text:
    ARKANSAS PUBLIC SERVICE COMMISSION v. YELCOT TELEPHONE COMPANY
    79-71
    585 S.W. 2d 362
    Opinion delivered July 9, 1979
    (In Banc)
    [As modified on Denial of Rehearing September 10, 1979.]

      Jack M. Wilhelm, for appellant.

      Tom S. Lovett, Ltd., for appellee.
   John A. Fogleman, Justice.

On September 25, 1978, appellee, Yelcot Telephone Company, filed an application with appellant, Arkansas Public Service Commission, requesting an annual rate increase of $88,071.00. Pursuant to Ark. Stat. Ann. § 73-217(b) (Supp. 1977), appellee stated that an immediate and impelling necessity existed and requested that appellant authorize the collection of an interim annual increase of $75,000.00, subject to refund with interest at the rate of 10 percent per annum, pending a final determination of the full rate application. It was alleged that appellee’s return on common equity had fallen below one percent, and that some sort of immediate relief was imperative. As provided by the statute, a hearing was held on October 10, 1978, limited solely to the collection of the interim rates sought by appellee. By an order dated October 24, 1978, appellant denied the requested immediate rate relief, stating that the collection of such interim increases could be justified only upon a showing that a utility could not meet its minimum financial obligations, such as current payroll or interest payments. In its order, the commission stated that Yelcot produced no evidence that its ability to render adequate service will be jeopardized if emergency relief is not granted. This order also served to suspend the collection of any additional rates sought by appellee for a period of six months, during investigation of the application by appellant. Appellee’s application for a rehearing was denied on November 1, 1978. On the same day, appellee filed a “petition to review, set aside and modify” appellant’s order in the Circuit Court of Pulaski County, and on that day, the court, finding that appellee would suffer irreparable harm if unable to immediately begin collection of the increased rates, stayed appellant’s order of October 24, 1978, and authorized appellee to begin collecting increased rates designed to produce an annual increase in revenue of $88,071.00. Appellant filed a motion to vacate this order, contending that it was a final order, entered without notice to appellant and without providing appellant an opportunity to respond to appellee’s petition. Appellee filed a response joining in appellant’s request that the November 1 order be modified to have only temporary effect and to give appellant notice and ample opportunity for a hearing. The order was so modified on November 22, 1978. Appellant filed the record of the proceedings held on October 10, 1978. Appellant held a full hearing on appellee’s rate application on December 21, 1978. By agreement between the parties, the case was submitted to the court on briefs, rather than by a hearing, with appellant filing its brief on December 22 and appellee relying on its initial brief, filed with its petition on November 1. On December 27, 1978, the Circuit Court of Pulaski County entered its order, holding that appellant’s order of October 24, 1978 was arbitrary, staying the effectiveness of said order and authorizing appellee to place its new rate schedules into effect, subject to refund, pending the final investigation and determination by the appellant. Appellant filed its notice of appeal on January 24, 1979. Appellant entered its final order on March 6,1979, finding that the appellee was entitled to increased annual revenues of $98,890.00, but limiting the actual increase to the amount sought, $88,071.00.

Appellant first contends that the trial court erred in holding that the diminution of a utility’s earnings on common equity to a figure below one percent constitutes an immediate and impelling necessity, justifying the implementation of interim rates prior to a final decision on an application for a rate increase.

The portion of Ark. Stat. Ann. § 73-217(b) which appellee relied on in requesting implementation of interim rate relief provides:

. . . [Provided, however, that if the public utility contends that an immediate and impelling necessity exists for the requested rate increase, a petition may be filed with the Commission narrating such alleged circumstances, which petition must be set for hearing within fifteen (15) days from the date of the filing thereof or to such subsequent time as may be mutually agreeable to the Commission and the utility, and if the Commission finds at such hearing that there is substantial merit to the allegation of the utility’s claims, said Commission may permit all or a portion of said rate to become effective . . .

The appeal from the order of appellant is governed by the provisions of Ark. Stat. Ann. § 73-229.1 (b) (Supp. 1977). The relevant portion reads:

... The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not be extended further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas. . . .

The sole purpose of the hearing held on October 10 was to determine if appellee’s need for additional revenues was of such urgency that it constituted an immediate and impelling necessity. The only evidence presented at the hearing was the testimony of appellee’s president, Calvin Czeschin, the testimony of Russell Friedrich and the written statement of Larry Seab, both of whom were consultants on appellee’s rate application, and the testimony of three residents of the area served by the appellee.

Czeschin testified that appellee had undertaken a massive upgrading of all its facilities, including a complete rebuilding of some exchanges. A substantial portion of this upgrading process involved changing the eight and four-party rural services to one, two and four-party services. He stated that the addition of approximately $1,000,000.00 in gross plant had a substantial impact upon the earnings on common equity, which, at the time of the hearing, were “almost zero.” (The rate application filed with appellant alleged that the earnings on common equity had fallen to “below one percent.”)

The statement of Larry Seab, apparently read by Russell Friedrich, and adopted by him as his own statement, expressed the belief that appellee had a required revenue deficiency of $110,448.00, but stated that appellee was only requesting rate adjustments to make up a revenue deficiency of $88,071.00. Friedrich did not know whether the $75,000.00 interim rate increase requested would be a “minimum amount.”

The remainder of the witnesses, the Mayors of Cotter and Gassville and a resident of Cotter, all of whom were served by appellee, merely related their concern about a possible increase in their phone bill and the overall effect of inflation. Charles Kenyon testified that the service provided by appellee was good.

The Arkansas Public Service Commission is vested with two separate and distinct duties or responsibilities. The first of these is a duty to a utility company to allow it to charge rates which will provide a fair return on invested capital. The second is a duty to the public to see to it that the rates which the public must pay are not more than necessary to provide a fair return to the Company. City of El Dorado v. Arkansas Public Service Commission, 235 Ark. 812, 362 S.W. 2d 680. It is the task of the commission to weigh these interests in arriving at the most equitable rate to be charged by the utility. Because the investigation and consideration of rate applications can become such a complex and time consuming procedure, the General Assembly has given the commission the authority to suspend the collection of proposed rate increases, called “tariffs,” for periods of up to six months, during the time the commission is deliberating on the application, a provision obviously designed to protect the public from the collection of rate increases which the commission later determines to be unwarranted. Ark. Stat. Ann. § 73-217. However, in recognition of the rights of the utility companies in the state to earn a fair return on invested capital, the General Assembly has also enacted the provisions of Ark. Stat. Ann. § 73-217(b), the procedure followed by appellee in this case.

Appellant has previously held the intent of the statute governing interim rate relief is that such an option is available to a utility “as a protection to it in the event that the financial stability of the company would or could be placed in jeopardy by reason of undue delay in rate adjustments.” Re Arkansas Louisiana Gas Co., 93 PUR 3d 201 (Ark. 1972); Re Fordyce Water Co., 88 PUR NS 98 (Ark. 1951). Evidence of such “jeopardy”, according to appellant, would be the inability to meet current payroll or interest payments. Re Arkansas Louisiana Gas Co., supra, citing Re Citizens Utilities Co. of California, 89 PUR 3d 334 (Cal. 1971).

The undisputed testimony of Calvin Czeschin, supported by the introduction of schedules which accompanied the complete rate application, was that the earnings of appellee on common equity were almost zero. He attributed this to the rebuilding program undertaken and the harsh winter weather in January and February, 1978. He stated that appellee had never paid a cash dividend to the holders of the common stock and that it was presently not able to pay all of the dividends on preferred stock. He also testified that appellee had been unable to obtain additional long term financing from local banks. On cross-examination by appellant’s counsel, Czeschin stated that he did not know if appellee would be able to comply with the obligations imposed by its loan covenants, which are requirements imposed on appellee by its creditors, relating to such things as insurance and a specified ratio of earnings to interest payments. He also testified that appellee had begun to make monthly payments on its loans in an effort to meet these covenants. The rate of return on common equity allowed by appellant in appellee’s last rate increase application was 12.5 percent, according to Czeschin. The present rate Application of appellee projected earnings on common equity of 11.55 percent, with a requested revenue deficiency of $88,071.00. As a result of its hearings and investigation of the application, appellant finally concluded that the gross revenue deficiency of appellee was actually $98,890.00, but only granted the amount requested. A finding that appellee was entitled to a greater increase in revenues than that granted would also arguably support an allegation that it was entitled to a higher return on common equity than the 11.55 percent apparently granted. It was Czeschin’s opinion that the appellee could not retain current common stockholders and acquire new ones at zero return.

