposed in 1941. This 1941 Act (Ark. Stat. Ann. § 84-1902 (Repl. I960)) defines sale as follows:

“The term ‘sale’ is hereby declared to mean the transfer of either the title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. The term ‘sale’ is also declared to include the exchange, barter, lease or rental of tangible personal property where such exchange, barter, lease or rental results or may result in either the transfer of the title or the possession.”

In 1943, this court in the case of U-Drive-’Em Service Co., Inc. v. Hardin, Commissioner of Revenues, 205 Ark. 501, 169 S.W. 2d 584, construed this statute and stated:

“We think both the commissioner and the trial court fell into error in so holding and in so applying this provision of the statute to the facts in this case. A lease or rental of tangible personal property is not taxable under the express provision of the act, unless the result is or may be either the transfer of the title to such property or the transfer of the possession of such property. Now, it is undisputed that appellant, under its agreement with its customers does not transfer the title to its cars to them, even temporarily, and it is not here contended that it does, but only that there is a transfer of the ‘possession.’ So, it narrows down to the proposition of whether the arrangement of appellant with its customers amounts to a ‘transfer of the . . . possession,’ within the meaning of the act. We do not think so. Appellant never parts with the whole possession of its cars by this arrangement. It is always the owner and is in either the actual or the constructive possession of them.”

The court then additionally commented that there was no sale, only a rental, but the thrust of the opinion was directed to the word “possession”.

Counsel state that it is a well known fact that the purpose of a use tax is to treat equally taxwise the purchase of articles within the state and the purchase without the state for use within this state, and that the purpose is to avoid discrimination; that in 1949, the Arkansas General Assembly passed the “use tax”; that the General Assembly was expressly aware of the provisions of the sales tax, and it is presumed to have also been aware of the construction of the sales tax act by this court in U-Drive-'Em Service Co., Inc. v. Hardin, Commissioner of Revenues, supra. Accordingly, says counsel, in view of the intentionally complementary nature of the acts, the only logical conclusion is that bona fide rentals were not intended to be covered by the use tax act for we held that such rentals were not covered by the sales tax act.

We do not agree with this argument. At the time of U-Drive-’Em, there was no use tax act, and consequently, the court could not have been taking that act into consideration in its determination. As previously pointed out, this act was not passed until six years after our decision and actually, there is a difference in the wording of this last act,- and the language that was construed.

In comparing the 1941 sales tax act with the use tax act, it will be at once noted that there is a distinct difference in the definitions. In the sales tax act, before the transaction constituted a sale, there had to be a transfer of either the title or possession, while the use tax act makes no such requirement. In fact, U-Drive-’Em deals with the word “possession” as the key word, and it would appear that the General Assembly perhaps deliberately circumvented the holding of the court by providing that possession by the person to be taxed is not necessary, and that the transfer of the right-to-use is sufficient to constitute a sale.

In 1965, the General Assembly amended the definition of “sale” in the sales tax law, this definition appearing as Ark. Stat. § 84-1902 (c) (Repl. 1960 and Supp. 1971), declaring “the term ‘sale’ is hereby declared to mean the transfer of either the tide or possession, except in the case of leases or rentals (our emphasis) for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. The term ‘sale’ is also declared to include the exchange, barter, lease or rental of tangible personal property. In the case of leases or rentals of tangible personal property, the tax shall be paid on the basis of rental or lease payments made to the lessor of such tangible personal property during the term of the lease or rental.”

The Amicus Brief admits that it may well be that the 1965 amendment to the sales tax law made leases and rentals subject to the sales tax, thus nullifying the U-Drive-‘Em decision, but that the words used in the use tax law must be construed under the holding in U-Drive-’Em. In its brief, Amicus counsel state:

“The use tax law not having been amended, as was the sales tax law in 1965, its construction and application is unchanged by that amendment and its scope is no broader than if the 1965 sales tax amendment had never been enacted.”

