author: Conley Byrd, Justice. Carleton Harris, Chief Justice, George Howard, Jr., Justice, John A. Fogleman, Justice,

text:
    John Edward SWINDLER v. STATE of Arkansas
    CR 77-189
    569 S.W. 2d 120
    Opinion delivered July 17, 1978
    (In Banc)
    [Rehearing denied September 5, 1979.]

      Don Langston, for appellant.

      Bill Clinton, Atty. Gen., by: Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant killed Officer Randy Basnett of the Fort Smith Police Department at the Road Runner service station on Kelly Highway which is located just off Interstate 540 and across from the State Police District Headquarters in Fort Smith. The jury found appellant guilty of Capital Felony Murder and fixed his punishment at death. For reversal appellant raises the issues hereinafter discussed.

POINT I. Before trial appellant properly moved for a change of venue with the necessary supporting affidavits. The proof showed, without contradiction, that the news media had saturated the public with the fact that appellant had been released from Leavenworth prison just a week before killing Officer Basnett and that at the time of the killing he was wanted in South Carolina for the recent murder of two teenagers. The fact that appellant had been interviewed by the South Carolina authorities was also given widespread publicity. In addition to the publicity involving the killing and subsequent funeral of Officer Basnett, the Concerned Policemen’s Wives Organization, some 45 strong, circulated petitions requesting two policemen to each patrol car. This organization wearing black arm bands collected between nine and ten thousand signatures. The people who signed the petition mentioned the policeman that was killed by appellant, and were told that the black arm band was worn in mourning and in respect of the fallen officer.

Alan Wooten, an attorney and resident of Fort Smith, testified that he did not think it possible from the one thousand or so people selected by the jury commissioners to select twelve people who either do not have a fixed opinion or could set aside the opinion they have as to the guilt or innocence and hear this case and base their decision solely on the law and evidence as presented in court.

Tom Anderson, the Historical Director for Sebastian County, testified that from his conversations with other people, they felt the same way he did. Every one of them seemed to think appellant was guilty. At least ten of the people he talked to said that appellant didn’t even deserve a trial at all. Several of them said appellant should have been shot and thrown in the river when they captured him. On cross-examination he testified that to him a fair trial means that the jury will make their decision based on what they hear inside the courtroom and would either be ignorant or would blot out everything they’ve heard before they got to court. He hadn’t run into anybody that would fit that criteria in Sebastian County.

Robert Taylor, an attorney and resident of Sebastian County, testified that appellant could not get a fair trial in Sebastian County. He stated that any person he talked with had the distinct opinion that appellant was guilty. When he told a friend that he was going to go to court to testify, the friend became highly irate that he planned on showing up and told him that they ought to shoot appellant first and try him later.

Bill Hayes, manager for Southwestern Bell Telephone Company, a resident of Sebastian County, testified on direct that he felt like appellant could get a fair trial. On cross-examination he admitted that from the news media he got the information relative to appellant’s background — i.e., he was just recently released from Leavenworth Penitentiary and that he was wanted in South Carolina for two murders. He then testified that in his conversations with 75 or 100 people, there were some that did say what they thought ought to happen to appellant. Some felt like he ought to be executed. He heard enough comment that the people he conversed with were surprised that appellant was brought in alive.

Jack Ragains testified on direct that in his opinion appellant could receive a fair trial. On cross-examination he stated that he had heard from the news reports that appellant had been in the penitentiary. He had heard about appellant being wanted in South Carolina for two murders. From what he heard and read in the case everything indicated that appellant had committed the crime. He would rather see appellant tried where he committed the crime. People he had discussed it with had expressed the opinion that appellant was guilty. None of his customers had a different opinion.

Ron Strumbaugh, a State Farm Insurance Agent, testified on direct that he thought appellant could receive a fair trial in Sebastian County. On cross-examination Mr. Strumbaugh admitted that from the news media he was familiar with appellant’s background and stated that he thought the defense in appellant’s case was unpopular.

In all the trial court heard six witnesses on behalf of appellant testify that appellant could not get a fair trial and 24 witnesses for the State who stated on direct examination that appellant could get a fair trial. On cross-examination each witness for the State testified much like Bill Hayes, Jack Ragains and Ron Strumbaugh. At the end of the testimony the trial court denied the motion for a change of venue. Following the selection of the jury and the two alternates, appellant again raised his motion for a change of venue and again it was denied.

The record shows that in the voir dire of the jury 62 prospective jurors were questioned. Twenty-three jurors were excused for cause. Appellant exhausted his twelve peremptory challenges and moved to excuse for cause eleven of the twelve jurors selected. In selecting the two alternates appellant exercised his one peremptory challenge and the trial court excused eight for cause. Every juror selected to try appellant except G. C. Whitfield knew appellant’s background from the news media. Juror Phyllis Russell stated that from the media she knew that appellant had been in prison. She also remembered that appellant was wanted for questioning. She had the opinion that appellant did it. She couldn’t say whether or not these things she had heard would have any effect on her verdict. She didn’t think she could say that it would not have any effect.

Typical of the jurors excused for cause is Mrs. Clarence Anderson who stated “I have my mind made up and I don’t believe 1 can change my opinion.” Another example is Herman Yandell who stated that he had heard other people say that the officers caught appellant right in the act and that they didn’t see how appellant could be anything other than guilty. He concluded that those conversations would color his verdict. Along this same vein is the testimony of Mary Ellen Jesson (excused by the State) that perhaps some of this information she had obtained before coming to court would influence her in some way if she were selected as a juror.

Among the jurors peremptorily challenged by appellant were Hubert Davis and Wanda Foster. Hubert Davis had worked for the same company with the father of Officer Basnett for 17 years. Since Officer Basnett’s death, he had told his father he was sorry to hear it. Wanda Foster had worked at the United States Marshall’s Office for the last eight and one-half years. Robert Taake stated that he could not be one hundred percent sure that he would not let the news media information affect his verdict.

We agree with the State that the trial court has wide discretion in deciding whether to grant a change of venue and that unless the trial court abuses its discretion, the trial court’s order is conclusive on appeal. We also agree with the State that the burden of proof is upon the defendant moving for a change of venue to make credible proof to support his motion. However, when we view the record before us as it appeared when appellant renewed his motion for a change of venue after the jury was selected, we must hold that the trial court abused its discretion in denying the motion for a change of venue. The voir dire of the jury corroborates the testimony of Alan Wooten, Tom Anderson and Robert Taylor that it would be very difficult to find twelve people who could put all of the news media information aside.

POINT II. We also agree with appellant that the trial court, under the circumstances, erred in holding that Hubert Davis, Wanda Foster and Robert Taake were qualified to serve as jurors. In an emotionally packed trial involving the killing of an officer by an ex-convict where the only real issue is a sentence of life or a sentence of death, it can hardly be said that a 17 year co-worker of the father of the slain policeman, who has taken the time to give his condolence to the father, is an unbiased juror. Neither should an employee of a law enforcement agency be considered a competent juror where the killing results from an assault upon an officer of the law while acting in the scope of his employment. Robert Taake did not qualify as an impartial juror, Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970).

We agree with the State that the question of a juror’s qualification rests within the sound discretion of the trial court and that the proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court. However, where the juror testifies that he is not one hundred percent sure that he can lay aside his previous impressions or opinions, we do not see how any discretion on the part of the court can add any assurance that the verdict will be rendered only upon the evidence presented in court.

POINT III. The evidence showed that at the time of the shooting appellant had in his possession guns and ammunition other than the snub nosed .38 caliber he used to shoot Officer Basnett. Appellant objected to the introduction of these items on the basis that they had no relevant connection with the offense. We agree with the State that under the circumstances the big cache of guns by one just shortly out of Leavenworth prison and wanted for two murders in South Carolina would tend to show that there had been some premeditation and deliberation about how he should act in the event he was approached by a policeman. After all, one does not ordinarily walk around in a civilized society loaded and ready to shoot for bear.

POINT IV. State’s Exhibit No. 47, reflecting that appellant was on parole from Leavenworth prison was introduced as an aggravating circumstance pursuant to Ark. Stat. Ann. § 41-1303 (Repl. 1977), which provides:

“Aggravating circumstances shall be limited to the following:
(1) the capital murder was committed by a person subject to imprisonment, suspension, on probation as a result of being found guilty of a felony.”

Appellant contends that when we strictly construe Ark. Stat. Ann. § 41-1303, supra, the trial court erred in admitting State’s Exhibit No. 47. Since the purpose of both probation and parole is to give conditional freedom to one convicted of a felony, we find no merit in appellant’s contention that his parole on his felony conviction did not amount to an aggravating circumstance within the meaning of Ark. Stat. Ann. § 41-1303, supra.