Appellant had the burden of showing substantial merit in its request for the interim rate increase. In the light of this testimony, recited herein, we cannot say that the trial court erred in finding that the appellant’s order of October 24, 1978, denying appellee the right to collect interim rates which would have provided an annual increase in revenues of $75,-000, was arbitrary, which, in effect, was a holding that the commission’s findings were not supported by substantial evidence. The rates established for public utilities must allow a fair return on the invested capital and avoid confiscation of the property of the utility through inadequate rates. City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474. In Arkansas Public Service Commission v. Continental Telephone Co. of Arkansas, 262 Ark. 821, 561 S.W. 2d 645, we discussed the concept of confiscation through inadequate rates, and said:

Confiscation simply means “the taking or seizing of private property to the public use as being forfeited.” Webster’s New International Dictionary, 2d Ed. In order for rates to be confiscatory, it is not necessary that they be such that the stockholders receive no return and the utility must immediately default on its debt. If the rates ultimately and foreseeably produce this result, the forfeiture is just as complete as it would be if the effect were dramatically instantaneous. ... A wound is fatal when death is a predictable consequence, even though it is lingering rather than instantaneous.

As pointed out in appellee’s brief before this court, a utility should have a fair return on invested capital (and consequently, freedom from confiscatory rates) at all times, not just part of the time, and appellant’s denial of interim rates during its investigation of the appellee’s rate application was not supported by any substantial evidence, and constituted a confiscation, albeit a temporary confiscation, of the appellee’s property.

Appellant argues that appellee was aware of the time delays inherent in a rate application before the Public Service Commission, and that it should not be able to wait until its earnings on common equity approached zero before filing a rate application and then request that its customers be subjected to immediate rate increases pending final determination. The following testimony of Calvin Czeschin is particularly applicable to this contention:

At the end of last year we did not have a good earnings year. We went into January and as you can remember, January and February of this last year, we thought, well, we have got a lot of maintenance and we have got people sitting around because of the bad weather and April and May ought to be better. Well, April and May weren’t and that is when we came to the decision to start on this and we contacted Mr. Seab in May and we have been working on this rate case since May.
We were hoping times would get better and we would not have to file a rate case. We didn’t anticipate, we were hoping. We had to get past January and February because they were unfair months to look at. There was no way you could look at them as normal months. So when we got to March, April and May, and they didn’t do any better, we knew we had to come in for rate relief.

We do not feel that appellant should be penalized for a conscious effort to attempt to avoid, or at least postpone, a rate increase. We are similarly unimpressed with appellant’s contention that appellee is imposing a burden on its customers due to unfortunate management decisions. It seems to us that if appellee had filed its rate increase in the latter part of 1977, as suggested by appellant, the customers of the appellee would have been required to pay the increased rates earlier. It is important to keep in mind that the rate application of appellee was granted in full and that the collection of interim rates was protected by a bond filed by appellee, providing for refund of any rates found to be unwarranted, plus interest at an annual rate of 10 percent.

We simply do not agree with appellant’s argument that the trial court erred in staying the effectiveness of the October 24 order of appellant and authorizing the collection of the increased rates by appellee, under the circumstances prevailing here. Because of the lack of any substantial evidence to support the order of appellant, we hold that the trial court did not err.

Appellant’s second point for reversal is that the trial court erred in entering its order of November 1, 1978, alleging that it was a final order which was entered without notice to appellant and without providing appellant an opportunity to respond to the petition filed by the appellee. We find this argument unpersuasive. As stated previously, upon motion of both parties, the court entered a second order on November 22, 1978, modifying the original order. This second order declared that the intended effect of the first order was only temporary and that the effectiveness of the appellant’s order, which suspended the new rates sought by the appellee, was to be stayed only during the review by the court. Appellant was given a full and complete opportunity to respond to the appellee’s petition, which it did in a brief filed with the trial court on December 22, 1978, as well as an opportunity to file the record of the proceedings had before it on October 10, 1978.

Any error by a lower court is presumed to be prejudicial unless we can say with assurance that it was not prejudicial to the rights of the appellant. Price v. Daugherty, 253 Ark. 421, 486 S.W. 2d 528. See also, International Harvester Corp. v. Hardin, 264 Ark. 717, 574 S.W. 2d 260; Men v. Arkansas State Highway Com’n., 247 Ark. 857, 448 S.W. 2d 27; Arkansas State Highway Com’n. v. Parks, 240 Ark. 719, 401 S.W. 2d 732, 26 ALR 3d 775. We have no trouble in stating with complete assurance that the order of November 1 was not prejudicial to the rights of the appellant.

Even if the trial court was in error in entering the order in the manner in which it did, this court will not reverse a judgment for an error which is unaccompanied by prejudice, commonly referred to as “harmless error.” Ark. Stat. Ann. § 27-1160 (Supp. 1977); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409; Household Goods Carriers v. Arkansas Transportation Com’n., 262 Ark. 797, 562 S.W. 2d 42; Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405. We find that any possible prejudice suffered by the appellant due to the November 1 order was cured by the modifying order providing notice and an opportunity to be heard. Because the lack of prejudice suffered by appellant is manifest, especially in light of the fact that the final order entered on December 27, 1978, had the same effect as the temporary order the appellant now complains of, any error committed was harmless, and therefore does not require a reversal.

The judgment is affirmed.

Hickman, J., concurs.


source: Caselaw Access Project

author: Conley Byrd, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Hazel Farmer GRAY v. The Urban Renewal Agency of the City of North Little Rock, Arkansas
    78-341
    585 S.W. 2d 31
    Opinion delivered July 9, 1979
    (In Banc)
    [Rehearing denied September 17, 1979.]

      Howell, Pnce & Howell, P.A., for appellant.

      Wallace, Hilbum, Clayton, May <3? Calhoon, Ltd., for appellee.
   Conley Byrd, Justice.

This litigation started out as an eminent domain action on November 12,1975. By agreement of the parties the matter was transferred to chancery because of appellant Hazel Farmer Gray’s contention that the acquisition of her house is not for a public use since the proposed plan of the Urban Renewal Agency is to demolish the house and to resell the property to a private developer for construction of a ten story high-rise building. Appellant also contends that no public purpose is served by the acquisition of the house because the house is not a slum nor a blight nor dangerous in any way to the health, safety and morals of the community.

The proof on the part of the Urban Renewal Agency showed that by resolution of the Urban Renewal Commission and the City of North Little Rock the area surrounding appellant’s property, including appellant’s property was placed in the area in a 100 to 102 acre tract known as the Westgate Urban Renewal Project. This project was approved in 1968 by the Department of Housing and Urban Development. Donald Manes testified that he made a survey of the area at the time and that the area had 50% or more dilapidated structures not capable of being repaired plus at least two environmental problems such as poor streets, poor drainage and incompatibility of land use between commercial and residential. Based upon a penalty point system with reference to the North Little Rock Housing Code it was the opinion of his firm that appellant’s property had more than 50% of its value gone. Those determinations were made on the structural condition of the house.

During the trial the parties stipulated that the expert witnesses for both parties would testify that the value of the property would be $31,500.

Wilson Stiles testified that on January 4, 1978 the subject property was placed on the National Register of Historic Places. He also stated the opinion that there had been no substantial deterioration in the property and that it is structurally sound. On cross-examination Stiles admitted that he had not viewed the foundation of the house and that he had not done a structural survey of the existing walls.

In making her contention that the trial court erred in holding that the appellee had the right to acquire appellant’s property, appellant relies upon City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486 (1967). We fail to see the analogy. In the Raines case, supra, the City of Little Rock sought to takes Raines’ farm so that the City could hold it for sale for industrial purposes. Here however, the Urban Renewal Agency’s purpose in taking the property is directed toward clearance, reconstruction and rehabilitation of a blighted area. In Rowe v. Housing Authority of The City of Little Rock, 220 Ark. 698, 249 S.W. 2d 551 (1952), we held that this was a permissible use of the right of eminent domain. Consequently, we find appellant’s first contention to be without merit. Neither can appellant complain that her property will be sold by appellee for the construction of a high-rise building. See Rowe v. Housing Authority of the City of Little Rock, supra.