It is obvious we do not agree with this argument since we have already pointed out that there is a difference in the definition of sale in the use tax act and the 1941 sales tax act. No need exists for the General Assembly to enact additional legislation for the two acts now complement each other.

We like the reasoning of the Florida court (District Court of Appeal, First District) in the case of Florida Association of Broadcasters, et al v. Claude R. Kirk, Jr., et al, as and constituting the State Revenue Commission, 264 So. 2d 437, where the same argument was presented. There, appellants sought review of a declaratory judgment concerning their liability for sales and use taxes arising out of their use of films and transcriptions during the year 1969. The trial court found appellants liable for the payment of taxes, and on appeal this holding was affirmed, the court stating:

“Appellants attempt to distinguish between money • paid for the actual physical film and that paid for the right to use the film. The right to use is a license so appellants contend that they are renting intangible personal property rather than tangible personal property. However, as the trial court pointed out, this reasoning is unsound. Every purchase or rental of property is the acquisition of the right to use that property for its intended purposes. Likewise, practically every piece of property subject to rent or sale is a product of someone’s original idea and the rental thereof is for the purpose of using it.
The Supreme Court of Tennessee, when confronted with the issue of whether operators of motion picture theaters were liable for sales tax on film rented from producers, stated:
‘There is scarcely to be found any article susceptible to sale or rent that is not the result of an idea, genius, skill and labor applied to a physical substance. . . If these elements should be separated from the finished product and the sales tax applied only to the cost of the raw material, the sales tax would, for all practical purposes, be entirely destroyed.’ Crescent Amusement Co. v. Carson, 187 Tenn. 112, 213 S.W. 2d 27, 29 (1948).
Also, in United Artists Corp. v. Taylor, 273 N.Y. 334, 7 N.E. 2d 254 (1937), the New York court held that a transfer by a distributor to an exhibitor of possession of motion picture film with a license to use or exhibit that film constituted a sale within the meaning of the sales tax law. The court in that case stated that ‘The license to exhibit without the transfer of possession would be valueless. Together they are one transaction and constitute a sale. . .”

It follows from what has been said that we find no merit in this point.

II

THE IMPOSITION OF A TAX ON APPELLANT’S RIGHT TO BROADCAST THE PERFORMANCES IS PROHIBITED BY THE CONSTITUTION OF THE UNITED STATES

Appellant points out that the broadcast signal of its station which emanates from its transmitting tower near Fort Smith extends into a large portion of the State of Oklahoma and a small portion of the State of Missouri and, in fact 32% of the television homes in its market are located in Oklahoma. Appellant argues that to the extent that television broadcasting involves interstate commerce, it may not be burdened by state privilege taxes for if the levy is directly on commerce, it is prohibited. We agree with this statement, but do not agree that it is applicable here. In McLeod, Commissioner of Revenues v. Memphis Natural Gas Company, 207 Ark. 879, 183 S.W. 2d 927, the appellee insisted that its net income in Arkansas was derived wholly from interstate commerce and that if the Arkansas income tax act was construed to apply to its income, said act was unconstitutional as being in violation of the commerce, due process, and equal protection clauses of the United States Constitution. This court, in disagreeing with this argument, and reversing the trial court, quoted from McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S. Ct. 388, as follows:

“In imposing taxes for state purposes a state is not exercising any power which the Constitution has conferred upon Congress. It is only when the tax operates to regulate commerce between the states or within foreign nations to an extent which infringes the authority conferred upon Congress, that the tax can be said to exceed constitutional limitations. (Citing cases). Forms of state taxation whose tendency is to prohibit the commerce or place it at a disadvantage as compared or in competition with intrastate commerce, and any state tax which discriminates against the commerce, are familiar examples of the exercise of state taxing power in an unconstitutional manner, because of its obvious regulatory effect upon commerce between the states.
‘But it was not the purpose of the commerce clause to relieve those engaged in interstate commerce of their just share of state tax burdens, merely because an incidental or consequential effect of the tax is an increase in the cost of doing the business. (Citing cases). Not all state taxation is to be condemned because, in some manner, it has an effect upon commerce between the states, and there are many forms of tax whose burdens, when distributed through the play of economic forces, affect interstate commerce, which nevertheless fall short of the regulation of the commerce, which the Constitution leaves to Congress.’

