author: J. Fred JoNes, Justice. John A. Fogleman, Justice,

text:
    Hanford Produce Co. v. C. A. Clemmons, Lucille K. Howard and Bill Laney, Commissioner of Labor
    5-4016
    412 S. W. 2d 828
    Opinion delivered March 27, 1967

      Williams & Gardner,, for appellant.

      Luke Arnett, for appellee.
   J. Fred JoNes, Justice.

This is an appeal from a judgment of the Johnson County Circuit Court affirming an order of the Board of Review awarding unemployment compensation benefits to appellees.

The appellees, C. A. Clemmons and Lucille K. Howard, were employed by the appellant, Hanford Produce Company, at its, hatchery in Clarksville, Arkansas, and as such employees, their work was confined to the hatchery where baby chicks were hatched by artificial incubation. These employees lost their employment and filed claim for unemployment compensation benefits under the Arkansas Employment Security Act, Ark. Stat. Ann. § 81-1101 (Repl. 1960). The Administrative Commission allowed the claims, both the Board of Review and the Johnson County Circuit Court affirmed the findings and decision of the Commission, and the produce company has appealed, relying on two points for reversal:

“1. The agency and the lower court erred in holding that appellant is not exempt from Arkansas Employment Security Act under Section 81-1103 (i) (6), Ark. Stats. 1947 as. amended, exempting employment in connection with raising, feeding, or management of poultry.
“2. The agency and the lower court erred in holding that appellant is not exempt from the Arkansas Employment Security Act by Section 81-1103 (0), Ark. Stats. 1947 as amended, which provides for the exemption of all employment exempt under the Federal Unemployment Compensation Tax Laws.”

These two points are so closely related we consider them together.

This case and the case of Arkansas Valley Industries, Inc. v. Bill Laney, Commissioner of Labor et al, appear here at the same time, and both present the same question of law on different facts. The attorneys in both cases have favored us with excellent briefs, and have orally argued both cases together on appeal.

The appellant’s hatchery is located in the city of Clarksville, Arkansas, in a building which is used for no other purpose. The appellant owns no farms, nor does it lease any farms. As a part of appellant’s operation, it furnishes chickens and the feed to farmers under contract, and the farmer furnishes poultry housing, equipment, provides the care for the chickens., and delivers the hatching eggs to the hatchery. Neither of the appel-lees performed any services on the farm.

We are called on in this case to interpret for the first time, “exempted employment” under the Arkansas Employment Security Act as it relates to agriculture as defined in Ark. Stat. Ann. § 81-1103 (i) (6) (B) (Repl. 1960) and as affected by the same statute subsection (i) (6) (0).

Ark. Stat. Ann. § 81-1103 (5) (i) defines employment as. follows:

“ 'Employment’ means any services performed * * and § 81-1103 (i) (6) insofar as. it relates to the problem here, is as follows:
“(6) Exempted Employment. The term 'employment’ shall not include—
(A) Domestic service in a private home.
(B) Services, performed in the employ of an owner or tenant operating a farm, in connection with the cultivation of the soil, the harvesting of crops, or the raising, feeding, or management of livestock, bees or poultry, or in connection with the processing, packing or marketing of the produce of such farms as an incident to ordinary farming operations, and services, performed in the ginning of cotton. # * #
“(0) Service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals., no part of the net earnings of which inures to the benefit of any private shareholder or individual.
“Also any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under Federal law.”

Appellant argues that it comes within the exemption under (6) (B) supra, hut that if it is not exempt under the language of (6) (B), it is exempt under the “terms of Federal Unemployment Compensation Laws” (§ 26 U. S. C. A. 3306 (K) (1) ) as specifically provided by the state law in the second paragraph of Ark. Stat. Ann. § 81-1103 (6) (0) supra.

Section 26 U. S. C. A. 3306 (8) (C) defines employment as follows:

“For the purposes of this chapter, the term ‘employment’ means any services performed * * * except — (1) Agriculture labor (as defined in subsection (K).”

26 U. S. C. A. 3306 subsection (K) is as follows:

“ (K) Agricultural labor. — For purposes of this chapter, the term ‘agricultural labor’ includes all service performed—
(1) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife. ’ ’

In interpreting Ark. Stat. Ann. § 81-1103 (i) (6) (B) as related to the Federal Act, it is necessary to construe the legislative intent especially as it relates to subsection (0) of Ark. Stat. Ann. § 81-1103 (i) (6), and to do this we look to the language of the statute, tlie subject matter, the object to be accomplished, the purpose to be served, the remedy provided, contemporaneous legislative history or other appropriate matters that throw light on the matter. (Chaney, Commissioner v. Georgia-Pacific Paper Corp., 237 Ark. 161, 371 S. W. 2d 843).

The Federal unemployment tax Act was passed by Congress in 1935 and imposed an excise tax on every employer of eight or more persons, the amount of three per cent of wages paid annually. Certain services or employments were exempted from the definition of ‘ employment” within the meaning of the Act, and to encourage the various states to enact and administer their own employment security Acts, the Federal Act provided for a credit on the Federal tax of 90 per cent of any amount paid under the unemployment compensation law of a state, and provided for an annual certification by the Secretary of Labor in connection with changes permissible under the State law, to effectuate the purpose of the Federal Act.