Neither do we find any merit in appellant’s contention that the National Historic Preservation Act, and the Environmental Policy Act, Executive Order 11593, constitute a defense to this eminent domain action, U.S. Ex Rel T.V.A. v. Three Tracts of Land, 415 F. Supp. 586 (D.C.E.D. Tenn. 1976). Furthermore, the Federal authorities hold that such acts and orders will not be given retroactive effect, San Francisco Tomorrow v. Romney, 472 F. 2d 1021 (9th Cir. 1973).

Since we agree with appellee that it was not obligated to take administrative action prior to the hearing in this eminent domain action merely because the property was placed upon the national Register of Historic Places after the eminent domain action had been instituted, it follows that appellant’s contention that the Federal Courts have exclusive jurisdiction of the subject matter is also without merit.

Affirmed.

George Rose Smith, J., not participating.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because I do not believe that the appellee made a case that it is necessary to destroy this old house, as required when the power of eminent domain is exercised.

No doubt, Urban Renewal as an idea, and in many cases its execution, is for the good of the public. However, this is not one of those cases. This is simply a case where somebody’s property is being taken so that another building can be built. The sad fact is there is absolutely nothing the matter with the house. It was built at a time when good craftsmanship in buildings was more often the case than not. I dare say this house, if it were permitted to remain, would be in existence for over a hundred years — without undue maintenance. The building proposed will no doubt be torn down as obsolete during that period of time — probably in 25 years. The senselessness of the matter is enough to reverse the judgment of the chancellor but, more importantly, we have taken for granted the power of eminent domain and simply rubber stamped the exercise of the power of eminent domain by government agencies.

The area is not a slum. The evidence, in my judgment, indicated that the house was not dilapidated and the right to exercise the power of eminent domain in this case should have been routinely denied.

I am authorized to state that Purtle, J., joins in this dissent.


author: Conley Byrd, Justice.

text:
    Meredith Alvin WIMAN v. STATE of Arkansas
    CR 78-187
    583 S.W. 2d 67
    Opinion delivered July 9, 1979

      James K. Young, by: Luther B. Hardin, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenslein, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Donna Mingie, age 14 was found on the railroad tracks at 11:00 p.m. June 23, 1977, by a Missouri Pacific train crew. At the time she was nude except for a T-shirt. Blood was oozing from her vagina and her right arm had been severed by the freight train when it ran over her. Deputy Sheriff Carl Stobaugh stated that based upon his experience as a law enforcement officer, it was his opinion the young girl had been raped. Upon observing that Donna was still breathing, Deputy Stobaugh stayed with the girl until the ambulance arrived.

After the investigation was concluded, appellant Meredith Alvin Wiman, a neighbor of Donna Mingie and her sister’s boyfriend, was charged with rape and attempted murder. The jury found appellant guilty as charged and his punishment was fixed at life on the rape and 20 years on the attempted murder — said sentences to run consecutively. For reversal appellant makes the following contentions:

I. The trial court erred in ruling the confessions to be voluntarily given and admissible.
II. The court erred in allowing the articles of clothing to be introduced on the basis that proper consent was obtained.
III. The trial court erred in allowing photographs of the victim to be introduced into evidence.
IV. The jury finding of guilty on the issue of sanity was against the preponderance of the evidence.
V. The court erred in not directing a verdict in favor of the defendant on the charge of rape on the basis that the state failed to prove the elements of offense.

POINT I. On the motions to suppress the confessions the record contains the testimony of Finis Duvall, a criminal investigator with the Arkansas State Police; Carl Stobaugh, a Deputy Sheriff of Conway County; Ray Coffman, a Deputy Sheriff of Conway County, and appellant. This proof shows that appellant was picked up by Deputy Sheriffs Coffman and Epperson at his place of employment with Ward Body Works in Conway, Arkansas between 8:30 and 9:00 a.m. on the morning of June 24, 1977 and was transported to the sheriff’s office in Morrilton after a stop at the home of Donna Mingie in Plummerville. Appellant arrived at the sheriff’s office at 10:30 where he was given the Miranda warnings. When we view the totality of the circumstances, we cannot say that the trial court erred in ruling that the confessions were voluntary.

POINT II. On the motion to suppress appellant’s clothing obtained from the home of his parents, the record contains the testimony of Deputy Sheriff Ray Coffman, former Deputy Sheriff Bobby Epperson and Art Wiman, appellant’s father. The testimony of the officers is to the effect that they knocked on the door of the Wiman home to find out if appellant was home. Upon being informed that appellant was at work, they asked if the parents knew what type of clothes appellant had worn the night before. The officers stated that they were invited in to look for the clothes. The officers examined the clothes that were shown to them and made inquiry about appellant’s underwear but were unable to find them. On direct examination Art Wiman stated that the officers just came in looking for evidence. This evidence was toned down on cross-examination. Mr. Wiman admitted that Mrs. Wiman came to the head of the stairs with appellant’s shirt and that when he later found appellant’s underwear had stopped up the commode, he removed the commode to obtain the underwear and called the officers to come and get them. Conspicuously absent is the testimony of Mrs. Wiman.

Based upon the evidence in the record, we cannot say that the trial court erred in finding that appellant’s parents consented to the search.

Appellant does not demonstrate how he was prejudiced by the failure of the officers to make a list of the items seized in accordance with Rule 11.4 of the Rules of Criminal Procedure and in the absence of prejudice, such failure can amount to nothing more than harmless error. The record shows that appellant took the witness stand in his own defense but there is no denial of the identity of the clothes.

POINT III. Appellant, while conceding that the trial court has discretion in admitting photographs of the victim, contends that the photographs introduced fail to show any choke marks and were being introduced to influence the passions of the jury. Our observation of the photographs shown at page 629 of the record refutes appellant’s contention that the photographs do not show any choke marks. Consequently, this contention is without merit.

POINT IV. On the issue of insanity, appellant presented the testimony of Douglas Stephens, a clinical psychologist and Dr. Wendell Hall a practicing psychiatrist. The State presented the testimony of Albert Rosendale the chief of the Forensic Psychiatry Unit at the State Hospital. In addition the jury had the benefit of appellant’s testimony as to his conduct in washing and cleaning up immediately after the occurrence and before entering his home. It follows that there is substantial evidence in the record to support the jury’s finding of guilty notwithstanding appellant’s plea of not guilty by reason of insanity.

POINT V. In his confession, appellant admitted that he attempted to have sexual intercourse with Donna Mingie after he had rendered her unconscious and when he failed because he could not get an erection, he inserted his fingers in her vagina. In addition to the testimony of Carl Stobaugh as to the appearance of her body when she was found on the railroad track, the State presented Dr. David Dawson Irby who examined Donna at the Med Center. He found a five centimeter laceration of the posterior portion of the vagina, the borders of which were ragged as if torn. He stated that there was a penetration probably by a foreign object like a baseball bat.

Based upon the testimony in the record, we cannot say that there is no substantial evidence to support the jury’s finding that the penetration was for sexual gratification. Consequently, there is no merit to appellant’s contention that he was entitled to a directed verdict on the rape charge.

We have reviewed the record pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977), and have found no errors prejudicial to appellant.

Affirmed.


author: Frank Holt, Justice.

text:
    Charles M. TAYLOR v. CITY OF LITTLE ROCK, ET AL
    78-158
    583 S.W. 2d 72
    Opinion delivered July 9, 1979
    (Division I)

      Spitzberg, Mitchell <3f Hays, by: John P. Gill and Kent Foster, for appellant.

      Henry & Duckett, by: David P. Henry and James M. Duckett and Kaplan, Brewer, Bilheimer & Marks, by: Phillip E. Kaplan, for appellees.
   Frank Holt, Justice.

Appellant’s 68 acres of land in western Little Rock were annexed at appellant’s request by the appellee city on September 16, 1975. The following day, appellant filed a petition with the city seeking rezoning of his property from single family, to which it was automatically zoned upon being annexed, to higher uses; i.e., one third multi-family, one-third quiet business (offices and similar uses), and one-third commercial, leaving 3.6 acres of woods as a buffer zone between the Pleasant Valley Addition and the proposed development. The petition was denied by the City Board of Directors. Thereupon, appellant brought this suit against the city alleging that the action of the board was an unreasonable, arbitrary and capricious denial of appellant’s constitutional right to.the highest and best use of his property and seeking to enjoin the city from denying the uses sought in his petition. The Pleasant Valley Property Owners Association and two adjoining property owners intervened as defendants. We first consider appellant’s contention that the preponderance of the evidence reflects that the city’s zoning ordinance is void. Appellant attacks the validity of the zoning ordinance for failing to comply with statutory requirements.