POINT V. Ark. Stat. Ann. § 41-1303 (Repl. 1977), provides:

“Aggravating circumstances shall be limited to the following:
(4) the capital murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”

State’s Exhibit No. 49, being a complaint and warrant for appellant’s unlawful flight to avoid prosecution, was admissible to show that Officer Basnett, who was checking on the registration of appellant’s stolen automobile at the time of the shooting, was shot for the purpose of avoiding or preventing a lawful arrest.

POINT VI. As we read the record, appellant’s automobile was headed east which would place his automobile with the door on the driver’s side next to the station in which Carl Tinder and another customer were located at the time appellant started firing at Officer Basnett through the door on the driver’s side of his car. Since this would place the people inside the station within the line of fire and only 23 feet from appellant’s gun, we cannot say that the trial court erred in submitting to the jury the issue of whether appellant created a great risk of death to a person other than the victim.

POINT VII. During the closing argument on the penalty, after the jury had found appellant guilty of capital felony murder, appellant wanted to argue to the jury that the killing of Officer Basnett was a status killing and that the death penalty would not be involved if Basnett had been just an ordinary person. The trial court required appellant to qualify his statement by saying that his premise would be correct “in some circumstances” — i.e. the trial court told appellant that he could not misquote the law. Appellant now contends that the trial court unduly restricted his argument and that the conversation with the trial court gave the jury an impression of what the trial judge felt of counsel’s argument. The conversation is not likely to arise on a new trial. On the other issue, the trial court has a wide latitude of discretion in controlling the extent, scope, range and propriety of arguments to the jury and we cannot say that he abused his discretion in not permitting appellant to misquote the law.

POINT VIII. Appellant made a great ploy to thfe Governor to stay appellant’s execution on tha basis that without the Governor’s intervention appellant would have been executed before he could exercise his right of appeal because of the necessary delay in obtaining the transcribed testimony. Appellant overlooked the fact that he could have filed with this court a partial record, consisting of only the judgment entered by the trial court, and have obtained a stay from this court, Leggett v. State, 231 Ark. 13, 328 S.W. 2d 252 (1959).

Other contentions raised by appellant with reference to the constitutionality of the Arkansas Death Penalty Statute are without merit, Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

Finally appellant contends that when we compare this case with others, we should reduce his sentence to life without parole. We find no merit to this contention. Appellant’s assertion that “this was a gun battle type situation without a thought of the consequences because of the instinct way the incident occurred” is not supported by the record. Steve Cardwell, an eye witness, testified that appellant shot Officer Basnett twice before the officer drew his gun.

POINT IX. Appellant’s contention that the trial court should have relieved the public defender and appointed him private counsel has no basis in fact and we consider it without merit.

Appellant’s motion to disqualify the trial judge had no merit, Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966). Furthermore, in view of our holding that the trial court should have granted the motion for a change of venue, the issue is not likely to arise on new trial.

Appellant contends that the capital felony murder statute is invalid because the killing of an ordinary citizen under the same circumstances in which a policeman is killed is only first degree murder — i.e. life imprisonment at most. We find no merit to this contention, Finley v. California, 222 U.S. 28, 321 S. Ct. 13, 56 L. Ed. 75 (1911). A policeman is society’s bulwark or badge of security and the killing of a policeman while performing his duties is an attack upon society’s security as a whole as compared to an attack upon an individual or the members of his family in the case of an individual. Furthermore, a policeman by the very nature of his duties is required to take risks that an ordinary citizen is not obligated to participate in. There is also the pragmatic consideration that unless courts can be expected to administer justice according to law, then the officers, who must pursue and capture one such as appellant, may have a greater temptation to solve the matter before it gets to court or at least the legislature had the right to consider such matters in making the classification.

Since appellant is unable to show any prejudice resulting from any allegedly suppressed evidence, we fail to see how he is in a position to contend that the trial court erred in failing to suppress any evidence. Appellant has abstracted no evidence that was allegedly obtained illegally and used against him.

The evidence of eye witnesses shows that Officer Basnett in response to an FBI bulletin had reason to check the registration of the automobile appellant was driving. Appellant under the pretense of getting the registration out of the car pocket, sat down in the front seat of the car and shot Officer Basnett with a .38 caliber snub nosed pistol before Officer Basnett had pulled a gun. This evidence when stated most favorably to the State, as we must do on a motion for directed verdict, was ample to sustain the jury’s verdict.

Appellant complains of the trial court’s amendment of his self-defense instructions to incorporate the provision of Ark. Stat. Ann. § 41-507 (Repl. 1977), to the effect that a person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety. We can find no merit to this contention.

The trial court in accordance with long practice told the jury that “The premeditation and deliberation defined in these instructions may be inferred from the circumstances of the case.” Appellant contends that this instruction amounts to a comment on the evidence because it instructs the jury on facts it can presume. This principle of law has been stated many times, with approval, Hamilton v. State, 262 Ark. 366, 556 S.W. 2d 884 (1977), and we fail to see how appellant’s claimed self-defense makes it a comment on the evidence.

POINT X. Appellant made a number of contentions that are not likely to arise on a new trial such as the appointment of an investigator, and the expense to conduct a poll to show that he could not get a fair trial in Sebastian County and to suppress his incriminating statements.

Rule 18.3 of the Rules of Criminal Procedure permits the trial court to be informed before trial of the nature of any defense which defense counsel intends to use at trial and also the names of witnesses. Such information makes it possible for the parties to have before the court all witnesses, including rebuttal witnesses, that may be called to testify. This information prevents the necessity of giving continuances to get key rebuttal witnesses and on the record before us, we cannot see how appellant has been prejudiced or that any of his constitutional rights have been violated.

Reversed and remanded for new trial.

Harris, C.J., and Howard, J., concur.

Fogleman, J., concurs in part and dissents in part.

Carleton Harris, Chief Justice,

concurring. I am distressed today that it is necessary that this case be reversed because a change of venue was not granted. I will have to say, after reading this record very carefully, that I am forced to conclude that the reversal is warranted.

From the outset, this homicide received tremendous publicity, as'would be expected. The newspaper gave front page headlines, and television and radio likewise gave extensive publicity. It would have been almost impossible for people who read or listened to the reports not to have formed an opinion. Of course, the news media were entitled to give full reports of the slaying and of the arrest, and were entirely in order in using the pictures and stories appearing relative to the funeral, which were, after all, a tribute to a young officer performing his duties. But events included in some of the articles really had nothing to do with the slaying itself, and certainly could have been highly prejudicial. 1 refer to the fact that it was frequently mentioned that Swindler had allegedly committed two brutal murders of teenagers in South Carolina, and that South Carolina officers had come to Fort Smith. The fact that Swindler had a prison record was several times mentioned. In addition, stories pointed out that there were several guns in Swindler’s car and that the car was stolen. Television and radio stations gave extensive coverage and personnel of those stations testified as to their “coverage;” for instance, KFPW television has a coverage of about 28,000 homes at 5:00 p.m. and 24,000 homes at 10:00 p.m.; radio station KWHN has AM and FM circulation of 59,000 to 60,000 persons and, all in all, the entire county was “saturated” with news concerning the killing, the stories embracing several weeks. Also, a detective magazine, “Inside Detective,” distributed by S&S News Agency, Inc., and sold by Butterfield Trail newsstand in Fort Smith, carried a story entitled “God Help the Cop Who Stops This Guy.” An article with pictures appears relative to the defendant’s case. KISR radio station broadcast ads seven times a day for five days advertising this story.

Thirty people testified relative to whether Swindler could obtain a fair trial in that county (six stating that he could not obtain a fair trial and 24 stating that he could obtain a fair trial.). However, of that last 24, 23 were familiar with the South Carolina charges and 20 were familiar with the fact that Swindler had served time. While most of these people testified that they thought he could obtain a fair trial, it was noticeable that the people they talked with who expressed an opinion considered Swindler guilty; in fact, no one expressed the thought that he might be innocent.

More importantly, of 49 people examined during selection of the jury, 26 stated that from what they had read and heard, Swindler “did it;” 32 were familiar with the South Carolina charges and 21 were aware of his prison record. Some of these people were excused by the court for cause.

With some others, it was necessary that the defense use a peremptory challenge (all of which were exhausted), and when the jury was finally selected, it included four persons who had stated that from what they had heard they thought the man was guilty. Now, of course, each stated that he could set this opinion aside on the basis of the evidence heard and reach a verdict based entirely on the evidence. While this was the general statement made on direct examination, the prospective jurors answered in a slightly different manner when cross-examined. One juror on the panel had heard about the people killed in South Carolina, and he stated that based on what he had read and heard, his presumption was that the defendant actually shot the officer; that his opinion “right now” is that he did it. He said before he knew he was going to be on the jury panel, he discussed the case with other people and that it was everybody’s opinion that lie was guilty, and that was his opinion, too. A motion that he be excused for cause was denied and the defendant was forced to exercise a peremptory challenge. Another person, who served as a juror, stated that she “might” have an opinion which she got' from the media, but not one that could not be changed, depending on the facts presented in evidence. She was aware that he was supposed to have murdered two people, had heard a lot of talk about the case to be tried, felt that he “probably did it,” considering all that was done and had been said. When asked if she would be able to set aside what she had heard about him being in prison and having been suspected of other crimes, the prospective juror answered, “No. It is bound to have some effect, 1 should think.” A motion to excuse for cause was denied, and this person served on the jury. Another lady who served on the jury stated that she had discussed the case with other people and that they thought it was a foregone conclusion that Swindler killed the officer. She said these people accepted the facts as they were related in the paper and on television and that she probably came up with a foregone conclusion, too. The defendant’s motion to excuse for cause was overruled and this lady served on the jury.