The 1935 Federal Act provided as follows:

(( # # #
(c) The term ‘employment’ means any service, of whatever nature, performed within the United States, by an employee for his employer, except—
(1) Agricultural labor;
(2) Domestic service in a private home;
(3) Service performed as an officer or member of the crew of a vessel on the navigable waters of the United States; # sfc
(7) Service performed in the employ of a corporation, community chest, fund or foundation, organized and operated exclusively for religious, charitaable, scientific, literary, or educational purposes, or for tile prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual; (8) Service performed in the employ of an employer as defined in sections 351-367 of Title 45 and service performed as an employee representative as defined in said sections.”

Thus it is seen that under the Federal Act as originally enacted “agricultural labor” was exempted from the provision of the Act.

The original 1935 Federal Act did not attempt to define “agriculture labor,” but authorized the making of administrative regulations and “agricultural labor” was treated under Administrative Regulation 90 until the Federal Act was amended in 1939, 26 U. S. C. A. 3306 (Scofield, Collector of Internal Revenue v. Tinnin, 171 F. 2d 227).

There was nothing in the Federal Act that prevented a state from expanding the Social Security Program in the field of exemptions, and as a matter of fact most of the states did so.

Each of the states was anxious to obtain the full benefit of the Federal law and to keep as much of the tax money in the state as possible through the 90 per cent credit provision of the Federal Act. Consequently, many of the states enacted statutes with broader coverage and narrower exemptions than were provided in the Federal Act.

The Federal Act originally covered only employers of eight or more persons, and at the same time approximately one-half the states covered employers with fewer employees. Several' states covered laborers and domestic servants, both groups exempted under the Federal Act. (Standard Dredging Corp. v. Murphy, 319 U. S. 306 at 311).

Many of the states, including Arkansas, simply adopted most of the provisions of the Federal Act, with such minor changes as were necessary to fit the economic situation of the particular state and region.

Arkansas was one of the first states to enact employment security legislation, and did so by Act 155 of the Acts, of Arkansas for 1937, and in this Act, Arkansas simply followed the Federal Act and exempted “agriculture” from the provisions of the Act.

The 1937 Arkansas Act provided as follows:

í Í * * *
(6)The term ‘employment’ shall not include—
(1) Agricultural labor;
(2) Domestic service in a private home;
(3) Service performed as an officer or member of the crew of a vessel on the navigable waters of the United States; ^ ^
(7)Service performed in the employ of a corporation, community chest, fund or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual;
(8)Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an Act of Congress; Provided, that the Commissioner is hereby authorized and directed to enter into agreements with the proper agencies under such Act of Congress, which agreements shall become effective ten days after publication thereof in the manner provided in section 11 (b) of this Act for general rules, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this Act, acquired rights to unemployment compensation under such Act of Congress, or who have, after acquiring potential rights to unemployment compensation under such Act of Congress, acquired rights to benefits under the Act.”

The purpose of the enactment of employment security legislation, both Federal and State, and the economic conditions it was intended to relieve, are matters well known, but are set out in the original Arkansas Act 155 of 1937 as follows:

Declaration of State Public Policy
As a guide to the interpretation and application of this Act, the public policy of this State is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this general hazard of our economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.

The Arkansas Act, Ark. Stat. Ann. § 81-1102 (Repl. 1960) specifically provides:

“* * * legislature hereby declares its intention to provide for the carrying out of the pnrpos.es of this Act in cooperation with the appropriate agencies of other States and of the Federal Government, as part of a nationwide employment security program to secure for this State and the citizens, thereof the grants and privileges available thereunder.”

Most of the exemptions in the original Federal Act were because of the expense and difficulty that would be involved in the administration of the Act to the ex--empted employment. Latimer et al v. United States, 52 Fed. Supp. 228. So after considerable experience, Congress amended the Federal Act in 1989, and for the first time attempted to define agriculture as. exempt under the original Act, as including “all services performed on a farm, in the employ of any person, . . . .” (26 U. S. C. A. 3306 (K), supra).

Arkansas followed close on the' heels of Congress and by Act 391 of 1941 brought the State Act up to date, but this, time, the Arkansas Legislature did not follow the Federal amendment, but narrowed the agricultural exemptions from just “agriculture employment” to “services performed in the employ of an owner or tenant operating a farm.” (Ark. Stat. Ann. § 81-1103 (i) (6) (B), (supra). Whereas the Congress, by its amendment to the Federal Act, narrowed the Federal exemption to the same services performed “on a farm, in the employ of any person.” The Arkansas Legislature, by its amendment, narrowed the State exemption to the same services performed “in the employ of an owner or tenant operating a farm.”

We place no strained construction on the wording of the statute in holding that each activity set apart by commas in subsection (i) (6) (B) of § 81-1103 relates to services performed in the employ of an owner or tenant operating a farm.

The State .of Maine has had considerable experience with the problem we have here. The Supreme Court of that state had occasion to consider two cases with very similar fact situations as in the case at bar. One of the Maine cases, Maplewood Poultry Company v. Maine Employment Security Division, 121 A. 2d. 360, was decided under a statute similar to the present Federal statute, and the other case was, C. M. T. Company v. Maine Employment Security Commission, 163 A. 2d. 369, decided under the Maine statute after it had been changed by amendment similar to our own Ark. Stat. Ann. § 81-1103 (i) (6) (B).

In the Maplewood case, the Maplewood Poultry Company was engaged in the production of poultry and claimed exemption under the Maine Employment Security Act.