Appellant cites Ark. Stat. Ann. § 19-2829 b (Repl. 1968) which provides:

Following adoption and filing of the land use plan, the planning commission may prepare for submission to the legislative body of a recommended zoning ordinance for the entire area of the municipality.
The zoning ordinance shall consist of both a map and a text.

Appellant argues that the city has failed to adopt a “land use plan.” On December 21, 1971, the City Board of Directors “accepted” the 1990 Comprehensive Development Plan for Pulaski-Saline Metropolitan Area, as prepared by the Metropolitan Area Planning Commission. The plan was accepted as “only a guide” to be, “in no wise binding in any particular with which said plan deals.” Appellant argues that, because this plan is not binding on the city, the city has no land use plan and, therefore, is not in compliance with § 19-2829 b. Appellees respond that this position is “sheer nonsense,” pointing out that the plan was accepted by the city as a “land use” guide and that the plan includes a “land use plan” which includes policy statements, general design considerations, proposed land uses and projections as to future land use needs. It is clear that the city has accepted the Comprehensive Plan prepared by Metroplan for use as a guide for establishing criteria in changing zoning classifications. We think this suffices for compliance with the statute. A land use plan is meant to be just that - a plan. It is not to be legally binding on the city. Even Mr. Castin, a witness for appellant, views the purpose of a development plan as being one for serving as a guideline and not to be binding. 82 Am. Jur. 2d, Zoning and Planning, § 69 states that a comprehensive plan “is a policy statement to be implemented by zoning regulations, and it is the latter that has the force of law .... Furthermore, a comprehensive plan, when it has been prepared by the planning board or agency, is generally deemed to be advisory, rather than controlling, and it may be changed at any time.” Appellant also stresses that the plan fails to state that the city “adopts” the plan. We do not think that the insertion of the word “adopt” into the resolution accepting the plan as a land use guide is a necessary prerequisite for compliance with our statute. Certainly, use of the word “accepts” falls within the spirit of the law. The city defends its compliance with the statute on other grounds. However, suffice it to say that the zoning ordinance in effect on April 6, 1976, when the city acted on appellant’s petition for annexation, was not null and void for failure to comply with § 19-2829 b.

Appellant also argues that the city’s failure to follow any of its known and admitted planning criteria in denying the application was arbitrary and capricious. Appellant asserts that two criteria ignored were the City Planning Commission’s and its staff which recommended approval of the application. However, the planning staff’s report noted that there could be potentially “enormous implications on the surrounding area” and pointed out several problem areas that would have to be dealt with should the development proceed; i.e., impact on traffic and adjacent property owners, ade-quacies of existing street systems, the precedent for continued lineal development along Highway 10 upon which appellant’s property abuts, the availability of sufficient sewer capacities, and the creation of potential drainage problems. Further, the city adduced evidence from its expert witnesses who verified these views. Appellant says another criterion not followed was Metroplan’s 1990 Comprehensive Development Plan which recommended a commercial development at the intersection of Highway 10 and 1-430 at the southeast corner of this intersection. However, appellant’s property is located at the southwest corner of the intersection. Appellant says that the Metroplan Pulaski Area Transportation Study of 1974 Annual Report recommended a commercial development at the southwest corner of appellant’s property. However, the city notes that this plan has not been adopted by it. It is also insisted that the city did not follow the criteria as to the master street plan and the statutory requirement, previously discussed, of a land use plan.

Appellant seems to argue that, because the board chose not to follow the recommendations of the various reports and groups, its action is arbitrary and capricious. However, the board is not bound by these recommendations. They are only factors to be considered by the Board of Directors in arriving at its ultimate decision as a legislative body. The chancellor does not try a city zoning decision de novo but, instead, determines whether the city’s action was arbitrary, and this court, on appeal, only determines whether the chancellor’s finding was contrary to the preponderance of the evidence. City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976); and Fields v. City of Little Rock, 251 Ark. 811, 475 S.W. 2d 809 (1972). Here we cannot say that the city arbitrarily and capriciously failed to consider its own criteria.

Appellant also contends that a preponderance of the evidence reflects that the city acted arbitrarily and capriciously in refusing to rezone his property from single family use to commercial and multi-family use. The chancellor found otherwise and we agree. As previously indicated, we do not reverse the chancellor’s finding as to the propriety of the city’s action in a zoning decision unless it is clearly against the preponderance of the evidence. Fields v. City of Little Rock, supra. Further, there is a presumption that the City Board of Directors, a legislative body, acted in a reasonable manner when they refused to rezone the property. Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974). Here, appellant’s 68 acres of land are located in western Little Rock at the southwest corner of 1-430 and Highway 10. The property is joined on the east by this interstate, on the north by Highway 10, on the west by Rodney Parham Road and on the south by the Little Rock Water Works Treatment Plant and Pleasant Valley addition. The acreage is vacant except for appellant’s residence and is practically in the midst of a high density residential area. Appellant produced four professional experts who testified that appellant’s application for rezoning was justified. Appellees responded with experts who contradicted their testimony and were of the view that the city’s action was reasonable and appropriate. The areas of disagreement among these witnesses included: the most appropriate and best use of the land, traffic conditions (an estimated increase of 24,500 cars per day), fire safety, the city’s financial ability to provide necessary improvements, and whether the “scale” of the proposed rezoning would result in an acceptable size commercial area in a high density residential area. It appears the proposed development does not adjoin any commercial activity. Two adjoining property owners and representatives of the Pleasant Valley Property Owners Association, appellees, testified in opposition to the proposed rezoning. According to them, it would have an adverse impact upon their property. No landowners appeared in behalf of the proposed rezoning. After hearing these various witnesses, the chancellor succinctly found:

. . . Plaintiff produced the testimony of several notable expert witnesses the effect of which was a conclusion, with supportive reasons that the proposed zoning was in all things proper; that the planned development would put Plaintiff’s property to its highest and best use.
On the other hand the City and Intervenors in opposition to Plaintiff produced the testimony of several notable expert witnesses the effect of which was a conclusion, with supportive reasons . . . that the proposed development was improper city planning and should be denied.
Obviously from the alignment of the eminent expert witnesses in their opposite views, we are dealing in an area in which honest, dedicated and sincere people differ. The Court does not conclude that either side of this argument can be said to reach their respective conclusions arbitrarily, capriciously or unreasonably, and in such position, and this Court being limited to a determination of this narrow issue, the Court concludes that the Complaint of the Plaintiff must be dismissed without relief.

We certainly cannot say that the chancellor’s findings are against the preponderance of the evidence.

Even so, as a subordinate argument, appellant contends that the city was arbitrary in maintaining a single family residential zoning on appellant’s property. We find this contention without merit. Under § 43-28 of the City Code of Ordinances, lands, when annexed as here, are automatically and simultaneously treated as “having that use classification of the most restrictive district consistent and compatible with the use to which each such separate parcel is then devoted until a zoning plan of the annexed area is prepared and adopted.” Appellant’s property was appropriately treated as A-l single family residential. Here appellant filed his own request for rezoning the day following annexation. Appellees have not contended that appellant’s property, when finally zoned by the city, should be restricted to totally single family zoning. However, until such time as a zoning plan is adopted, and since we hold that the chancellor found that the city did not act arbitrarily in denying appellant’s petition for rezoning, appellant is, under § 43-28 of the City Code of Ordinances, limited to single family residential zoning.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Hickman, JJ.

Byrd, J., dissents.


text:
    CITY OF PARAGOULD v. Boyd LEATH et ux
    79-15
    583 S.W. 2d 76
    Opinion delivered July 9, 1979
    (In Banc)

      Branch & Thompson, by: Robert F. Thompson, for appellant.

      Cathey, Goodwin & Hamilton, for appellees.
   Frank Holt, Justice.

Appellant filed this petition in chancery court to collaterally attack, by an injunction, an order of its Board of Zoning Adjustment which permitted a yard variance to appellees.