I will just say that I served for a number of years in the prosecuting attorney’s office and am now in my 22nd year on this court, and the prospective jurors knew more purported facts about the defendant’s background, and based on what had been heard in the news media, more had formed at least tentative opinions as to guilt, than any case 1 have ever come into contact with.

Of course, what we are confronted with is the age-old problem of trying to work out a balance between the First (free speech) and Sixth (fair trial) Amendments.

I recognize, and the courts have recognized for years, that it would be almost impossible today to draw a jury involving any prominent case where the prospective jurors would be entirely unfamiliar with any alleged facts or issues and that is the reason for the ancient rule, “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” In general, this has been sufficient to qualify a juror to serve. This was commented upon in Irvin v. Dowd, 366 U.S. 717. In that case, six murders were committed in the vicinity of Evansville, Indiana. The defendant was arrested and shortly thereafter, police officers issued press releases widely publicized, stating that the defendant had confessed to the six murders. At his request, he was granted a change of venue to the adjoining county, but further change of venue because of inflammatory publicity was denied. Irvin was convicted, and after the con-fiction was affirmed by the Indiana Supreme Court, Irvin instituted a habeas corpus proceeding to the United States Supreme Court. The opinion, in giving some of the facts, states:

“A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner’s offer to plead guilty if promised a 99-year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted).”

Many of the stories identified' the defendant as a parole violator and fraudulent-check artist, and shortly before the trial, carried stories that he had already admitted murders of several other people. The court then quoted the ancient rule (earlier quoted here), but made it clear that a juror exposed to prejudicial publicity is not proven impartial by his mere declaration that he will not allow such evidence to influence him. The court stated:

“Here the ‘pattern of deep and bitter prejudice’ shown to be present throughout the community, cf. Stroble v. California, 343 US 181, 96 L. Ed. 872, 72 S. Ct. 599, was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.”

I am not nearly so much concerned about publicity that arises after the trial has commenced. For one thing, the news releases are, in the main, based on what the witnesses actually said, i.e., hearsay or incompetent evidence is not a part of such a news story. Then, too, after all, the objective is to protect the jury from becoming aware of outside reports, and if necessary, a jury can be sequestered. But l am disturbed about newspaper stories and television releases that occur at the time, or soon after, the crime occurs, and for days and weeks thereafter, I suppose mainly because there are so few answers (if indeed there are adequate answers) to the problem. Let me make it very clear that 1 do not favor any “gag” rule and prior restraint is invalid — but though it were otherwise — 1 still would not favor it since l strongly support a free and unfettered press. Accordingly, I really only know of three things that, at least, constitute a partial answer. First, where publicity, including matters which could well be prejudicial to a fair trial for a defendant, runs rampant throughout the community, a change of venue would have to be granted. This is only partially satisfactory for the reason that our constitution provides that if a change of venue is granted, it shall be to some other county in the same judicial district. Article 2 § 10 Arkansas Constitution. It is hardly necessary to say that, while feelings may not be as strong in an adjoining county, still, the inhabitants of that county are fairly well acquainted with the news stories and the television and radio reports. Certainly, there would be much less prejudice several counties away from the county in which the crime was committed — but that is not possible under our constitutional provision. Of course, Sebastian County is a circuit within itself, and in such event, this case would be transferred to an adjoining county. See Cockrell v. Dobbs, Judge, 238 Ark. 348, 381 S.W. 2d 756.

Time is the greatest healer for grief or unpleasant occurrences, and it may be that cases of the nature here under discussion should not be set for trial until a sufficient “cooling off period” has elapsed. What amount of time this would involve, l cannot say; of course, it might well be necessary that a defendant move for the continuances to prevent a possible later claim that he had not received a speedy trial. Since the delay would be for his benefit, I cannot see why a defendant would object to taking such a step.

A third possibility is voluntary action on the part of the news media, and after all, a great deal of restraint would not be required. As earlier stated, certainly the media has the right, even the duty, to report crime, and is privileged to give the necessary details of the particular offense; if the suspected perpetrator has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he might present, would also be very much in order.

Perhaps I can briefly summarize information that may well prove prejudicial. The things that I will mention are included in the American Bar Association Standards relating to fair trial and free press, although those standards are much more comprehensive, and I understand under revision at the present time. I do not necessarily agree with all these standards, and I shall only mention those that I consider go to the “heart of the matter” and only insofar as they relate to the selection of an unbiased and unprejudiced jury. I agree that the following categories of information are prejudicial to a fair trial and they have been so declared in various court opinions.

“The prior criminal record (including arrests, indictments, or other charges of a crime), or the character or reputation of the defendant;
The existence or contents of any confession, admission, or statement given by the defendant, or the refusal or failure of the defendant to make any statement;
The performance of any examinations or tests or the defendant’s refusal or failure to submit to an examination or test;
The possibility of a plea of guilty to the offense charged or a lesser offense;
The defendant’s guilt or innocence or other matters relating to the merits of the case or the evidence in the case . . . . ”

Actually, if only the first two mentioned were omitted from news stories and broadcasts, I feel that a change of venue in many a case would be avoided.

I understand (I use this word because I was not a participant) that a few years ago, a committee composed of attorneys and members of the news media had a number of meetings relative to the American Bar Standards, but never did reach any satisfactory conclusions. Sometime thereafter, a committee representing the Arkansas Bar Association filed a petition with this court, seeking the adoption of five rules to existing rules of criminal procedure, which would have established guidelines covering the release and publication of information in connection with criminal proceedings. The Arkansas Press Association, a leading journalism society (Sigma Delta Chi) and a number of individual newspaper reporters were opposed to the proposed rules. This court unanimously entered an opinion on May 1, 1972, denying the petition. See 252 Ark. 418, 479 S.W. 2d 533. We expressed doubt about the constitutionality of some of the proposed provisions and further stated that we were not convinced that we had a problerq with court news dissemination that required the adoption of rather rigid rules covering all phases of the subject. I am still of the same view, but certainly wish that something could be done relative to the question of pre-trial publicity that would prevent, or at least minimize, the probability of disqualification of prospective jurors. I really think that a committee composed of judges, lawyers, law enforcement officers, and officials of the media, newspapers, television stations, and radio stations, could review the matter under discussion and come out with a helpful solution (not necessarily the recommendations of the ABA) — perhaps not perfect — but certainly a progressive step in meeting this problem.

I may be well wasting my time in writing this concurrence, but this problem I can foresee as happening again and again. Having to retry a case takes time — it takes money — and a final conclusion is wearisomely protracted. This is neither fair to the public, nor to a defendant, and any efforts that can be made to remedy the situation are worth a try.

I am persuaded that all mentioned, jurists, lawyers, law enforcement officers, members of the news media, and, of course, the citizens of our state, are interested in achieving justice as rapidly and efficiently as possible, and 1 would hope that suggestions could be offered that would be workable and satisfactory to all concerned.

George Howard, Jr., Justice,

concurring. The United States Supreme Court in reversing the death sentence imposed in the case of Witherspoon v. Illinois, 391 U.S. 510, made the following observation:

. . [A] State may not entrust the determination of whether a man is innocent or guilty to a tribunal ‘organized to convict.’ ... It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.
“Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.”

In Witherspoon, thirty-nine veniremen, including four of the six who indicated that they did not believe in capital punishment, had acknowledged having conscientious or religious scruples against the infliction of the death penalty or against its infliction in a proper case and were excluded without any effort being made to find out whether their scruples would invariably compel them to vote against capital punishment.

One venireman who admitted to a religious scruple against the death penalty when asked: “You don’t believe in the death penalty?” She replied: “No.” But later she stated she had no religious scruples against capital punishment and further stated that she would not “like to be responsible for . . . deciding somebody should be put to death.” She was excused.

In Maxwell v. Bishop, Penitentiary Superintendent, 398 U.S. 262, the United States Supreme Court, in reversing this Court’s affirmance of Maxwell’s death sentence, stated:

“As was made clear in Witherspoon, ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. ’... As we there observed, it cannot be supposed that once such people take their oaths as jurors they will be unable ‘to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.’ . . . ‘Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.' . . . See also: Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138 (1969).