When this case was decided by the Maine Court, the State statute was an exact copy of the Federal Act as follows:

“I. ‘Agricultural labor’ includes all services performed :
“A. On a farm, m the employ of any person,, in connection with cultivating the soil, or in connection with raising or harvesting agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wild life.” (Emphasis supplied)

Although the Maine Court held this activity exempt under this, particular Maine Act, the Court said:

“[1, 2] Much is said in the respondent’s brief as to the interpretation of the statutes involved here. The rule to be followed by this, court has long since been established, and often reiterated, that, ‘If the meaning of the language is plain the Court will look no further; it is interpreted to mean exactly what it says.’ Sweeney v. Dahl, 1943, 140 Me. 133, 34 A. 2d 673, at page 676, 151 A. L. R. 356. The language of the statute is plain and there is no need or necessity for the court to look any further as it is to he interpreted to mean exactly what it says. There is nothing vague, ambiguous or uncertain about it.
“Again in the respondent’s brief the argument is advanced that the services ‘must be an integral part of farming operations performed for the farmer and not for a third person.’ California Employment Comm’n v. Butte County Rice Growers Ass’n, 1944, 25 Cal. 2d 624, 154 P. 2d 892, 898.
“Our law, which defines ‘agricultural labor,’ specifically includes services performed in the employ of any person. The court, in the California case supra, held that the service performed by employees of a warehouse were not ‘agricultural labor’ and one reason advanced was that the warehouse was a general one opened to the public.
“7/ the law provided that such employees must he in the employ of the owner, tenant or operator of the farm then the problem involved here would he easy of solution. On the contrary, such ‘agricultural labor’ may be performed by one ‘in the employ of cmy person.’ (Emphasis supplied)
“ [3] The services performed by the several crews whose duties are briefly described in this opinion, were necessary and essential for the ‘raising, * * * feeding, caring for * * * and management of * * * poultry. ’
‘ ‘ The facts that these services were provided by the petitioner does not change the picture in the least. It may he necessary that because of the tremendous growth of this industry i/n Maine, in a comparatively few years, cmd the necessary employment of possibly hundreds of persons,,' that the law should be changed to cover them. However, that is not for this court; that duty devolves on the Legislature to amend the law, if it sees fit, by what it may deem to be appropriate legislation.” (Emphasis supplied)

This case was decided by the Supreme Judicial Court of Maine in 1956, and Maine did change its statute by amendment in 1957 to read as follows:

“ ‘Agricultural labor’ includes all services performed on a farm in the employ of the operator of such farm, in connection with * * * the raising of * * * poultry * * * the term ‘farm’ shall include * * * poultry * * * farms * * (Emphasis supplied)

This amended statute was construed in the C. M. T. Company case, supra. In that case, the appellant, C. M. T. Company, Inc., was engaged in the business of producing broiler chickens from the egg to the processed bird ready for the market. The company leased a hen house in which it produced about ten per cent of the eggs required in the company’s operation and about 90 per cent of the hatching eggs were purchased from independent producers. The hatchery was located on a six acre tract and no other farming operations were carried on on the real property. The company owned several farms on which about ten per cent of the hatched chickens were raised to broiler size. About 90 per cent of the chicks were raised on the farms of other persons under contract with the company. There were a number of employees of appellant who operated the company’s hatchery and the isisue was whether or not their employment constituted “agricultural labor” exempt from the provisions of the Maine employment security law. The period covered was a part of 1958 and 1959, and in that case the Supreme Court of Maine said:

“Until an amendment was enacted in 1957, the term ‘agricultural labor’ was defined by the applicable portions of R. S. 1954, chapter 29, § 3, subsection (I) as including ‘all services performed: A. On a farm, in the employ of any person, in connection with * * * the raising * * * 0f * * * poultry. * * * C. In connection wiv. * * * the hatching of poul-•jj^y * * # > 9 9

Obviously, “hatchery” employees were not engaged in taxable employment under the express terms of this definition of “agricultural labor” which was made exempt by other provisions of the law. The 1957 amendment, however, provided a new definition of “agricultural labor, ’ ’ the pertinent provisions of which were:

“ ‘Agricultural labor’ includes all services performed on a farm in the employ of the operator of such farm, in- connection with * * * the raising of * * * poultry * * * the term ‘farm’ shall include * * * poultry * * * farms * * *.
# # *
“The legislature in 1957 could have had no other purpose than to restrict the scope of the agricultural exemption to rather narrow limits. The language employed closely limited exempt employment to services performed ‘on a farm in the employ of the operator of such farm, ’ and quite significantly eliminates the specific exemption previously given to services in connection with the ‘hatching of poultry’ wherever performed. In 1956 we held that the exemption afforded by the then existing law extended to service of employees of a concern like the appellant when rendered on the farms of the contract growers. Maplewood Poultry Company v. Maine ESC, 151 Maine 467, 121 A. 2d. 360. * * #
“Whatever the legislative motivation may have been, the language of the 1957 amendment was car-tainly calculated to remove many employees of the industry from the scope of the exemption. We are satisfied that until the exemption was again broadened in 1959, the legislature intended that the words ‘on a farm in the employ of the operator of such farm’ should he given the somewhat restricted meaning which we have attributed to them in this opinion.”

Ark. Stat. Ann. § 81-1103 (6) (B) provides that the term “employment” shall not include services performed in the employ of an owner or tenant operating a farm, and we are of the opinion that the term “employment” under the provisions of (i) (6) (B), supra, does include services performed “in the employ of any other person,” unless exempt under some other provision of the Act.