On May 25, 1978, appellees were issued a building permit by appellant’s building inspector to erect a 4-unit apartment on their single family residential property. Construction was commenced. Appellees were later notified by appellant that the zoning laws would not permit the desired construction. On June 6, 1978, appellant’s building inspector served appellees with a “Notification of Revocation of Building Permit.” Appellees appealed the revocation of the permit to appellant’s Board of Zoning Adjustment. The Board heard the appeal, cancelled the revocation and reinstated the permit. There was no appeal by appellant from the Board’s action. Instead, appellant filed this direct action in chancery court seeking a permanent injunction against further construction and also the removal by appellees of the structure already in place. Appellees filed a demurrer and an alternative motion to dismiss alleging, inter alia, that equity had no jurisdiction, since appellant had not appealed from the order of the Board of Zoning Adjustment to the circuit court as provided by Ark. Stat. Ann. § 19-2830.1 (Repl. 1968) and also the complaint failed to assert a cause of action. Appellant responded asserting that § 19-2829 h specifically empowers it to bring an action to enjoin zoning violations. The chancellor held that appellant could not maintain as an original action in equity this injunctive proceeding as a substitute for an appeal from the decision of the Board of Zoning Adjustment to the circuit court and dismissed the action.

For reversal appellant first contends that the court erred in holding that the appellant could not file this original action in chancery court under Ark. Stat. Ann. § 19-2829 h (Repl. 1968). The existence of a Board of Adjustment is mandated by § 19-2829 b. It provides in pertinent part:

b . . . .
The zoning ordinance shall provide for a board of zoning adjustment, which may either be composed of at least three (3) members or the planning commission as a whole may sit as the board of zoning adjustment. The board of zoning adjustment shall have the following functions:
(1) Hear appeals from the decision of the administrative officers in respect to the enforcement and application of said ordinance: and may affirm or reverse, in whole or part, said decision of the administrative officer.
(2) Hear requests for variances for the literal provisions of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the zoning ordinance. The board of zoning adjustment shall not permit, as a variance, any use in a zone that is not permitted under the ordinance. The board of zoning adjustment may impose conditions in the granting of a variance to insure compliance and to protect adjacent property.
Decisions of the board of zoning adjustment in respect to the above shall be subject to appeal only to a court of record having jurisdiction. (Italics supplied.) . . .
h. . . .
The legislative body may enjoin any individual or property owner who is in violation of a planning ordinance to prevent or correct such violation. Any individual aggrieved by a violation of a planning ordinance may request an injunction against any individual or property owner in violation of a planning ordinance, or may mandamus any official to enforce the provisions of a planning ordinance.

In our view the narrow issue presented is whether the appellant can test the validity of a building permit issued by its own agency by collaterally attacking its correctness in an oridinal injunctive proceeding in chancery court or is limited to testing it by appeal. No citation of authority is provided to us nor do we find a case where appellant can, as here, so collaterally attack the action. We hold that the trial court was correct in dismissing appellant’s action since appellant cannot bypass the provision of the statute which provides that the remedy is by appeal. See Davis, Administrative Law Treatise, § 18.10. In spite of the language of Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971); and City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976), the act here which provides for appeals from the Board of Adjustment is not subject to those constitutional limitations applicable to City Council actions in zoning because the Board of Adjustment acts administratively, not legislatively. Appeals to the circuit court from the Board of Adjustment are permitted. See Quapaw Quarter Assn. v. Bd. of Zoning Adj., 261 Ark. 74, 546 S.W. 2d 427 (1977); and Arkansas Power & Light v. City of L.R., 243 Ark. 290, 420 S.W. 2d 85 (1967).

Neither can we agree that the appellant had no standing to appeal from the order of its Board of Zoning Adjustment. The statute, as indicated, provides that “[djecisions of the board of zoning adjustment .... shall be subject to appeal only to a court of record having jurisdiction.” It provides no limitations as to persons or entities which may bring such an appeal. Here the appellant, through its building inspector, who had issued and then revoked appellees’ permit, and its mayor presented testimony at the Board’s hearing in opposition to a reinstatement of the permit. They were well aware of the Board’s action and decision to reinstate the permit from which they could have appealed.

After careful review, we find no merit in any of appellant’s arguments.

Affirmed.


text:
    Captain R. E. BRILEY v. LITTLE ROCK CIVIL SERVICE COMMISSION
    79-49
    583 S.W. 2d 78
    Opinion delivered July 9, 1979
    (In Banc)

      Kaplan, Brewer, Bilheimer & Marks, by: Patti Hudson Marks, for appellant.

      R. Jack Magruder, III and Sherry S. Means, for appellee.
   Frank Holt, Justice.

Appellant was notified by letter dated December 27, 1977, that his services with the City of Little Rock’s Fire Department were terminated because of his unauthorized removal of personal property from a privately owned automobile. In the same letter, he was informed of his right to appeal and was referred to § 55, Article 15 of the Rules and Regulations of the Department: “Conduct prejudicial to the public service.” Pursuant to Ark. Stat. Ann. § 19-1605.1 (Repl. 1968), an evidentiary hearing was held before the Little Rock Civil Service Commission on March 30, 1978, with three of the five members present. After a 4 and Vi hour hearing, the commission members present upheld the termination. Appellant appealed to the circuit court where the appellant and counsel appeared in person and the matter was submitted, without additional evidence, upon the transcript and record of the commission proceeding. The trial court also heard arguments by counsel. The circuit court affirmed. Thereupon present counsel was employed to perfect this appeal.

Appellant asserts that the court erred in upholding the order of the commission, which was not supported by substantial evidence; it was prejudicial error for the court to affirm a ruling based on a hearing which lacked due process; and it was prejudicial error for the court not to reverse the commission’s ruling because the commission failed to follow its own rules. Appellant’s second and third contentions and subordinate arguments were not raised before the commission or the trial court. This includes appellant’s subordinate argument that the commission failed to make findings of fact and conclusions of law and, further, the commission considered or heard testimony on other incidents without notice that such incidents would be an issue. We do not consider arguments raised for the first time on appeal. Green v. Ferguson, 263 Ark. 602, 567 S.W. 2d 89 (1978). Further, we no longer review termination cases de novo, and on appeal we determine only whether the commission’s finding is supported by substantia] evidence. Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W. 2d 935 (1965).

In determining the sufficiency of the evidence, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the factfinder. Further, upon appellate review, it must appear there is no reasonable probability that the incident occurred as found by the factfinder, and we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to the appellee. Thirfty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975).

On the night of December 4, 1977, appellant, on duty as captain, proceeded to the scene of an accident where an automobile had been driven off an overpass. The victim, Stanley James, was found in a state trooper’s car being administered first aid. He was dazed, intoxicated, and blinded in both eyes. After a short time, the trooper removed James to a nearby ambulance. Appellant removed a CB radio from the trunk of James’ car. After returning to the fire station, appellant locked the CB in the trunk of his car. The trooper, who had taken James to the ambulance, returned to the scene, saw that the CB was missing, and filed a complaint with the police. On December 9, 1977, Sergeant Troutman, with the Arkansas State Police, went to appellant’s fire station, located appellant and two other firemen, who had been on duty with the appellant the night of the accident, and indicated he wanted to talk to them about the incident. Appellant immediately said: “Oh, you’re here to see about the CB.” “We have it.” Within 10 or 15 minutes, appellant secured and returned the CB to the officer, making a note of the transaction in the station logbook. The district chief, upon learning there was no mention of the CB in the original log entry for the accident, contacted the chief about the irregularity. After appellant was notified of his suspension, he contacted James, who went with him to the personnel office and gave a statement indicating that he had authorized appellant to remove the CB from his car.

It is true that both appellant and James testified that, at the scene, James had made the statement, “Hoss, take care of my stuff.” Appellant also called the hospital several times and got a copy of the accident report in an effort to locate James. Appellant testified that he took the CB to protect it at James’ request. However, the trooper, who was first at the scene of the accident and who removed James from the scene to the ambulance, testified that he was near James at all times and did not hear him make such a statement. James was drunk, dazed, and incoherent at the time. Bandages had been applied for his eye injuries. He would have been unable to see to whom he was talking. Sergeant Troutman testified that James did not remember making the statement when he first spoke with him in the hospital, and James later told him that appellant had told him he would be fired if he did not say that he had authorized appellant to remove the CB.

Appellant testified that he had not been instructed concerning inventory forms, although he had read the rules and regulations of the department and signed a paper so stating. The chief testified that the correct procedure for securing private property at an accident was to give it to the owner, if available, or to the police. If neither action were possible, the fireman should notify his superior and note the property in the logbook. Order 62-11 had been issued in 1962 directing that any personal property removed from an accident scene be listed on a department inventory sheet. Grooms, another captain, testified that he had had the opportunity to read the inventory order on two or three occasions. Johnson, a driver, stated that the inventory of personal property after an accident is the responsibility of the person in charge. New, a firefighter, testified that his understanding of the procedure was that they were to notify their captain, who was to let the policemen secure the valuables.