In Maxwell, one prospective juror was successfully challenged for cause solely on the basis of the following exchange:

“Q. If you were convinced beyond a reasonable doubt at the end of this trial that the defendant was guilty and that his actions had been so shocking that they would merit the death penalty do you have any conscientious scruples about capital punishment that might prevent you from returning such a verdict?
“A. I think I do.” (Emphasis supplied)

Still another member of the panel was dismissed after the following dialogue:

“Q. Mr. Adams, do you have any feeling concerning capital punishment that would prevent you or make you have any feelings about returning a death sentence if you felt beyond a reasonable doubt that the defendant was guilty and that his crime was so bad as to merit the death sentence?
“A. No, 1 don't believe m capital punishment.' (Emphasis supplied)

In the instant case, veniremen were excused from serving on appellant's jury for reasons essentially similar to the ones quoted above in Maxwell. For example, one prospective juror was asked:

“Q. Would you vote lo impose the death penalty if that were called for under the law of Arkansas?
“A. I doubt it.” (Emphasis added)

The prospective juror further testified:

“Q. It wouldn’t matter how bad the fact situation was, you would vote against the death penalty?
“A. Yes. 1 believe 1 have verified that.” (Emphasis supplied)

Another prospective juror was excused following this exchange:

“Q. In other words, you would vote against it? You know right now no matter what the fact situation develops here, you know right now you would vote against the death penalty?
“A. I believe so.” (Emphasis added)

Another prospective juror testified as follows:

“Q. . . . [Cjould you and would you vote for the death penalty?
“A. I don’t think so.” (Emphasis added)

There were other instances where prospective jurors were excused when they voiced general and ambiguous objections to imposing the death sentence. In my judgment, the trial court committed reversible error in excusing those prospective jurors who were not unequivocally committed to the death sentence. In substance, appellant’s jury in the words of the Supreme Court in Witherspoon, was stacked against the appellant and this cannot be squared with the Sixth and Fourteenth Amendments to the Constitution of the United States.

In the recent case of Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399 (1976), the United States Supreme Court made the following comment in reversing a death sentence:

“. . . Unless a venireman is ‘irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings’ ... he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.”

In Davis, only one prospective juror had been excluded in violation of the Witherspoon standard.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I agree that the conviction in this case must be reversed. I do not agree that the trial court abused its discretion in denying a change of venue in this case. The evidence presented left a great deal to surmise as to the state of mind of inhabitants of the entire county. Many of the witnesses who testified in support of the motion actually did little more than express their own opinions and reactions with little basis for knowing the attitudes of more than a few people. An opinion that it would be impossible to select 12 people from 1000 potential jurors, the identities of most of whom should have been unknown, is somewhat conjectural and the examination of 62 of them may or may not be indicative of the attitudes of the remainder. The witnesses who had discussed the case with a limited number of people (e.g., one with 50 to 75; another only with friends and social acquaintances; another with only family members; another with a half dozen or more) did not say what parts of the county these people were from or how representative they were of the entire population. At least one of the witnesses testifying in behalf of the defendant on the motion stated that the frequency of conversations about the case had “definitely reduced” by the time he testified.

I agree, however, that there were abuses of discretion in acting upon appellant’s challenges for cause and that jurors who should have been excused for cause actually served on the jury. Others were peremptorily excused by appellant and his peremptory challenges were exhausted. I do not agree, however, that one, who worked for the same company as the father of the officer killed and who had some contact with the father at work and had seen him one time since the son’s death, was necessarily biased, even though he naturally told the father that he was sorry to hear of his son’s death on the one occasion he had seen him. Neither do I agree that a female employee of the United States Marshal’s office should be excused for cause in a case involving the alleged murder of a city patrolman on that ground alone. I do think that this prospective juror’s answers on voir dire required that she be excused for cause.

I do not take the majority opinion to require an automatic change of venue upon remand after the passage of 16 months since the trial. The situation may well be different since the pervasive effect of the publicity has diminished. It seems to me that the evidence showed that adjoining counties were permeated by the publicity to about the same extent as Sebastian County.

I do not agree that “probation” and “parole” are synonymous. A strict construction of the capital felony murder statute should prevent our extending the statute beyond its plain words, but in my opinion, one on parole may be and usually is subject to imprisonment. My opinion is based upon the premise I will now undertake to outline.

Probation is the method of treating one found guilty of an offense, whereby he is not imprisoned, but released under supervision and upon specified conditions. Webster’s New International Dictionary, 2d Ed. Parole is the conditional and revocable release of a prisoner. Webster’s, 2d Ed. The former precedes and is in lieu of imprisonment. The latter follows imprisonment. It is a different manner of serving a sentence than by actual confinement. 59 Am. Jur. 2d 9, Pardon & Parole, § 10. Under Arkansas law, he remains in legal custody of the institution from which paroled. Ark. Stat. Ann. § 43-2808 (Repl. 1977). The parole board may revoke the parole and order the prisoner returned to actual custody. Ark. Stat. Ann. § 43-2810 (Repl. 1977). It is generally held that the prisoner is at all times “subject to imprisonment” as a result of being found guilty of the felony for which he was originally imprisoned. Revocation of parole simply returns the prisoner into actual confinement to serve the original sentence and is punishment for the crime for which that sentence was imposed.

Unless parole under the laws of the jurisdiction in which the parolee was sentenced and paroled differs materially from the Arkansas law, the prisoner is “subject to imprisonment” by termination of the parole until the expiration of the sentence imposed.

      This does not include the 13 or 14 examined as alternate jurors, since the alternates did not serve.

      One juror stated that she believed “he did do it,” and that she stiil had that opinion. When asked if the opinion would affect her verdict, she answered, “I couldn’t say. J would hope that I would be able to listen to what was brought in with an open mind and take it from there.” Still, however, she was unwilling to say “at this particular moment” that her prior feelings would have no effect. The court stated, “I believe when I first questioned Mrs._you said you would hope that you would be able to set aside your opinion and just base your verdict on the evidence of the law. Does that still hold true, that statement?” She answered, “Yes, sir. I hope that I could be that type of person and be able to do that.” Thereupon, the court refused to grant the motion to excuse her for cause.

      Of course, this solulion would likewise pose problems since il would be necessary that witnesses, probably most of whom live in the county where the crime occurred, and officials would have to travel to the new county where the trial was to be held, necessitating great expense and inconvenience.

      This summary of categories is taken from (although I have only used a small part) “Courts and the News Media” published by the National College of The State Judiciary, University of Nevada.

      For instance, in the present case, I think undoubtedly one of the most prejudicial items conveyed to the public was the fact that this defendant was accused of a heinous double murder in South Carolina, and as herein pointed out, a great majority of the jury panel was familiar with this fact.

      No confession was involved in the instant case.

      The proposed rules mainly dealt with restrictions on court officials, or events occurring in the courtroom.

        See: Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113.


source: Caselaw Access Project

author: Frank Holt, Justice. George Howard, Jr., Justice,

license: Public Domain

text:
    John SAXTON v. ARKANSAS GAZETTE CO. and Carol GRIFFEE
    78-19
    569 S.W. 2d 115
    Opinion delivered July 17, 1978
    (In Banc)
    [Rehearing denied September 11, 1978.]

      Charles S. Gibson, for appellant.

      Kent R. Foster and Phillip Carroll, for appellees.
   Frank Holt, Justice.

Appellant brought suit against appellees to recover compensatory and punitive damages for libel. In the process of discovery, appellant sought the identity of a source of information referred to by appellee Griffee, a reporter, in articles written by her and published in the appellee Arkansas Gazette. Griffee refused to reveal her source stating the identity was privileged. Appellant filed a pretrial motion to compel discovery. After a hearing, the court found that appellant had not made reasonable efforts by deposition or other means to learn the identity of the informant nor reasonable efforts to show publication with malice, bad faith and reckless disregard of whether said publications were false or not and therefore denied the motion to force disclosure until the appellant shows that the articles were written and published in bad faith, with malice and not in the interest of the public welfare. Further, the disclosure of sources was privileged pursuant to Ark. Stat. Ann. § 43-917 (Repl. 1977). Subsequently, after giving appellant additional time to complete his discovery and supply the court with depositions in opposition to appellees’ motions for summary judgment, the court granted their motions dismissing appellant’s complaint. Appellant first contends the court erred in denying his motion to compel appellee Griffee to disclose the identity of her source. Appellant argues that no privilege exists which permits a new reporter’s refusal to disclose confidential sources citing Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972); Carey v. Hume, 492 F. 2d 631 (D.C. Cir. 1974); and Caldero v. Tribune Pub. Co., 98 Idaho 288, 562 P. 2d 791 (1977), cert. denied, 98 S. Ct. 418 (1977).