See also State v. Tad Screen Advertising Co., 199 Ark. 205, 133 S.W. 2d 1 and Lee Enterprises, Inc. v. Iowa State Tax Commission, 162 N.W. 2d 730, where the Iowa Supreme Court held likewise in dealing with a sales and use tax on advertising receipts from radio and television stations which disseminated their programs across state lines. We hold the contention to be without merit.

Ill

THE “PROPERTY” DOES NOT COME FINALLY TO REST IN THIS STATE

Finally, it is argued that, assuming it is tangible personal property involved in the transactions, such property does not finally come to rest in this state for even before a film or tape enters Arkansas, it is already definitely scheduled (under the agreement) to leave the state within twenty-four to seventy-two hours after the broadcast. This argument, to which only one page is devoted, has reference to that language of Ark. Stat. Ann. § 84-3105, which states that no tax shall apply “until the transportation of such article has finally come to rest within this state. . .” In our view, appellant gives a much broader interpretation to the word “finally” than is warranted under the facts of this case. The tapes, films, etc. have finally come to rest as far as the purpose in sending them here is concerned; that is, they have “come to rest” for the use intended. As already.pointed out, rentals and leases are unquestionably covered under the statute; yet we know that the very nature of a lease or rental means that whatever property is rented or leased will eventually be returned to die actual owner (except in the case of lease-purchase agreements). For that matter, under the method of operation, it might be difficult to say that the tapes or films ever “finally” (as appellant uses the word) come to rest, for they are apparently shipped to other points after they are returned to the owner. Be that as it may, the fact remains that the tapes and films, upon reaching station KFSA-TV, have finally come to rest for the purpose for which they were sent, i.e., the use of said film by that station in its broadcasting programs.

It follows from what has been said that we find no error in the court’s decree (judgment) and said decree is, in all respects, affirmed.

It is so ordered.


text:
    Madge SHIPLEY (deceased), et al v. CRAWFORD COUNTY, et al
    5-6145
    490 S.W. 2d 439
    Opinion delivered February 19, 1973

      Batchelor <tr Batchelor, for appellants.

      Thomas B. Keys, Kenneth R. Brock, Floyd G. Rogers, for appellees.
   Carleton Harris, Chief Justice.

On April 1,1971, Crawford County condemned a portion of the lands of appellants at the instance of the Arkansas State Highway Commission for the purpose of widening State Highway No. 162. On March 16, 1972, the county petitioned the Chancery Court of Crawford County seeking an injunction against appellants preventing and restraining them from interfering in any unlawful manner with the construction of the job upon the right-of-way condemned for highway purposes. Appellants answered the petition, first alleging that the state highway commission was the real party in interest and asking that it be made a party defendant; that appellants were entitled to be paid for any damages sustained; that under Amendment 10 to the Constitution of the State of Arkansas, the county is prohibited from paying one year’s obligations from another year’s income, and appellants are entitled to have a guarantee that their damages, when determined by a court of competent jurisdiction, will be paid. It was asserted that Crawford County had no funds for the year of taking with which to make payment, and in such event, the complaint asked that the highway commission be required to pay same. It was then prayed that Crawford County be required to make a reasonable bond for payment of damages, and that the commission be required to pay any damages sustained, after judicial determination of the amount due, for any sum which appellants were unable to collect from Crawford County. After the petition had been amended, the commission demurred to the response filed by appellants on the basis that such petition constituted a suit against the state in violation of Article 5, Section 20 of the Arkansas Constitution. The court sustained this demurrer and entered an opinion making pertinent findings as follows:

“Defendants have made no showing that the Plaintiff cannot, or will not be able to pay damages that may be determined; and payment need not precede the taking so long as Defendant has available a method for payment as herein by claim against the County. (Citing case).
The Plaintiff, Crawford County, is not alleged or shown to be insolvent at any time past, present or future. But has offered to deposit a sum in excess of the appraised value of the small amount of land being taken and as has been pointed out, the Plaintiff will be responsible for whatever damages may be finally determined. (Citing case). In view of all of which, the Defendants’ fears of a violation of Amendment 10 of the Arkansas Constitution Appear to be ill-founded.”

The prayer for injunction was granted and the court directed Crawford County to deposit in the registry of the county or circuit court the sum of $5,000 “to cover such damages” and deposit in the registry of the chancery court the sum of $2,000, or a sufficient bond, to guarantee payment of all probable damages and costs occasioned by the issuance of the injunction. From the order so entered, appellants bring this appeal.

There is no need to discuss the points presented for reversal since it at once appears that this decree sustaining the demurrer will have to be reversed. In their brief, appellants say that they had no opportunity to present proof, examine or cross-examine witnesses, and that the trial court issued the injunction and set the bond without any evidence to support it. In their brief, appellees state that the commission’s district engineer was present and explained plans relative to the properties in question; that the attorneys made statements relating to the factual aspects of the. case, and that at no time did the appellants request that they be permitted to offer evidence on the amount of the bond. It is further stated that the county judge was present, and that the prosecuting attorney, representing Crawford County, assured the court the county was solvent; that the county judge stated that he had requested three men to appraise appellants’ damage and that they found a figure of $4,000.00. While these statements all appear in the briefs of the respective parties, none of this appears in the record. There is nothing in the record except the pleadings, profile of the proposed highway, service of summons, opinion, and order of the Chancery Court. We, of course, can consider nothing except the contents of the record.

We think the court erred in sustaining the demurrer. Perhaps appellants could have better worded their “Petition for Equitable Relief”, but it is apparent that they were not seeking a judgment against the highway commission, but were only seeking assurance that damages, after being ascertained, would be paid. In Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S.W. 2d 415, this court pointed out that an action seeking to compel the commission to redress a past injury would unquestionably constitute a suit against the state, forbidden by the Constitution. In the instant case, as in Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S.W. 2d 968, the relief sought occurred before the damage to the property, and in the latter case we said:

“The property owners cannot be required to accept a claim for unliquidated damages as compensation for their property. There is authority in the law whereby the court, in which condemnation is prayed, may require a deposit in court of a sum of money sufficient to pay any and all damages which may reasonably be assessed; and the deposit must be in the registry of the court where the damages will be assessed, which in this case is the circuit court of Crawford County. This deposit is in effect the payment, and in advance, which the Constitution requires as a condition precedent upon which the property must be taken. Such an order of the court and a deposit pursuant thereto places the fund in the hands of and subject to the control of the court.”

No judgment has as yet been rendered so it is certain that appellants are not seeking recovery from the commission, but only a proper deposit from the county which will guarantee the payment of damages. This condemnation was effected under Ark. Stat. Ann. § 76-510 (Repl. 1957), and the condemnation was entirely proper; however, as is the case where the commission itself condemns the lands sought, the landowner is entitled to a guarantee of payment.

There is nothing in the record to indicate whether the deposit of $5,000 is sufficient or adequate to compensate for damages that may be incurred, nor is there anything in the record to denote whether sufficient monies from county revenues of 1971 have been retained to pay such damages. Appellants, under our cases, are entitled to this protection.

Accordingly, the order sustaining the demurrer is hereby reversed and set aside and the cause is remanded to the Crawford County Chancery Court with instructions to proceed in a manner not inconsistent with this opinion.

       Ark. Stat. Ann. § 76-511 (Repl. 1957) provides for steps to be taken by the highway commission where the county refuses to take any action.