It was for the commission, as the factfinder, to resolve issues of credibility and conflict in the evidence. When we view the evidence most favorable to the appellee, as we must do on appeal, we hold there is substantial evidence to support the commission’s finding.

Affirmed.


author:
Frank Holt, Justice. John A. Fogleman, Justice,
      Darrell Hickman, Justice,

text:
    Debra PAGE v. STATE of Arkansas
    CR 79-127
    583 S.W. 2d 70
    Opinion delivered July 9, 1979
    (In Banc)

      Warren H. Webster, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant, age 17, was found in contempt of court after her failure to appear in response to a subpoena as the victim-witness in a rape trial.

Several months previously, she had sworn out a warrant for the arrest of three youths on that charge. The case was set for trial on May 31, 1979, at 9:30 a.m. When court was convened on that date, the state and defense announced ready for trial. The jury and all witnesses were present except the appellant who did not respond when her name was called to be sworn as a witness. Court was recessed for about an hour. Attempts to reach her by phone proved futile. The jury was dismissed and charges against the defendants were also dismissed. A petition for a contempt proceeding was filed against appellant by the state. She was picked up by the sheriff’s office about 11:30 a.m. and a hearing was held on the contempt charge at 4 p.m. at which she was represented by court appointed counsel. She was found in contempt, fined $50, assessed court costs of $460, and sentenced to 10 days’ imprisonment. Application for relief was made to this court on June 8, 1979, by a petition for writ of certiorari. On that date was granted the writ and ordered appellant released from jail upon $50 bail. Appellant contends here that the contempt proceeding did not meet due process requirements, the proof was insufficient, and her sentence was excessive. Appellant argues that she was too young, age 17, in view of her difficult circumstances, to act as a mature adult and her actions amounted to immature judgment, carelessness and negligence.

We have the power to modify punishment imposed for contempt. Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W. 2d 393 (1971); and Garner & Rosen v. Amsler, Judge, 238 Ark. 34, 377 S.W. 2d 872 (1964). In Garner, we noted that the primary justification of punishment for contempt lies in the “need for upholding public confidence in the majesty of the law and in the integrity of the judicial system.” There we stated that it is our practice to modify a judgment for contempt when the ends of justice will be served despite a reduction or remission of the punishment. Here appellant has served 8 days of the 10 day jail sentence. Assuming, without deciding, that the requirements of the law were met, we think the “ends of justice” are fully met by a reduction in appellant’s jail sentence to that served and a remission of the $50 fine and $460 court costs.

Affirmed as modified.

Fogleman and Hickman, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur because appellant was clearly informed by the trial judge of the nature and purpose of the proceeding and the specific charge. Not only was she represented by competent counsel by appointment, but she expressed a clear understanding of the entire proceeding. Not a single question was raised about the charge, the process or the issuance of a subpoena. Consequently, I do not think that these matters can properly be raised on review by this court. It is not a question of subject matter jurisdiction.

I would add that I have not been able to find any authority for the costs of a criminal proceeding to be assessed against a witness who fails to appear in response to a subpoena.

Darrell Hickman, Justice,

concurring. I would reverse the judgment in this case, not only for the reasons stated by the majority with which I agree, but more importantly because the court did not have jurisdiction and, therefore, no authority to hold the appellant, Debra Page, in contempt of court.

This contempt was committed, if at all, outside the presence of the court. If a contempt is committed in the presence of the court, there is inherent authority in the court to hold summary contempt proceedings — that is, on the spot without delay. However, if the contempt is committed outside the presence of the court, then there must be an order by the court directing the person charged to appear before the court to answer for certain specified misconduct. In the case of Ex Parte Coulter, 160 Ark. 551, 255, S.W. 15 (1923), we stated:

Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. . . There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter of offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. . . .
There must first be an accusation in some form, made either by the judge himself or by someone in possession of the facts, sufficient to constitute a prima facie case, and, upon this accusation, the party charged is notified in order that he may have a reasonable time to make his defense.

We have to my knowledge followed the Coulter case without exception. There is no subpoena in the record or an order in this case by the court directing Debra Page to appear before it informing her of the reasons she was being brought before the court, nor was there any reasonable opportunity for her to make a defense.

Apparently the court appointed an attorney who was present that day in the court room to represent her. While the attorney may well have done his best under the circumstances, being totally unfamiliar with the case and the matter before the court, the record is void of any objection by the attorney to the proceedings and no argument was made by him on her behalf. In fact, after the court issued its rather harsh judgment, a bailiff, who was a bystander, asked the court if it would be all right if she paid out the fine imposed over a period of time. Therefore, I cannot see how her attorney under these circumstances would be held to have waived any notice of any kind.

While the majority and I would essentially reach the same result, there is a principle of law involved here which has been ignored by the majority. The time Debra Page has served in jail cannot be returned to her, but in no way should we condone the action of the court which was in excess of its jurisdiction and authority.


author: John I. Purtle, Justice.

text:
    In The Matter of The Adoption of Charles Rene PERRY, Renee June PERRY and Wayne PERRY v. Edward Leroy COX
    78-337
    585 S.W. 2d 33
    Opinion delivered July 9, 1979
    (In Banc)
    [Rehearing denied September 4, 1979.]

      John M. Belew, of Harkey, Walmsley & Bellew and A. F.

      “Tom” Thompson, of Thompson & Arnold, for appellants.

      No brief for appellee.
   John I. Purtle, Justice.

Appellant, Renee June Perry and appellee, Edward Leroy Cox, are the natural parents of Charles Rene Perry, who was 13 at the time of the hearing below. Appellant Renee Perry had been granted custody of Charles in a California divorce decree entered in 1968. Appellee was ordered to pay child support in 1970 and has been under court order to do so from that time. On February 2, 1978, appellants (as husband and wife) filed in the local probate court a petition for the adoption of Charles. Appellee responded by seeking a change of custody and, also filed a petition for a writ of habeas corpus. That petition was based upon an earlier California decree which had ordered that Charles be delivered to appellee within one week of the termination of the spring school semester of 1978. Appellants counterclaimed for alleged child support arrearages. After a combined hearing on the cases, the chancellor made an oral finding that the California decree, providing for delivery at the end of the school term, had been extorted and denied the writ of habeas corups; that appellee had justifiable cause for not supporting and sufficiently communicating with his son, Charles, from 1972 to 1978, denied appellants’ petition for adoption, refused to grant judgment for accrued support payments, ordered $1,100 allegedly saved by appellee as support money be placed into a trust bank account until Charles reaches the age of 18 or until further order of the court, and there would be no further obligation of support payments on appellee’s part. Appellants assert that the court’s finding that appellee had a justifiable reason for not supporting Charles from 1972 to 1978 is against the preponderance of the evidence; the court erred in refusing to award child support arrearages and requiring the $1,100 in the registery of the court be paid into a trust account for Charles’ benefit; and, further, the court erred in suspending all future child support.

We are unable to consider this appeal on its merits for the reason that Rule 9 (d) has not been sufficiently complied with. Ark. Stat. Ann. Vol. 3A, Supreme Court Rules (Supp. 1977). We have indicated numerous times that it is the duty of the appellant to furnish us with an abridgment of the record sufficient to enable us to understand the matters presented. Collins v. Duncan, 257 Ark. 722, 520 S.W. 2d 192 (1975); and Dyke Industries, Inc. v. Johnson Construction Co., 261 Ark. 790, 551 S.W. 2d 217 (1977). Here the various pleadings, the California decrees and orders, and the decree of the chancellor are not abstracted. Appellants have included only a statement of the case, the testimony of the witnesses, discussions of the court and argument in their abstract.

Affirmed.

George Rose Smith, J., concurs in result but finds no violation of Rule 9 (d).

Holt, J., concurs in result but would affirm if considered on merits.

Harris, C.J., dissents.


text:
    THE CITY OF CONWAY, ARKANSAS v. THE HOUSING AUTHORITY OF THE CITY OF CONWAY, ARKANSAS
    79-36
    584 S.W. 2d 10
    Opinion delivered July 9, 1979
    (In Banc)

      Jesse W. Thompson, for appellant.

      Henry & Graddy, by: Robert H. Henry, for appellee.
   John I. Purtle, Justice.