However these cases are distinguishable factually and legally from the instant case inasmuch as they all involve the assertion that a reporter has an absolute privilege under the First Amendment of the United States Constitution not to disclose the informant’s identity. These cases did not, as here, involve a statutory privilege for news reporters. Significantly, in both Branzburg and Caldero, it was noted that a number of states, including Arkansas, have provided editors and news reporters with a statutory privilege.

§ 43-917 provides:

Before any editor, reporter, or other writer for any newspaper . . . shall be required to disclose to any Grand Jury or to any other authority, the source of information used as the basis for any article he may have written, published, or broadcast, it must be shown that such article was written, published or broadcast in bad faith, with malice, and not in the interest of the public welfare. (Italics supplied.)

This section was originally adopted as § 15 of Initiated Act No. 3 of 1936. The Act was entitled an “Act to Amend, Modify and Improve Judicial Procedure and the Criminal Law, and for other purposes.” The Act contains various provisions dealing with the administration of justice in our courts which are applicable to both criminal and civil proceedings. Further, the use of the words “to any other authority” in this section of the Act clearly indicates that the privilege asserted here is applicable to civil proceedings. Hence we cannot agree with appellant’s argument that this section of the Act is restricted to criminal proceedings.

Appellant also argues that the trial court, by its ruling, imposed upon him, as a condition precedent to any disclosure by appellee Griffee, the burden of meeting the requirements of N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); i.e., proof of malice, bad faith, or reckless disregard of the truth to sustain a libel action. However, this the trial court did not do. The motion to compel was denied by the trial court due to appellant’s failure to make a reasonable effort to determine the informant’s identity and to make some reasonable showing of publication with malice, bad faith, or recklsss disregard of the truth. In the circumstances, the motion to compel disclosure was properly denied in accordance with our statute. See also Carey v. Hume, supra; Cervantes v. Time, Inc., 464 F. 2d 986 (8th Cir. 1972); Baker v. F. & F. Investment, 470 F. 2d 778 (2nd Cir. 1972); and Garland v. Torre, 259 F. 2d 545 (2d Cir. 1958), cert. den., 358 U.S. 910, 79 S. Ct. 237, 3 L. Ed. 2d (1958).

Neither can we agree with appellant’s contention that appellee Griffee, by the voluntary disclosure of the identity of one of her sources, waived whatever privilege she had. Griffee, in her deposition, stated that she had told her boss and a deputy prosecuting attorney the name of the person she thought was her anonymous source. She explained to them that the name “had to be kept confidential, strictly.” However, at the hearing on appellant’s motion to compel disclosure, Griffee testified that although she had thought she had determined the identity of the source, she was later told by the deputy prosecutor that she was incorrect. He did not tell her the name of the source. Appellant’s argument that Griffee’s actions constituted waiver of her asserted privilege is unconvincing and unsupported by any citation of authority. Also it does not appear the argument was presented to the trial court.

Appellant also contends the court erred in granting appellees’ motion for summary judgment. He argues that since a summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, the court erred because a fact issue existed, when viewed most favorably to him, as to whether the article was false and also on the issue of knowledge or reckless disregard of its falsity.

However, even if the publication that the minutes were falsified is incorrect, appellant, who is a public official, is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he also “proves that the statement was made with ‘actual malice’ — that is, with knowledge it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, supra, and Gallman v. Carnes, 254 Ark. 987, 497 S.W. 2d 47 (1973). Further, in Gallman, we quoted with approval the passage in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968) to the effect that:

[RJeckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. . . . Failure to investigate does not in itself establish bad faith.

Publication with knowledge of falsity or with reckless disregard of whether it was false or not must be proved by “clear and convincing” evidence. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971).

Here both parties submitted depositions and affidavits of witnesses to the court for its consideration in ruling on appellees’ motions for summary judgment. The evidence adduced reflects that on June 26, 1975, the Arkansas Soil and Water Commission met to consider applications from various towns for grants and loans, one of which was an application from the City of Mena. Appellee Griffee was present at the meeting. Her notes as well as those of two other persons present (the Commission’s secretary and another state employee) reflect that in regard to the Mena application, the Commission referred the application to the Department of Local Services with the recommendation that it receive top priority consideration subject to available funding. On June 27, 1975, the Gazette carried a story under the byline of Griffee which reflected this action. Subsequently, on July 3, 1975, Griffee received an anonymous letter stating that the minutes of the Commission’s meeting on July 26 had been written to reflect that it had approved the application and sent it to the Governor for final approval. Thereafter, Griffee commenced her investigation of the matter, and on July 4, 1975, published the first of a series of articles in which it was stated that appellant had falsified the minutes.

The minutes of the meeting, as drafted under appellant’s direction, state:

On motion of Mr. Gibson, seconded by Mr. Landers, the Commission voted to recommend approval of the City of Mena’s application of the Water, Sewer and Solid Waste Management Systems Revolving Fund subject to availability of funds. The Commission stipulated that a grant in the amount of $86,000 be made available and the remainder of the city’s request, $80,566, should be disbursed as a 40 year loan to be repaid with 5 percent interest.

Appellant admitted tha the Commission later determined that he “had drafted the minutes not in accordance exactly with what they had said. ” He denied the minutes were false but admitted “that the Commission found that the language [he] inserted concerning the grant and the loan and the terms of the loan should not have been inserted by [him] in the minutes” and was deleted by it.

Appellant also testified by deposition that he had no evidence to prove that Griffee published the articles with knowledge of any falsity or reckless disregard thereof. He stated he could “only suppose” malice in this case and further, “]o]n that first article, she may have thought what she put in the paper was correct.” He asserted that since the Commission approved the minutes after deleting the incorrect portions of them, the court could infer malice on appellees’ part. Appellant also presented the affidavit of a Commission member which stated that appellant’s draft minutes correctly described the action taken by the Commission.

Appellee Griffee, by affidavit, stated she believed the contents of her articles were true and correct and still believed the minutes prepared by appellant did not correctly reflect the action taken by the Commission. Attached to her affidavit were numerous exhibits which support her conclusion. We see no need to recount further evidence. Suffice it to say that, when the evidence is viewed most favorably to appellant, it certainly cannot be said that he sufficiently demonstrated a fact issue existed in regard to whether the news articles were either written or published with actual malice; i.e., with knowledge of falsity or with a reckless disregard of falsity. Here we are of the view that appellees met the required investigatory standards as prescribed by the controlling decisions interpreting the First Amendment as to freedom of the press. Accordingly, we affirm the trial court’s action in sustaining the motions for summary judgment. See Gallman v. Carnes, supra.

Affirmed.

Howard, J., concurs.

George Howard, Jr., Justice,

concurring. I concur in the affirmance of the trial court’s action in granting a summary judgment in behalf of appellees, Arkansas Gazette Company and Carol Griffee, resulting in a dismissal of the complaint filed by appellant, Executive Director of the Arkansas Soil and Water Conservation Commission, a public official of the State of Arkansas, alleging that he was libeled by appellees and, accordingly, sought damages in the sum of $1,000,000.00. While the Court bases its decision on appellant’s failure to meet certain State statutory requirements, I base my vote to affirm on the belief that the First and Fourteenth Amendments to the United States Constitution afford a greater protection to the press and citizens to criticize and comment freely on the manner in which public officials perform their public stewardship.

It is my view that the privilege to criticize public officials’ conduct, despite the possible harm that might develop, is unconditional and absolute. See: Bridges v. California, 314 U.S. 252, 62 S. Ct. 190; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S. Ct. 328. Relevant parts of the First Amendment provide as follows:

“Congress shall make no law . . . abridging the freedom of speech, or of the press.”

It is universally recognized that the above quoted First Amendment provisions are applicable to States under and pursuant to the Fourteenth Amendment to the United States Constitution.

The position that I take in this case does not mean, however, that the First Amendment protection extends to libelous matters directed against the private conduct of a public official or private citizen.

Generally, legislators, judges, administrative and executive officials possess absolute immunity against liability for defamatory words spoken in connection with their public duties. See: Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335; City of Chicago v. Tribune Company, 139 N.E. 86. The reason asserted for this immunity is that public officials should be unhampered, or uninhibited, in any way, in serving the public will. Thus, it seems not only from the standpoint of First Amendment protection, but even within the scope of equal protection of the law, that the press and citizens should likewise be immune from their criticism of official conduct. In this way, the press and citizens will be free “to applaud or to criticize the way public employees do their jobs from the least to the most. ” See: Concurring Opinion of Mr. Justice Black in Barr v. Matteo, supra.

One may inquire, if the press is afforded an absolute privilege, what protection is there against abuse and reckless reporting. I submit that not only is there an opportunity for the public official to respond with the truth in order to illustrate any unsubstantiated opinions or deliberate misstatements, but those news media that are susceptible to indulging in irresponsible reporting would run the risk of losing credibility and influence in the community. Abridgement of a free press is not the solution. Moreover, it must be remembered that a public official who has assumed the responsibility of handling the peoples’ business must expect criticism and comments about his stewardship.