In Bland, Adm’r. v. Belle Point Lodge No. 20, 235 Ark. 331, 359 S. W. 2d 804, we said that the concluding sentence in subsection (i) (6) (0) refers to the exemption terms, of the Federal statute under which there are listed seventeen numbered paragraphs concerning exemptions. But we are of the opinion that the second paragraph of Ark. Stat. Ann. § 81-1103 (i) (6) (0), supra, does not nullify, broaden or change the definition of “exempted employment” under (i) (6) (B), supra.

The Arkansas Legislature had the newly amended Federal Act before it when it amended the Arkansas Act in 1941, and it designed the Arkansas Act to fit the situation in Arkansas.

The specific exemptions in the 1937 Arkansas Act were divided into separate categories numerically arranged and numbered one through eight. (Acts of Ark. 1937, Act 155).

When the Arkansas Legislature amended the Act in 1941, it divided the specific exemptions into categories alphabetically arranged from A through P, and carefully added seven categories H, I, J, K, L, M and N not designated and set apart in the original 1937 Act. (Acts of Ark. 1941, Act 391).

Paragraph 7 of the 1937 Act became paragraph 0 of the 1941 Act, and these two paragraphs remained the same in both ANs except an additional sentence was added to subparagraph (0) in the 1941 Act as follows:

“Also any service or employment now or hereafter exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under Federal law.”

The words “or hereafter” were deleted from this sentence by amendment in 1955. (Acts of Ark. 1955, Act 395).

Had the legislature intended that this sentence have the broad effect the appellant attributes to it, the 1941 Act could have been shortened considerably by simply exempting “any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under Federal law.”

Applying to the adverb “also” its usual and customary use and meaning, as it appears in the last sentence and paragraph of subsection (i) (6) (0), it is only logical to assume that it was intended to apply to the category of exemptions to which it is attached in § 81-1103 (i) (6) (0), and was intended to exempt services performed in connection with such present or future charitable or non-profit activity conducted in Arkansas, which the legislature may have overlooked in drafting the Act and failed to sp' úfically designate and set out under subsection (0), when the same activity is exempt under the Federal statute.

Eegardless of whether the second paragraph of Ark. Stat. Ann. § 81-1103 (i) (6) (0), supra, relates to similar services as those enumerated in subsection (0) or relates to any service, including those performed in the employ-of an owner or tenant operating a farm, or relates to any of the other designated exempt classifications under the Federal Act, we are of the opinion that it could only relate to such service or employment not specifically defined and specifically set out as exempt, or not exempt, in the Arkansas Act.

“Agricultural labor” as such, is no longer totally exempt under either the State or Federal law, and certainly it is our opinion that this last paragraph in subsection (0) was not intended to substitute the broad definition of agriculture labor contained in the Federal Act for the more restricted definition in the State Act. Certainly we cannot conceive of a legislative intent to very clearly limit and define by affirmative action, agricultural exemptions in subsection (i) (6) (B), supra, to services performed in the employ of an owner or tenant operating a farm, and then at the same time, and in the same Act, extend the exemption to' the same services performed on a farm in the employ of any person in adopting by reference, the broader definition in the Federal Act by an “also” paragraph in subsection (6) (0) having to do with ah exemption of services performed in the employ of a corporation, community chest, fund or foundation organized and operated for religious and other charitable purposes.

The judgment of the trial court is affirmed.

Affirmed.

FoglemaN and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I think that the majority has mis,-construed Ark. Stat. Ann. § 81-1103 (i) (6). In my opinion this section exempts these employees of appellant from the application of the Act in that their services were performed in connection with the raising, feeding or management of poultry. I submit that the section, in view of its punctuation, should not be read as the majority reads it. They construe this section as if there were no comma after the word “farm” and as if it read:

(6) Exempted employment. The term “employment” shall not include—
(A) Domestic service in a private home.
(Bl) Services performed in the employ of an owner or tenant operating a farm in connection with:
(1) the cultivation of the soil;
(2) the harvesting of crops; or
(3) the raising, feeding, or management of livestock, bees or poultry; or
(4) the processing, packing or marketing of the produce of such farm as an incident to ordinary farming operations ; and.
(B2) Services performed in the ginning of cotton.

I submit that if the comma after the word “farm” is considered as properly used, the section should be construed as if it* read:

(6) Exempted employment. The term “employment” shall not include—
(A) Domestic service in a private home.
(B) Services performed:
(1) In the employ of an owner or tenant operating a farm;
(2) In connection with the cultivation of the soil, the harvesting of crops, or the raising, feeding or management of livestock, bees, or poultry; or
(3) In connection with the processing, packing or marketing of the produce of such farm as an incident to ordinary farming operations; and
(4) In the ginning of cotton.

I believe this to be a sensible construction, clearly in keeping with the purpose of the amendatory act which provided the present section.

I cannot help but wonder if the majority really intends to remove pecan orchards from the exemption. Perhaps even apples and peaches from orchards cannot be classified as crops. What is the status of a dairy under their construction? Milking a cow is not harvesting a crop, nor would I call it management of livestock. It cannot successfully be urged that the majority’s com struction is needed to limit processing, packing and marketing so that all commercial operators in this field are not exempt, because that clause contans its own limitation to those acts which “are incident to ordinary farming operations.”

Their construction would also mean that occasional slack season use by a farmer of farm labor to cut timber or firewood for market, to clear land, to recover sand or gravel from his land, or to engage in other activities not unusual on a farm would make the employment subject to tax under the Employment Security Act because it was not connected with the cultivation of the soil, harvesting of crops, the raising, feeding or management of livestock, or the processing, packing or marketing of the produce of the farm as an incident to ordinary farming, operations. I. cannot believe that this was the intention of the General Assembly.