The Conway Housing Authority is the owner of a block of land in the city of Conway, which is classified as residential (R-3). It is bounded across the entire south, east and north sides by property classified as B-3, which is Highway Service District. It is bounded on the west by property zoned B-l, which is Central Business District. Therefore, this property, which formerly contained multifamily residential buildings, is an island within the business district. All of the houses have been razed and there are no structures whatsoever on the property. The appellee attempted to sell the property while still classified as residential but was unable to obtain any bids. The city of Conway did offer to take the property off its hands for the amount of indebtedness against it. The evidence indicates the city of Conway desired the property for use as a B-3 classification. Appellee’s application to rezone the property was denied by the planning committee and its action was affirmed by the city council. Appellee then filed complaint in the Faulkner Chancery Court and after a hearing the court rezoned the property as commercial (B-3). It is from this decree the appellant appeals.

The three points argued for reversal are as follows:

I.
THE COURT ERRED IN HOLDING FOR APPELLEE SINCE APPELLEE FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT THE CITY’S ACTION WAS ARBITRARY AND UNREASONABLE.
II.
THE COURT ERRED BY SUBSTITUTING ITS OPINION FOR THAT OF THE LEGISLATIVE ENTITY IN THIS ZONING DECISION ABSENT A CLEAR SHOWING OF ARBITRARINESS BY THE CITY.
III.
THE COURT ERRED IN REZONING THE PROPERTY DIRECTLY BY DECREE RATHER THAN BY ORDERING THE CITY TO REZONE BY ORDINANCE.

1924 Ark. Acts, No. 6, is the basic authority for zoning regulations by cities in Arkansas. This act is codified as Ark. Stat. Ann. §§ 19-2804 - 2807. 1924 Ark. Acts, No. 6, § 3, gives the right to adjacent property owners to appeal to the chancery court to protect their property from depreciation by reason of setting up exceptions to the zoning ordinances. The act is silent as to the procedure to be used when property owners are otherwise aggrieved by the act. However, we have traditionally reviewed such matters when they have been handled in chancery court. Since there is generally no procedure to appeal the decisions of the cities, it is logical that either the chancery or circuit court would have jurisdiction to hear complaints on this subject.

The zoning statute was first considered by this Court in the case of Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). The Herring case involved the application of a property owner to erect a filling station at the southwest corner of Wright Avenue and Wolfe Street in the city of Little Rock, Arkansas. The neighbors adjacent to this property protested the granting of the permit by the city by filing an action in the chancery court. This type action was specifically authorized by the General Assembly and appears as Ark. Stat. Ann. § 19-2806. There we held the statute and the ordinances were constitutional and, further, that the city had not abused its discretion in granting the permit. In Herring we stated:

As we have said, it is to be presumed that the council will exercise the power conferred on it in a fair, just and reasonable manner, and its action in the instant case indicates that the power to grant or to withhold permission to erect a forbidden structure in the restricted area was properly vested in the council. The ordinance is not prohibitory, but is regulatory. Conditions vary in different portions of an area as extensive as the restricted district established by the ordinance under review, and, if any discretion is to be exercised, that right must be vested in some one, and no more appropriate agency for that purpose could be constituted than the council of the city, where the duty and authority to pass upon the question was vested.

The matter was considered again in McKinney v. City of Little Rock, 201 Ark. 618, 146 S.W. 2d 167 (1941), wherein we held the supreme court should not substitute its judgment for that of the city council and the trial court holding that the classification of appellant’s property for zoning purposes was reasonable, unless we could say from the evidence that the findings of the city council and the decision of the trial court are unreasonable and arbitrary. A somewhat similar situation was considered in City of Fordyce v. Dunn, 215 Ark. 276, 220 S.W. 2d 430 (1949). The city council of Fordyce denied Dunn the right to operate a service station in a residential neighborhood. The chancery court reversed although it found that the city council acted honestly and in good faith but had exceeded its authority. The chancellor then enjoined the city from interfering with the right of the property owner to erect a service station in the residential area. There we reversed and stated:

So here, the question being one involving discretion, and the Council having acted on a record showing sharp differences of opinion, and the Chancellor having found that it acted in the utmost good faith and that the unanimous vote of all who participated was in response to the better judgment of each, the act must stand unless the Council, in changed circumstances, should again consider the matter.

In a case involving a factual situation very similar to the present case we held that the findings of the municipal authorities in reclassifying would not be overruled by the courts unless such action by the municipality was unreasonable and arbitrary. Evans v. City of Little Rock, 221 Ark. 252, 253 S.W. 2d 347 (1952). Again, we held that the zoning action of the city must not be arbitrary or capricious or wholly inequitable. City of West Helena v. Brockman, 221 Ark. 677, 256 S.W. 2d 40 (1953).

Residential property which is adjacent to business zoned property is not automatically entitled to rezoning as business property. This is so even though the highest and best use of the property might be other than residential. To allow such rule would be to violate the zoning act itself. If we were to allow any property abutting business property to be rezoned as business property, there would be no need of a zoning ordinance in the first place. We have stated too many times to mention that the court should sustain the city’s action in zoning matters unless it is found that the municipality was arbitrary in setting up the ordinance. Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W. 2d 912 (1975).

The General Assembly saw fit to give cities the right to exercise zoning authority when it enacted 1924 Ark. Acts, No. 6. This granted the cities the right to legislate upon zoning matters. This right, is, of course, not unlimited. Therefore, when a municipality, pursuant to authority granted by the General Assembly, takes action in zoning classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom in so doing. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904); Little Rock Railway & Electric Company v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). Neither do the courts have power to review such legislative action by the cities in a de novo manner. In fact, when the General Assembly attempted to grant the courts power to review such actions de novo, we held such action unconstitutional. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). Therefore, it follows that the power of the court to review the action of the municipalities is limited to determining whether or not such action was arbitrary, capricious, or wholly inequitable. The judiciary has no right or authority to substitute its judgment for that of the legislative branch of government. In zoning matters the General Assembly has delegated legislative power to the cities in matters relating to zoning property. The role of the courts is, therefore, simply to determine whether or not the action of the municipality is arbitrary. Arbitrary has been defined as “arising from unrestrained exercise of will, caprice, or personal preference; based on random or convenient choice, rather than on reason or nature.” Courts are not super zoning commissions and have no authority to classify property according to zones.

In the present case the chancellor heard the evidence and inspected the property. He determined that the action of the city in this case was arbitrary. We agree with the chancellor in so holding. It is obvious the city of Conway wants to obtain title to this particular property and thereafter reclassify it either as B-l or B-3. The property on all four sides is presently so rezoned. Although there is a possibility the use made of the property will create some additional traffic problem, such possibility does not outweigh the other factors which clearly demonstrate the action of the city in refusing to rezone the property as being arbitrary.

We agree with the learned chancellor that the city of Conway was arbitrary in refusing to rezone this property to classify it as B-3. Therefore, the case is remanded with directions to direct the city of Conway to rezone the property with all deliberate speed.

Affirmed as modified.


text:
    Tommy Lee PEALS v. STATE of Arkansas
    CR 79-57
    584 S.W. 2d 1
    Opinion delivered July 9, 1979
    (Division II)

      Thomas G. Montgomery, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

An information was filed in the Circuit Court of Crittenden County, Arkansas, on September 5, 1978, wherein the appellant was charged with the crime of murder in the first degree. It was alleged that appellant shot and killed William Murray with a pistol on August 3, 1978. Appellant was tried on the 25th and 26th days of September, 1978, and the jury found him guilty of murder in the second degree and assessed punishment at 15 years in the Arkansas Department of Correction. It is from this verdict and sentence the appellant appeals to this Court.

The episode involved herein commenced on August 3, 1978, when the appellant and several other persons were working on an automobile which had stalled in front of a store in close proximity to the home of William Murray, decedent-victim, and his sister, Susan Murray. The Murrays appeared and engaged appellant in an argument which resulted in Susan firing a gun at the appellant and William chasing him with a butcher knife. Shortly thereafter, appellant returned to the scene armed with a pistol and almost immediately the fracas was resumed. The testimony is greatly disputed as to whether Susan Murray opened fire the second time prior to the time appellant fired at her. Regardless of who started the firing, one of the shots from appellant’s pistol proved fatal to William Murray. During the latter part of the episode the Murrays were standing on the balcony or stairway at their place of residence and the appellant was on the ground in the vicinity of the street below, near the stalled vehicle.

Appellant raises 6 points for reversal and we will consider them in the order set out in appellant’s brief.

I.

THE TRIAL COURT ERRED IN UNREASONABLY RESTRICTING DEFENDANT’S IMPEACHMENT OF PROSECUTION WITNESS.