I believe the Court should have gone beyond the statutory law in affirming this case and, accordingly, I submit this concurring opinion.


author: Darrell Hickman, Justice.

text:
    Preston R. FORD v. STATE of Arkansas
    CR 78-55
    569 S.W. 2d 105
    Opinion delivered July 17, 1978
    (In Banc)
    [Amended on Denial of Rehearing September 5, 1978.]

      Mickey Buchanan, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Preston R. Ford was convicted in Little River County Circuit Court of the manufacture of marijuana and sentenced to seven years in prison. He alleges two errors on appeal, only one of which merits discussion. He alleges that the marijuana, admitted into evidence at trial over his objection, was taken from his field without a search warrant.

We note that appellant’s statement of points to be relied upon is unduly lengthy, argumentative and in violation of Supreme Court Rule 9 (c). His second allegation of error contains three arguments of error including one regarding illegal evidence, another regarding failure of the court to direct a verdict, and a third questioning the giving of three instructions. We have examined the record and find no merit to any of these arguments. However, Ford’s first allegation of error merits a more thorough discussion and examination.

The Little River County authorities admitted that they were aware for perhaps five days before the search and seizure that marijuana was growing in a field owned by Preston Ford and his father. The field was in a rural area and partially, if not completely, enclosed by a fence. According to Ford the property was posted on all sides and locked gates were in place to prevent entry. It may be that a portion of the fence was down in one area but that is irrelevant for purposes of our decision. It was undisputed that this was a rural field in cultivation and that no buildings or any other structures were located on the property. The authorities waited until they saw Ford on the property and then entered the property by cutting a chain on a gate and cutting a wire enclosure and gathered some 360 plants of marijuana.

Ford argues that the search and seizure was in violation of his constitutional rights because it was unreasonable and there, was no search warrant.

The trial court ruled, and we agree, that this search was not one protected by the United States Constitution but was a search of an “open field” and, therefore, permissible even without a warrant. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975). Ford argues that this field was enclosed, had no trespassing signs posted, had a locked gate, and, therefore, could not be entered without a search warrant.

The United States Constitution does not speak in terms of open or enclosed fields but rather says people have the right to be “secure in their persons, houses, papers and effects against unreasonable searches and seizures . . . . ” Amend. 4, U.S. Const. This field, of course, was neither of the protected items described, nor was it an extension of any part of Ford or his home. We cannot see extending the words of the constitution to include this field as a protected item, place, or extension of a person even though it was fenced and entry could only be gained by climbing over a fence, cutting a fence or forcing a locked gate.

Affirmed.

Harris, C.J., and Holt and Howard, JJ., dissent.


author: George Howard, Jr., Justice.

text:
    COMMISSION ON POLLUTION CONTROL AND ECOLOGY v. Worth JAMES (MODEL FILL, INC.)
    78-28
    568 S.W. 2d 27
    Opinion delivered July 17, 1978
    (Division II)

      Spitzberg, Mitchell & Hays, by: W. Christopher Barrier, for appellant.

      Friday, Eldredge & Clark, by: Boyce R. Love, for appellee.

      Bachmann & Weltchek, P.A., by: Andrew Weltchek, for amicus curiae, ACORN.
   George Howard, Jr., Justice.

This appeal involves the application of appellee for a permit to construct and operate a sanitary landfill on a thirty (30) acre tract of land that is part of a larger tract of land consisting of 253 acres commonly known as the “Worth James Airport, on Mabelvale Pike north of Fourche Creek.” The proposed landfill site is approximately three-fourths of a mile east of Mabelvale Pike.

Although the administrative staff of the Commission on Pollution Control and Ecology recommended approval and granting of the permit, after an investigation was conducted, the Commission denied the permit for the following reasons:

1. The site and access roads are subject to increasingly frequent flooding.
2. Mabelvale Pike serving the entrance to the site, is in poor repair, carries traffic beyond its capacity, and should not be subjected to additional heavy truck traffic without compelling necessity.
3. The proposed site is close to and in sight of a number of residences, whose value would be adversely affected by its presence.
4. There is no demonstrated public or private need for the landfill.
5. Due to the proximity to residences, even minor deficiencies in operation would have serious consequences.
6. The above-noted items render the site applied for unsuitable for a sanitary landfill under present circumstances.

Appellee appealed the decision of the Commission to the Circuit Court of Pulaski County. The Pulaski Circuit Court reviewed the matter de novo in accordance with Ark. Stat. Ann. § 82-1906(7) and made the following findings in reversing the Commission and in directing the Commission to issue the permit:

“This Court, after reading the record and hearing additional evidence, has concluded that the action of the Commission is not warranted by the evidence and should be reversed and the case remanded with directions for the Commission to issue the required permit. The Court makes the following specific findings:
“1. Appellant is a responsible party who will operate the disposal facility under his personal supervision.
“2. The site will be well maintained as evidenced by the fact that Mr. James rejected an offer to lease the site to a landfill operator because other sites operated by the same company were less than satisfactory to him.
“3. The total acreage is well kept and maintained and surrounded by a levee.
“4. Of the thirty acre tract, only twenty acres (inside the levee) will be utilized.
“5. The site is at least one-half mile from the nearest residence.
“6. The water level is twelve to fourteen feet, and the ditch for disposal of the waste will be a maximum of eight feet in depth.
“7. Ditches will be covered and filled at the time of dumping.
“8. Mr. James is an experienced utility contractor dealing in all types of sewage, water and other pipe lines. The digging of ditches and covering same after the laying of pipe is a procedure that has been a regular part of his company operations for many years.
“9. He has adequate equipment and personnel to operate this disposal site.
“10. The increased traffic on Ceyer Springs Road because of trucks going to the site will be an insignificant amount."

For reversal of the Pulaski Circuit Court’s decision, appellant argues that the proposed site for the landfill is unsuitable, that the Pulaski County Circuit Court’s holding is not supported by the facts contained in the record and that the trial court’s action is not based upon law in that the court has substituted its judgment for that of the Commission.

As indicated previously, under Ark. Stat. Ann. § 82-1906, an appeal to the circuit court from a holding of the Commission on Pollution Control and Ecology, the matter is tried de novo either on the court’s own motion or on application of any interested party. In the instant case, appellant expressly requested the circuit court to review the matter de novo. The court having reviewed this matter de novo, our task is to determine whether or not the holding of the trial court is supported by any substantial evidence.

After carefully reviewing the record, briefs of appellant, appellee and the amicus curiae brief for Acorn, we are persuaded that the trial court’s action is supported by substantial evidence and, accordingly, we affirm.

First, and perhaps foremost, it is clear from this record that the Commission’s own staff, after making a thorough investigation of the proposed landfill site, recommended that the permit be granted to the appellee. Ray Hightower, Chief of the Solid Waste Control Division of the Department, testified that the nearest public road is approximately three-fourths of a mile to the west of the proposed site and that the nearest dwelling house is more than one-half mile. Mr. Hightower further testified that in considering all of the solid waste disposal landfills operating in the State of Arkansas, something in the neighborhood of ninety, only one has an area equally as large as the site in question that does not have residential dwellings within close proximity of the landfill sites. Thus, it seems clear that the distance of appellee’s proposed landfill site to the nearest residential dwelling falls within the rule rather than the exception.

Mr. Hightower further testified that the anticipated increase in traffic on Mabelvale Pike, should the permit be issued to appellee, would be insignificant.

The report of Charles Crowson, Geologist, specifies that the proposed landfill site has adquate cover material to protect the ground water provided the area only is excavated to a depth of eight feet. Thus, the ground water which lies at a depth of 13 to 15 feet, will not be contaminated inasmuch as the overlying silty clay is adequate to separate the underground water from the refuse above as well as any drainage therefrom. Moreover, Mr. Crowson also testified that the proposed landfill site lies within the boundaries of a flood-prone area and has experienced high water at least twice within the past seven years. However, Mr. Crowson testified that a levee of a minimum elevation of 257 feet above sea level is adequate to protect the site from flooding. It is clear that the appellee constructed a levee approximately twenty years ago around his entire 263 acres in order to deal effectively with the flooding conditions and that water flowed over the levee only once during the twenty year period; and that appellee, as a consequence, has raised the levee since that time in order to cope with the problem.

We are not impressed with appellant’s argument that appellee has failed to demonstrate a need for the landfill site inasmuch as it is clear that the appellee is the owner of the property and he has a fundamental right to engage in a lawful business so long as his conduct conforms to whatever regulations may be in existence in the public’s interest. As appellee has emphasized in his brief, indeed, the Arkansas Legislature did not intend for the Commission to require an applicant to demonstrate that he had customers or users for his landfill before he is entitled to a permit. Indeed, under our free enterprise system, the right or privilege to pursue a legitimate occupation is not predicated upon an affirmative showing to a regulatory agency the venture will be a success.