While this court is properly committed to the prin ciple that rules of punctuation will not be permitted to overturn the plain and obvious intent of the Legislature, as gathered from the language of the Act as a whole, there is no reason why punctuation should otherwise be disregarded. It has been said by this court that in cases of doubtful interpretation, the punctuation may be looked to as having some weight in determining the real meaning of the lawmakers. Starett v. McKim, 90 Ark. 520, 119 S. W. 824. While punctuation does not control construction, it is an aid thereto. Gray v. General Construction Co., 158 Ark. 641, 250 S.W. 342. An Act should be read as punctuated unless there is some reason to the contrary. Horack’s Sutherland, Statutory Construction (3rd Ed.) Vol. 2, § 4939. Punctuation should be given weight., unless from inspection of the whole statute it is apparent that the punctuation must be disregarded in order to arrive at the legislative intention. Crawford, Statutory Construction (1940). When there is no inconsistency, absurdity or ambiguity in a statute as officially printed and punctuated, the court will :not give it a different meaning by changing the punctuation. 50 Am. Jur. 250, Statutes, § 254. Punctuation will not be disregarded unless it is necessary to do so and a clear and grammatical statute will not be changed in meaning by repunctuation. 82 C. J. S. 685, Statutes, § 341.

The majority rely upon two Maine cases, the first of which held employment similar to that of appellees exempt under an earlier statute, and the latter held it non-exempt after the Act had been amended. I have no quarrel with the holdings in those cases. A reading of the two statutes shows a very different wording. It is interesting to note that the Maine Legislature amended the Act under which the hatchery was held not to be exempt and restored the earlier statute under which it was held exempt.

My construction of the statute is in keeping with the policy of this state to promote the poultry industry in Arkansas as evidenced by the Acts of the General Assembly in granting broad exemptions from the gross receipts tax on gross receipts derived from the sale of poultry and poultry products. Section 4, Act 386 of 1941. It was provided that this exemption did not apply to chicken hatcheries until the passage of Act 15 of 1949 when this proviso was eliminated and the sale of baby chickens was exempted. Still later the General Assembly, by Act 94 of 1955, exempted all feedstuff's used in growing or producing poultry from both the gross receipts tax and the compensating tax. It was also admitted in oral argument that the tax had never before been collected by the Employment Security Division in situations such as those presented here. Administrative construction of a statute is entitled to consideration and is highly persuasive. Brawley School Dist. No. 38 v. Kight, 206 Ark. 87, 173 S. W. 2d 125 ; Moses v. McLeod, 207 Ark. 252, 180 S. W. 2d 110. Official conduct long pursued will be given great weight. Adams v. Hale, 213 Ark. 589, 212 S. W. 2d 330.

I agree with the majority that no exemption can be based upon Ark. Stat. Ann. § 81-1103 (i) (6) (0), but for entirely different reasons which are stated in my dissenting opinion in Arkansas Valley Industries, Inc. v. Bill Laney, Commissioner of Labor, et al, 242 Ark. 261, 412 S. W. 2d 817, handed down on this date.

I would reverse the judgment of the circuit court, the Board of Review and the Appeals Referee.

I am authorized to state that Mr, Justice Byrd joins in this dissent.

       See, e.g., Koser v. Oliver, 186 Ark. 567, 54 S. W. 2d 411 ; Jones v State, 104 Ark. 261, 149 S. W. 56.


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A Fogleman, Justice,

license: Public Domain

text:
    Arkansas Valley Industries, Inc. v. Bill Laney, Commissioner of Labor; Lois L. Scott; and Raymond Standridge
    5-4147
    412 S. W. 2d 817
    Opinion delivered March. 27, 1967

      Rose, Meek„ House, Barron, Nash & Williamson, for appellant.

      Herrn Northcutt and Luke Arnett, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Arkansas Valley Industries, Inc. from a decision of the Pulaski County Circuit Court affirming a ruling of the Board of Review of the Arkansas Employment Security Division holding that appellees, Louis L. Scott and Raymond Standridge, former employees of Arkansas Valley Industries, Inc., are entitled to unemployment benefits under the Arkansas Employment Security Act, and that Arkansas Valley Industries, Inc. is liable for contributions under the Act on wages paid to the appellees.

This case and the case of Hanford Produce Co. v. C. A. Clemmons, Lucille K. Howard and Bill Laney, Commissioner of Labor, appear here at the same time. The appellant in the Hanford case claimed exemption under Ark. Stat. Ann. § 81-1103 subsection (i) (6) (B) (Repl. 1960), as well as § 81-1103 subsection (i) (6) (0), and the appellant in the case at bar claims exemption from coverage under § 81-1103 subsection (i) (6) (O) only.

Appellant relies on two points for reversal, as follows:

“1. The Arkansas Employment Security Act exempts from coverage any service exempt under the terms of the Federal Unemployment Tax Act, 26 U.S.C.A. 3306.
‘ ‘ 2. The services and work performed by Appellees, Scott and Standridge, constitute agricultural labor and, are, therefore, exempt from coverage under the Arkansas Employment Security Act. Acts 1941, No. 391.”

The points relied on in this case were actually disposed of more in detail in the Hanford Produce Co. case, supra, so the legislative history of the Arkansas Employment Security Act will not be reitereated here.

The facts of this case and the contention of the appellant are clearly set out in its brief, and we adopt them as onr own for the purposes of this opinion.