There seemed to be some confusion during the trial as to whether specific acts of conduct were admissible or whether the rule was limited to general character and reputation. This confusion apparently results from the application of Ark. Stat. Ann. § 28-1001, Rules 404 and 608 (Supp. 1977):

Rule 404. Character Evidence Not Admissible To Prove Conduct, Exceptions: Other Crimes.
(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
Rule 608. Evidence of Character and Conduct of Witness.
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

After the prosecuting witness had testified on cross-examination that the character of the victim was good, the appellant attempted to question her about specific incidents. The witness denied knowledge of the specific incidents requested and the court curtailed the questioning upon objection by the state. On other occasions the appellant attempted to question the witness about the victim’s general reputation and objections by the state were sustained.

It is apparent from the above-quoted rules that evidence of a person’s character or trait of his character may be offered by an accused in a homicide case for the purpose of rebutting evidence that the victim was not the aggressor. In this particular situation appellant asked about two specific violent incidents and the witness denied any knowledge of either. Although appellant may impeach his own witnesses, even character witnesses, he cannot make one his witness, after he has cross-examined him, and impeach the witness’s adverse testimony by asking about specific instances of conduct except he may inquire about the victim’s reputation or traits of character on matters relating solely to violence. Appellant could have presented these incidents by other witnesses.

II.

THE COURT ERRED IN UNREASONABLY RESTRICTING EXAMINATION OF WITNESS AS TO CHARACTER OF VICTIM.

As indicated under Point I, the appellant had the right to ask questions about specific incidents relating to violence. Again, we feel that some confusion existed between Rules 404 and 608. We consider the remarks under Point I to apply equally to this argument.

III.

THE TRIAL COURT’S UNJUSTIFIED COMMENTS AND ACTIONS THROUGHOUT THE COURSE OF THE TRIAL DENIED THE DEFENDANT’S RIGHT TO A FAIR AND IMPARTIAL TRIAL AND CONSTITUTED PREJUDICIAL ERROR.

The court did admonish the appellant’s counsel to speed up or shorten the voir dire examination of the jury and on other occasions made a rather curt ruling. Also, several objections by defense counsel were never ruled upon by the court. During this process, at one time, the court refused to allow the appellant to proffer evidence into the record but at a subsequent time stated that proffer could be made later. In any event, no proffer was ever made and it is not clear from the record whether it was understood by appellant’s counsel that he would be able to proffer into the record at a later time. We have held that the trial court making reference to counsel’s dilatory tactics amounted to prejudicial error. Chapman v. Slate, 257 Ark. 415, 516 S.W. 2d 598 (1974). We recognize that the presiding judge should manifest a very impartial and fair course of conduct in the case. This is so because he exercises great influence with the jury. He should refrain from impatient remarks or unnecessary comments which could lead to prejudice by the jury against the defendant. Western Coal & Mining Co. v. Krone, 193 Ark. 426, 100 S.W. 2d 676 (1937). It is the duty of this Court to consider the totality of the circumstances when such matters are presented. Although it may have been advisable for the court to have refrained from some statements made in this case, we cannot say from a totality of the circumstances that reversible error was committed. The court did not attempt to ridicule the appellant’s counsel nor did he attempt to degrade him in the eyes of the jury. Again, this matter is not apt to arise on retrial.

IV.

THE TRIAL COURT ERRED IN REFUSING DEFENDANT’S REQUESTED INSTRUCTION CONCERNING BURDEN OF PROOF.

This point involves the instructions given by the court to the jury. There is no question raised as to the instruction given regarding murder in the first degree. The court clearly stated that the state must prove every element of the offense of murder in the first degree beyond a reasonable doubt. However, the instructions “beyond a reasonable doubt” relating to each element of murder in the second degree and manslaughter were not given. We have dealt with this question in the case of Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925 (1976). The same type of objection was raised in Dillard as is raised by appellant in this case and we quote from Dillard:

We find reversible error in the trial judge’s refusal to give appellant’s requested instructions Nos. 6, 7 and 8. Each of these instructions would have advised the jury of the elements of one of the three offenses with which appellant was charged and that it would have to find appellant guilty of each element of that offense, beyond a reasonable doubt, before it could find him guilty of that offense. Appellant objected to the court’s failure to give these instructions because the jury had not otherwise been instructed that each of the elements of the offense covered must be proved beyond a reasonable doubt before appellant could be found guilty of that offense.
The jury was only instructed that “(t)he defendant is presumed to be innocent until proven guilty, and if upon the whole case you have a reasonable doubt of the defendant’s guilt, you will acquit him” and “(t)he burden of proof, as you have been instructed, is on the State to make out or establish its case to your satisfaction, beyond a reasonable doubt. ” Those instructions are correct, as far as they go. Even though the court had defined the elements of each of the offenses, nothing in the instructions given could possibly be construed as requiring that each element of each such offense must be proven beyond a reasonable doubt. In this respect the proffered instructions were proper even though it is not necessary that the state prove each fact or circumstance beyond a reasonable doubt, but it is required that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A. 2d 792 (1967); Spear v. U.S., 143 CCA 67, 228 F. 485 (8 Cir. ED. Ark., 1915) cert. den. 246 U.S. 667, 38 S. Ct. 335, 62 L. Ed. 929; State v. Otlley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 143 CCA 85, 228 F. 503 (8 Cir. ED. Ark., 1915); Niaic v. Long, 30 Del. 397, 108 A. 36 (1919). Cf. Ferrell v. State, 165 Ark. 541, 265 S.W. 62. The failure to give instructions similar to those requested by appellant is reversible error unless the matter is hilly covered by other instructions. McAfee v. U.S., 105 F. 2d 21 (D.C. Cir. 1939). . . .

In this case the appellant had requested the following instruction:

No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

This was a proper instruction and should have been given. The model criminal instructions have now been published and should greatly assist in clarifying the confusion which has existed in the past concerning this type of instruction. We do not agree with the state that by giving all the required instructions on first degree murder it would cause the jury to automatically consider the same instruction as applied to each of the lesser included offenses. Therefore, we hold the failure to give an instruction stating the duty is upon the state to prove each element of the offense beyond a reasonable doubt was prejudicial and the case must be reversed.

V.

THE TRIAL COURT ERRED IN REJECTING DEFENDANT’S OFFERED INSTRUCTION AS TO JUSTIFICATION-CHOICE OF EVILS.

The appellant offered an instruction on justification-choice of evils. We think the matter of justification was treated as an affirmative defense at the trial. However, justification is not an affirmative defense. Ark. Stat. Ann. § 41-110 (Repl. 1977) sets out the burden of proof as it relates to defenses and affirmative defenses as well as presumption. Justification is not listed as an affirmative defense. It becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979). It appears that appellant would have been entitled to rely upon justification as defined in Ark. Stat. Ann. § 41-506 (Repl. 1977). However, justification as argued under Ark. Stat. Ann. § 41-504 (Repl. 1977), does not appear to be appropriate in a charge of homicide. We have found no case in any jurisdiction which holds that the “choice of evils” justification has been applied to a homicide case when self-defense is argued by the accused.

VI.

THE TRIAL COURT ERRED IN REJECTING THE ■DEFENDANT’S OFFERED INSTRUCTION CONCERNING AFFIRMATIVE DEFENSES- ■

This point is closely related to the preceding point. We do not view justification as an affirmative defense; Since the court treated justification as an affirmative defense, we believe this error will not occur on retrial. Justification not being an affirmative defense, the state had the burden of negating this defense once it was put in issue. If appellant created the situation necessitating his conduct then he is not entitled to rely upon the defense of justification. Unless appellant was justified in the action he took; which is a matter for the jury to decide, the issue is automatically overcome. The evidence in this case certainly was sufficient to justify the jury reaching the verdict rendered in this case. The instruction given by the court requiring the state to prove its case beyond a reasonable doubt was adequate to take care of the issue of justification. It is true that the appellant was not required to prove an affirmative defense beyond a reasonable doubt and that such defense is made by a preponderance of the evidence. Mere failure of the appellant to prove an affirmative defense does not relieve him of liability but may reduce the seriousness of the offense.

For the failure to give the instructions requiring the state to prove each element of each offense beyond a reasonable doubt, the case is reversed and remánded for a new trial. The other points argued have been discussed for the purpose of furnishing guidance at the new trial and are not likely to occur again.

Reversed and remanded.

We agree. Harris, C.J., Fogleman and Holt, JJ.

George Rose Smith and Byrd, JJ, concur in the result.