Finally, under the holding of the trial court, appellee is afforded an opportunity to turn undeveloped and unusable land into a useful asset for the Little Rock community, not only from the standpoint as an additional outlet to dispose of refuse, but the prospects are such that the entire community may be benefited by converting unsightly and idle property into a valuable asset by way of community development. On the other hand, if in the future it is found that appellee’s proposed sanitary landfill becomes a nuisance, residents within the area, indeed, are not foreclosed by our action in sustaining the trial court to institute action in the proper court for relief.

Affirmed.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.

      In relevant part, subdivision 7 involving judicial review of a decision of the Commission is as follows:
      “The appeal shall be heard and determined by the court upon the issues raised by the notice of appeal. . . . The court of its own motion or on application of any party may, in its discretion, take additional evidence on any issue of fact or may try any or all such issues de novo. ... If the court shall determine that the action of the Commission appealed from is lawful and reasonable, and is warranted by the evidence in case an issue of fact is involved, the action shall be affirmed. Otherwise, the court may vacate or suspend the action appealed from in whole, or in part, as the case may require, and thereupon the matter shall be remanded to the Commission for further action in. conformity with the decision of the court.”


author: George Howard, Jr., Justice. John A. Fogleman, Justice,

text:
    78-120. CITY OF NORTH LITTLE ROCK, Eddie POWELL, Individually, and as Mayor et al v. John M. GORMAN et al 78-131. R. E. BRUCE v. Eddie POWELL, Mayor of the City of North Little Rock et al
    78-120 & 78-131
    568 S.W. 2d 481
    Opinion delivered July 17, 1978
    (In Banc)

      78-120. Jim Hamilton, North Little Rock City. Atty., and Spitzberg, Mitchell & Hays, by: Kent Foster and Theodore C. Skokos, for appellants.
    78-120. Charles L. Carpenter and Charles L. Carpenter, Jr., for appellees/intervenors.
    78-120. Morgan E. Welch, for appellees.
    78-131. Charles L. Carpenter and Charles L. Carpenter, Jr., for appellant.
    78-131. Jim Hamilton, North Little Rock City Atty., for appellees.
   George Howard, Jr., Justice.

These two appeals have been consolidated for final disposition in this opinion; case number 78-120 is from the Pulaski County Chancery Court, Second Division, while case number 78-131 is from the Pulaski County Circuit Court, Second Division.

The central issue in both cases is whether Ordinance Number 4835, which was passed by the North Little Rock City Council on December 27, 1977, which increased rates for electricity sold by the City is a legislative measure or an administrative one. If the former, the ordinance would have to be referred to the voters of North Little Rock, as requested by a written petition, pursuant to Amendment 7 of the Arkansas Constitution, and if the latter, then such measure would not be subject to referendum.

A secondary issue involved is which court, the Chancery Court of Pulaski County or the Circuit Court of Pulaski County, has jurisdiction to resolve the dispute.

The pertinent facts for an understanding of the dispute, which contain all of the necessary ingredients that, indeed, characterize this controversy as one of public interest, and for a resolution of the issues before us are:

On May 9, 1977, the North Little Rock City Council enacted Ordinance Number 4755 creating the North Little Rock Electric Commission, which, among other things, conferred on the Commission “absolute powers with reference to” electrical power purchases, management, improvements, extensions and maintenance of the City-owned electric distribution system. However, Section 8 of the Ordinance contains the following reservation:

“Rale Making: Nothing contained herein shall be construed as a removal from or abdication by the City Council of the City of North Little Rock from its sole responsibility of adopting ordnances establishing rate schedules for customer classes of the North Little Rock Electric Department . . . . ” (Emphasis added)

On July 2, 1977, the Federal Power Commission approved an increase in rates for wholesale power sold by Arkansas Power and Light Company to the City of North Little Rock in the amount of $1.8 million annually. In order to collect these charges, the Commission recommended increases in electric rates to the City Council which the Council adopted by Ordinance Number 4798 entitled “An Ordinance establishing rates for electricity sold by the City . .. Providing for general fund transfers ...” on July 25, 1977. Subsequently to the enactment of Ordinance Number 4798, petitions were filed with the City Clerk requesting a referendum on Ordinance Number 4798. The special election which was held on November 15, 1977, resulted in the rejection by the voters of North Little Rock of the ordinance and the electric rate increase therein.

On December 27, 1977, the City Council again adopted Ordinance Number 4835 which set rates for electric services which were designed to collect the increase in the wholesale rates charged by Arkansas Power and Light Company. Subsequent to the action of the City Council, the City Clerk of the City of North Little Rock received, on January 24, 1978, a petition containing the signatures of more than 2,000 electors seeking to have Ordinance Number 4835 referred to the voters. On January 30, 1978, the City Clerk certified the petition as being sufficient.

On February 3, 1978, a class action was filed in the Chancery Court of Pulaski County praying, among other things, that the City of North Little Rock, the Mayor and Council be enjoined from making use of the funds collected pursuant to Ordinance Number 4835 until such time as a referendum is held pursuant to petitions filed with the Clerk requesting the Council to call a special election; that the Mayor and City Council be ordered to proceed “forthwith with a time certain for the referendum of Ordinance Number 4835.”

On February 7, 1978, a petition to intervene was filed in the Chancery Court proceeding by Don Gilbert, Charles M. Polk, B. R. Johnson, J. W. Springer, John L. Garner, J. R. Matchett, Gene Carr and Jimmy L. Tanner, uniform employees of the City of North Little Rock, requesting, among other things, that the Chancery Court enjoin and restrain the Mayor and City Council of North Little Rock from referring Ordinance Number 4835 to the voters for approval or rejection pending a determination of the issues by the court; and for an order of the court finding that Ordinance Number 4835 was an exercise of an administrative function as opposed to an exercise of its legislative authority.

On April 7, 1978, the Chancery Court of Pulaski County held that Ordinance Number 4835 is legislative in nature and that it produces revenue, separate and apart, “from the needs for operation of the electrical department in its complete operation; such aspect of Ordinance Number 4835 is in effect taxation and Ordinance Number 4835 should be submitted by referendum to the people.” The chancery court concluded:

“IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the defendants, Eddie Powell, Art Eastham, John Whalen, John Ward, Travis Hardwick, W. B. Hudson, Charles Gassaway, Joe Anousakes and Mary Hess should be, and they are hereby, directed to call an election and refer North Little Rock City Ordinance Number 4835 to the people.”

Relative to case number 78-131 on appeal from the Pulaski Circuit Court, appellant, R. E. Bruce, filed his complaint in the Circuit Court of Pulaski County on April 20, 1978, seeking an order, a writ of mandamus, requiring the Mayor and City Council of North Little Rock to submit Ordinance Number 4835 to the voters for acceptance or rejection “without further delay.”

After the issues were duly joined, the Circuit Court found that the Pulaski County Chancery Court had held that Ordinance Number 4835 was a proper “subject for referendum” and that the chancery case was being appealed to the Arkansas Supreme Court, and therefore, until the Supreme Court acts, “there is no certainty that an election will, in fact, be required.” The Circuit Court concluded by stating:

“. . . [T]he plaintiff’s request for relief should not be granted at this time, however, in the event the Chancery Court’s ruling is affirmed, the City of North Little Rock should be prepared to immediately set the election to be held within a reasonably prompt period of time.”

THE DECISION

I.

THE CHANCERY COURT PROCEEDINGS

The appeal from the Pulaski Chancery Court, case number 78-120, may be quickly and summarily disposed of on jurisdictional grounds. For it is well settled that chancery courts in this State have jurisdiction only to review the action of a county or city clerk in determining the sufficiency of local petitions for initiative or referendum under and pursuant to Amendment Number 7 to the Arkansas Constitution. See: Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476. Sufficiency of the petition requesting the officials of North Little Rock to refer Ordinance Number 4835 to the people to be voted on was never challenged. Moreover, it was stipulated between the parties that the City Clerk certified that the petition was sufficient. Thus, the Chancery Court was without jurisdiction to entertain this action which involved essentially political rights as distinguished from property rights. The vindication of one’s political rights must be sought in a court of law, namely, the circuit court. Catlett, et al v. The Republican Party of Arkansas, et al, 242 Ark. 283, 414 S.W. 2d 651 (1967).

We perceive, from the record before us, that counsel for the Mayor and Council and counsel for plaintiffs, as indicated in the amended complaint, recognized the jurisdictional problem, but sought to confer jurisdictional status on the chancery court by asking the chancery court to declare the rights of the parties under our declaratory judgment provision. However, it is clear that courts of equity do not have jurisdiction to render declaratory judgments where, as here, the subject matter is not cognizable in a court of equity. Moreover, the parties may not waive the jurisdictional defect where there is no predicate or basis for equitable jurisdiction. Catlett, et al v. The Republican Party of Arkansas, et al, supra; Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412 (1944); Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278 (1963).