“AVI is engaged, among other things, in the production of poultry. It owns a few farms on which poultry is raised. Most of the poultry it produces, however, is through the contract grower system. Under this system, the poultry is raised by independent growers under contract wtih AVI. To insure that the poultry will be of the highest grade, certain services are supplied to the growers by AVI. These services generally consist in checking the health, feed, and housing of the flock and in supplying managerial advice to the growers. AVI supplies these services through its employees who visit the contract growers’ farms where the necessary services are provided.
“The Appellees were employed by AVI to supply these services. Their specific duties were as follows:
11 Louis L. Scott — Until April 15, 1964, Scott was a farm manager who supervised the raising of cattle, and the planting and harvesting of crops on AVI owned farms. After April 16, 1964, he was a broiler serviceman, whose duties included the checking of broilers each week, the vaccination of the chickens, the testing and treating of the chickens for any disease, and the overall management of the broilers. Scott, on occasion, provided water for the chickens and other services necessary for the successful raising of the chicken. Most of these services were performed on farms , other than those owned by AVI. The last day on which Mr. Scott worked for AVI was. February 5, 1965.
“Raymond Standridge — From March 22,1964 to October 9, 1964, Standridge was employed as a member of a broiler service crew. He ran blood tests on chickens, transferred flocks from one farm to another, repaired chicken houses on the farms, did some cleanup work in the chicken houses., and caught and cooped chickens when they were to be transferred from one farm to another. Most of these services were performed on farms owned by persons other than AVI.
“Appellant contends that Appellees were engaged in ‘ agricultural labor ’ which is exempted from coverage under Ark. Stat. Ann. § 81-1103 (i) (6) (0) (Eepl. 1960) by reference to the Federal Unemployment Tax Act, 26 U.S.C.A. § 3306 (c) (1) Int. Rev. Cpde of 1954 § 3306 (c) (1), and therefore, that appellant is not liable for contributions with respect to wages paid to the appellees.”

We agree that appellees were engaged in “agricultural labor” under the decision of Maplewood Poultry Co. v. Maine Employment Security Commission, 151 Me. 467, 121 A. 2d 360, cited by the appellant. However, appellees are not precluded from receiving benefits under Ark. Stat. Ann. § 81-1103 (i) (6) (B) under the decision of C. M. T. Company v. Maine Employment Security Commission, 163 A. 2d 369, where the Supreme Court of Maine again construed its statute after it had been amended to conform substantially with our own.

Appellant’s only contention here is that the employment or service in which the appellees were engaged was exempt under the Federal Unemployment Tax Act, 26 U.S.C.A. 3306 (c) (1) as referred to in the last one sentence paragraph of Ark. Stat. Ann. § 81-1103 (i) (6) (0)

. Ark. Stat. Ann. § 81-1103 (5) (i) defines employment as follows:

“ ‘Employment’ means any services performed * * and 81-1103 (i) (6) insofar as it relates to the problem here, is as follows:
“(6)' Exempted Employment. The term ‘employment’ shall not include—
(A) Domestic service in a private home.
(B) Services performed in the employ of an owner or tenánt operating á farm, in connection with the cultivation of the soil, the harvesting of crops, or the raising, feeding, or management of livestock, bees or poultry, or in connection with the processing, packing or marketing of the produce of such farms as an incident to ordinary farming operations, and services performed in the ginning of cotton. # # *
“(0) Service performed in the employ of a corporation, community chest, fund, ór foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of. any private shareholder or individual.
“Also any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under F'ederal law.”

Section 26 U. S. C. A. 3306 (8) (c) defines employment as follows:

“For the purposes of this chapter, the term ‘employment’ means any services performed * • * except — * * * (1) Agriculture labor [as defined in subsection (k)].” Section 26 U.S.C.A. 3306 subsection (k) is as follows:
“(k) Agricultural labor, — For purposes of this chapter, the term ‘agricultural labor’ includes all service performed—
(1) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife.’ ’

So the question here, reduced to its lowest denominator, is whether the appellees are entitled to unemployment benefits because their services in agricultural labor were not performed in the employ of an owner or tenant operating a farm under the State law, or whether they are not entitled to unemployment benefits because their services in agricultural labor were performed on a farm, in the employment of any person under the Federal law.

Appellant seems to concede that the Federal Congress has not pre_-empted the State Legislature in the matter of coverage and exemptions in the field of employment security legislation.

Through the legislative process, Arkansas has enacted its own statutory provisions for agricultural exemptions under its employment security laws as above . set out. The coverage is broader and the exemptions narrower under the State law than under the Federal law, 26 U.S.C.A. 3306 (8) (c) and (k), supra.

When first enacted, both the Federal Statute, U. S. Stat. at Large 74th Cong. 1935-1936, Title IX, § 907 (c) (1), arid, State Statute, Acts of Arkansas 1937, Act 115, exempted all “agricultural labor”, but by legislative amendments only “services performed in the employ of an owner or tenant operating a farm” are now exempt from the term “employment” under the State law, Ark. Stat. Ann. § 81-1103 (i) (6) (B), supra, and “all services performed on a farm, in the employment of any person” constitute the “agricultural labor” now excepted from the term “employment” under the Fedral law, 26 U. S. C. A. 3306 (8) (c) (1) (k), supra.

Appellant argues that by the last, one sentence paragraph, in § 81-1103 (i) (6) (0), supra, the Arkansas Legislature adopted the broader exemption provision of the Federal law, and the more narrow exemption specifically provided in the State law no longer applies. We do not agree that such was the intent of the Arkansas Legislature in amending the 1937 Act by Act 391 of 1941, and we are so holding in the case of Hanford Produce Co. v. C. A. Clemmons, et al, 242 Ark. 240, 412 S. W. 2d 828.