Finally, in Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777 (1970), we emphasized that mandamus is a common law writ for a remedy at law which was unknown to equity procedure and, therefore, is designed to enforce legal rights and thus, is for all practical purposes a procedure at law.

We, accordingly, reverse and dismiss the Pulaski County Chancery Court action for want of jurisdiction.

II.

THE CIRCUIT COURT PROCEEDINGS

Amendment 7 to the Arkansas Constitution, in relevant part, provides:

“. . . [Referendum powers of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities . . . ” (Emphasis supplied)

In Scroggins v. Kerr, 217 Ark. 137, 228 S.W. 2d 995 (1950), we made the following observation:

“Not all ordinances enacted by City Councils come under the head of ‘municipal legislation.’ City governments in Arkansas know no such complete separation of powers as would automatically classify all aldermanic activities as legislative in character.”

It is well settled that the test resorted to in determining whether any bill, law, resolution or ordinance is legislative or administrative is to determine whether the proposition is one that makes new law or to execute a law already in existence. The power or authority to be exercised is legislative in its nature if it prescribes a new policy or plan; while on the other hand, it is administrative in its nature if it simply pursues a plan already adopted by the legislative body, in the instant case, the City Council of North Little Rock. See: Scroggins v. Kerr, supra; Greenlee, et al v. Munn, Clerk, et al, 262 Ark. 663 (1978).

The pivotal question that immediately confronts us is: Does Ordinance Number 4835 prescribe a new law, policy or plan: or is it one that executes a law or plan already in existence?

The City of North Little Rock, the Mayor and Council argue that the history of rate-making authority by the City of North Little Rock dictates a finding that Ordinance Number 4835 is administrative in nature and, therefore, is not subject to the referendum provisions of the Constitution.

In support of this argument, appellees contend that the Arkansas General Assembly gave to cities the authority to own and operate electric distribution systems and establish rates for electric service under Ark. Stat. Ann. § 19-2318; that Act 740 of 1977 authorized the City to establish a commission for the management of its electric system and pursuant to this authority, the Council, on May 9, 1977, adopted Ordinance Number 4755 which created the North Little Rock Electric Commission and reserved to the Council the authority to set rates as recommended by the Commission and allocate such funds to the North Little Rock General Fund as the Council deemed appropriate; thus, the adoption of Ordinance Number 4835 by the Council was merely the administration by the Council of Ark. Stat. Ann. § 19-2318, Act 740 of 1977 and Ordinance Number 4755.

While appellees’ argument is interesting and at first blush seems plausible, we are not persuaded that this argument comes to grips with an element contained in the rate making process that clearly and unequivocally makes Ordinance Number 4835 legislative as opposed to administrative.

First, the Council expressly reserved the power in Ordinance Number 4835 to enact ordinances establishing rate schedules for electric service; and, secondly, Ordinance Number 4835 was enacted for the expressed purpose of producing revenue for the City’s General Fund as opposed to generating funds for the operation of the electric department. Moreover, it has been conceded by the parties to this action that the rate increase proposed under Ordinance Number 4835 is designed to benefit the City’s General Fund. Under these circumstances, the people of North Little Rock having duly complied with the constitutional provisions for referring Ordinance Number 4835 to a vote, the people of North Little Rock should be afforded an opportunity to voice their approval or disapproval of the proposition.

We conclude that appellant, R. E. Bruce, was entitled to the relief requested, namely, a writ of mandamus directed to the North Little Rock City officials requiring them to schedule an election without undue delay relative to Ordinance Number 4835. It must be remembered that the City Clerk certified the petition filed for a referendum as being sufficient on January 30, 1978, and appellant’s complaint was filed approximately fourteen weeks later. See: Lewis v. Conlee, 258 Ark. 715, 529 S.W. 2d 132 (1975).

The only function remaining to be performed in connection with the petition for a referendum is the Council’s duty to call the election which is clearly a ministerial responsibility. It is well settled that a failure to perform a ministerial duty is enforcible by a writ of mandamus. Wright v. Ward, 170 Ark. 464, 280 S.W. 369 (1926).

Reversed and remanded.

Hickman, J., not participating.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur because of the narrow grounds on which the opinion is based, i.e., (1) the fact that the North Little Rock City Council retained for itself the sole responsibility for rate making when it turned the operation of the electrical distribution system over to an independent commission, as authorized by statute; and (2) the fact that it is conceded that a major objective in the rate making ordinance was to insure a definite surplus or profit for definite municipal purposes. This is also reflected in the ordinance creating the commission by the provisions for the council filing documents evidencing the revenues necessary for general municipal purposes and for the council’s authority to make charges for allocation to the city’s general fund take any form it chooses.

Rate making for a franchised utility has always been considered to be a legislative function. Lawrence v. Jones, 228 Ark. 1136, 313 S.W. 2d 228. There is really little difference in rate making for a municipally owned utility operated by an independent commission. When the council fixes rates for that commission, not as “just compensation” as provided by Ark. Stat. Ann. § 19-2318 (Repl. 1968) but for established municipal purposes, I must agree that it acts legislatively. It could have entrusted the matter of rates to the commission it created, “subject to such restrictions as may be prescribed in the ordinance creating said board pertaining to the expenditure of surplus utility revenues, establishment of rates for service, ***.” Ark. Stat. Ann. § 19-3935 (Repl. 1968).

I suggest, however, that it is contemplated by our statutes that a municipally owned utility be operated for a profit. The term “just compensation” doesn’t mean that only the cost of operating and financing the system be uncovered. Just compensation means the market value of a product. It means full compensation. Arkansas State Highway Comm’n v. Stupenti, 222 Ark. 9, 257 S.W. 2d 37. As regards public utilities, it means a fair return on the value of the property. Black’s Law Dictionary (4th Ed.). It is significant that the provision for just compensation must be applied to franchised and municipally owned utilities alike. Statutes providing for use of the surplus income of a municipally owned utility are a clear indication of the intention of the Arkansas General Assembly that municipally owned utilities be operated at a profit and that those profits (surplus revenues) be devoted to numerous purposes. To illustrate, they may be used under various circumstances to pay bonded indebtedness of certain improvement districts. Ark. Stat. Ann. § 19-3901 (Repl. 1968); for off-street parking facilities, sanitation facilities, hospital facilities, public park buildings, improvements and facilities, auditoriums, convention centers, streets and roadways and airport improvement facilities. Ark. Stat. Ann. § 19-3931 (Repl. 1968). It seems quite possible that the rate making process for a municipally owned utility can be performed in a manner in which the commission controlling and operating it acts administratively. See Kruzich v. West Memphis Utility Commission, 257 Ark. 187, 515 S.W. 2d 71. If the council acts only in reviewing or approving or disapproving rates fixed by a commission, it might well be that it could be said to act quasi-judicially. If so, its action would be subject to judicial review on certiorari. See Ark. Stat. Ann. § 22-303 (Repl. 1962); Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S.W. 227; Williams v. Dent, 207 Ark. 440, 181 S.W. 2d 29; Jones v. Leighton, 200 Ark. 1015, 142 S.W. 2d 505; Veteran’s Taxicab Co. v. City of Ft. Smith, 213 Ark. 687, 212 S.W. 2d 341.

It seems clear to me that the rates fixed, however established, would be subject to judicial review for reasonableness, even though it might be done in a manner not subject to referendum. See Delony v. Rucker, 227 Ark. 869, 302 S.W. 2d 287; City of Malvern v. Toung, 205 Ark. 886, 171 S.W. 2d 470; 12 McQuillan, Municipal Corporations 483, § 35.37a.

I do not disagree with the majority opinion in any respect. I simply feel compelled to express these additional views.

      Act 740 of 1977 of the General Assembly of the State of Arkansas, authorizes the management of the North Little Rock Electric Department by Commission created by the City Council.

      It is clear from the record before us that the electric rates increase as evidenced by Ordinance Number 4798 were designated to offset the increase of $1.8 million in the annual charges for power purchased from Arkansas Power and Light Company in order to maintain a transfer of funds from electric revenues to the general fund of the City of North Little Rock, amounting to $2.1 million for the current budget. The funds transferred from the electric revenues are characterized as surplus, stated differently, part of the net profit derived from electric revenues and used to pay salaries of firemen, policemen, and in the maintenance of the park system and other departments of the City. It is further clear that this has been a practice followed by the City for many years. For example, the following sums, for the years designated, represent the net profit derived from electric revenues and transferred to the City’s general fund: 1975 — $2,535,000; 1976 — $2,-365,000; and 1977 — $2,025,000.

      After the voters of North Little Rock defeated Ordinance Number 4798 on November 15, 1977, the City Council, on November 21, 1977, readopted the prior electric rates in existence before the Council adopted Ordinance Number 4798 by reenacting Ordinance Number 4693.

      See: Ark. Stat. Ann. § 34-2501 which provides: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect: and such declarations shall have the force and effect of a final judgment or decree. ”