The judgment of the trial court is affirmed.

Affirmed.

FoglemaN and Byed, JJ., dissent.

John A Fogleman, Justice,

dissenting. I respectfully dissent from the opinion of the majority in this case for the reason that proper construction of Ark. Stat. Ann. § 81-1103 (i) (6) (B) exempts the activities of these employees from the application of the Act. What I contend is the proper construction of that Act is set out in mv dissenting opinion in Hanford Produce Company v. C. A. Clemmons, et al 242 Ark. 240, 412 S. W. 2d 828, handed down on this date. I agree with the majority that no exemption can be based upon Ark. Stat Ann. § 81-1103 (i) (6) (0), but for an entirely different reason. If the last sentence of that s.ub-section of the Act is given the construction placed upon it by the majority, our General Assembly has never engaged in a greater exercise in fútil" ity than by adding this sentence. I agree that the word “also” means something has been added. According to Black’s Law Dictionary, it means “besides, as well, in addition, likewise, in like manner, similarly, too, withal, some other thing, including, further, furthermore, in the same manner, moreover, and nearly the same as the word ‘and’ or ‘likewise’.” How could anything be added to further exempt the services set out in the first sentences? If they are exmpt, they are completely exempt and it seems obvious to me that adding the second sentence could not add anything. What could have been overlooked if they were completely exempt? The majority does not even suggst á possibility.

It is my opinion that this sentence does not afford an exemption to appellant because it is clearly unconstitutional, being in violation of Article 5, § 23 of the Arkansas Constitution, which reads:

“No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length. ”

In Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, this court held that another section of the act adopting the same method of procedure for calling in city warrants as provided for counties in like cases was constitutional but that § 4 of the Act undertook to extend to cities and towns the positive provisions of the law applicable to counties by a general reference to the prior law and was unconstitutional.

This problem is treated extensively in State v. Armstrong, 31 N. M. 220, 243 P. 333 (1924), opinion on rehearing’ at 243 P. 346, wherein the Watkins case is cited as authority. The New Mexico constitutional provision is identical to ours, except for the omission of the words “conferred by”. The New Mexico court called the rule announced in the' Watkins case and followed in Farris v. Wright, 158 Ark. 519, 250 S. W. 889, the “Arkansas rule” and found that the Arkansas court had adhered to the rule in White v. Loughborough, 125 Ark. 57, 188 S. W. 10, and Poe v. Street Improvement Dist. No. 340, 159 Ark. 569, 252 S W. 616, and not departed from it in Common School District v. Oak Grove Special School Dist., 102 Ark. 411, 144 S.W. 224 ; State v. McKinley, 120 Ark. 165, 179, S.W. 181 ; House v. Road Improvement Dist., 154 Ark. 218, 242 S.W. 68. They held unconstitutional a New Mexico Act in which, “the penal provisions of the National Prohibition Act are hereby adopted” and “all Acts or .omissions prohibited or declared unlawful by the Eighteenth Amendment to the Constitution of the United States or by the National Prohibition Act are hereby prohibited and declared unlawful and violations thereof are subject to the penalties provided in the National Prohibition Vet”.

The rule was also applied in Rider v. State, 132 Ark. 27, 200 S. W. 275, where the application of Act 310 of 1909 was sought to be extended to two additional townships of a county by reference to the Act only. In Hollis and Company v. McCarroll, 200 Ark. 523, 140 S. W. 2d 420, this court defined the meaning of the word ‘1 extended” in this section and quoted extensively from State v. Armstrong, 31 N. M. 220, 243 P 333 (1924). The definition is as follows :

“* * * The term ‘extended’, as used in Section 23 of art. 5 of the constitution has reference to an attempt by the law-making body (a) to add something to the text of a preexisting law, or (b) to impose conditions upon another statute.”

It seems to me that the conclusion is inescapable that the Arkansas Legislature, by adding the second paragraph in 2 (6) (0) of Act 391 of 1941 [Ark. Stat. Ann. § 81-1103 (i) (6) (0) (Repl. 1960] sought to add employment exemptions “under terms of Federal Unemployment Compensation laws so long as exempt under Federal law” to the text of the preexisting law and to impose conditions of the Federal laws on the Arkansas Statute, and, thus, let the United States Congress legislate exemptions or remove exemptions for the State of Arkansas. Furthermore, I do not see how it could be said that the General Assembly did not at ■'mpt to “confer” exemptions provided for in the Federal laws referred to.

Particularly in view of the blank check to Congress therein provided, this is obviously the kind of “blind legislation” sought to be prohibited. This also violates § 1 of Amendment No. 7 to the Constitution of Arkansas by which the legislative power of the people of Arkansas i‘s vested in the General Assembly except as reserved to them therein. No closer parallel could be found than in the decision of this court holding Act 115 of 1955 an unconstitutional delegation of legislative powers. Crowley v. Thornbrough, 226 Ark. 768, 294 S. W. 2d 62. This Act required the payment to mechanics and laborers minimum wages based upon wages that will be determined by the Secretary of Labor of the United States to be prevailing for such classes of mechanics, and laborers in the particular area in which the work was to be performed. If that Act was an unconstitutional delegation of legislative power, so is the sub-section in question here.

There is a further reason why this sub-section is invalid, which also serves to indicate the hazard of this type of legislation. The reference is to the “terms of Federal Unemployment Compensation laws.” What are these? Reference to the “Populer Name Table” in USCA gives references only to “Federal Unemployment Taos Act” (1939) and “Federal Unemployment Compensation Tax Act” (1954). If either of these can be the law to which reference is intended, which one is it? The one passed before our Act or the one passed after it? If the first, then do the amendments passed in 1944,1945, 1946 and 1954 apply? How can Title 26, Chapter 23, § 3306 be the law intended to apply here since it wasn’t adopted until 1954.? A search of “Federal Acts by Popular Names or Short Titles” compiled by Shephard’s Citations discloses “Federal Unemployment Insurance Contributions Act” and “Federal Unemployment Tax Act” perhaps the same act originally, the former being carried in Code Title 26, § 3101, et seq, and the latter in § 3301, et seq. Reference to these sections shows, various amendments since the adoption of our Act. In short, what are “Federal Unemployment Compensation laws”? [Emphasis ours]

I would reverse the judgment of the circuit court, the Board of Review and the Appeals Referee.

I am authorized to state that Mr. Justice Byrd joins in this dissent.


author: Paul Wabd, Justice.

text:
    Greoge Lee Tatum v. K. W. Rester
    5-4106
    412 S. W. 2d 293
    Supplemental opinion on denial of rehearing delivered March 27, 1967
    [Original opinion delivered February 20, 1967,
    241 Ark. 1059.]
   Paul Wabd, Justice.

In a petition for rehearing the appellee insists that, under the rules governing the liability of an owner or occupier of land, he was under no duty to exercise ordinary care for the appellant’s safety until he knew or reasonably should have known that the appellant was. in a position of danger. On this basis it is contended that our original opinion in the case at bar is in conflict with Paragraph B of AMI 1106, which is said by counsel to be a correct statement of the law.

We adhere to our opinion. When the condition of the premises has no ca sal connection whatever with the injury to the plaintiff, the status of the defendant as. an owner or occupier of land is irrelevant. We agree with the view expressed by the Supreme Court of Washington in Potts v. Amis, 62 Wash. 2d 777, 384 P. 2d 825. There the plaintiff was a guest at the defendant’s summer home. In attempting to demonstrate the correct use of a golf club the defendant struck and injured the plaintiff. The condition of the premises obviously had no bearing upon the cause of the plaintiff’s injury. Hence the court was, we think, correct in making this declaration of law: “The mere fortuitous circumstance that this injury occurred -while the plaintiff stood upon land belonging to the defendant should not relieve the latter of liability.” For the contrary view, with which we disagree, see Cochran v. Abercrombie, Fla. App., 118 So. 636, 79 A. L. R. 2d 986.

In the case at bar the condition of the premises had no causal connection with the appellant’s injury. His hand was mashed against a man-made post, but the same thing would have happened if the obstruction had been a tree or other harmless object. Hence the court should have instructed the jury upon the rule of ordinary care as in the Linxwiler case, cited in our original opinon, Avhere, as here, the condtion of the premises had nothing to do with the accidental injury.

We do not now pass upon the accuracy of Paragraph B of AMI 1106 except to point out that it should not be given when, as in the case at bar, there is no relationship between the plaintiff’s cause of action and the condition of the premises. There is no reason for us now to speculate upon whether or not a fact- situation might arise which would justify the trial court in giving Paragraph B of AMI 1106.

Rehearing denied.


author: CarletoN Harris, Chief Justice.

text:
    G. D. Nelson v. Berry Petroleum Company et al
    5-4136
    413 S. W. 2d 46
    Opinion delivered April 3, 1967

      Kenneth Coffelt, for appellant.

      Keith, Clegg & Eckert and Wright, Lindsey & Jennings and Mahony & Yocum and Catlett & Henderson and Smith, Williams, Friday & Bowen, for appellee.
   CarletoN Harris, Chief Justice.

Appellant, Gr. D. Nelson, a citizen and taxpayer of Arkansas, instituted suit against appellee companies, Berry Petroleum Company, Arkansas Bitumuls Company, Lion Oil, Inc., Humble Oil and Refining Company, The American Oil Company, MacMillan Ring-Free Oil Company, Inc., and Bitucote Products Company, alleging, mter alia-.

‘ ‘ For several years next before the filing of this suit, the defendants, have sold to the State of Arkansas and its Highway Department asphalt for the construction of highways in this State, and during said period this plaintiff believes and therefore alleges:
“That said defendants have purposely, intentionally and fraudulently connived together and entered into a conspiracy to fix prices for said asphalt far in excess of the fair market and customary value thereof in this and adjoining territories. That the defendants have systematically over the years, in an effort to carry out their designed scheme as herein alleged, agreed with one another that they would not compete with each other on asphalt contracts, and prices fixed thereunder in the various highway districts of Arkansas.***”

The complaint asserts that appellee companies have received unlawfully in excess of $3 million of taxpayers’ money; that the grades and quantities, of asphalt sold to the taxpayers of this state have been of a lower grade and quantity than paid for. Appellant prayed for an accounting of appellees ’ dealings and transactions, with the state and its highway department, in order that the amount of funds and monies owed the taxpayers by reason of the foregoing allegations might‘be determined. To this complaint, appellees filed their several demurrers., and these demurrers were sustained by the court. Appellant elected to stand on his pleading, declining to plead further, and the court thereupon dismissed said complaint. From the decree so entered, appellant brings this appeal. The issue is thus simply whether the complaint stated a cause of action.

In Quinn v. Stuckey, Admr., 229 Ark. 956, 319 S. W. 2d 839, this court said:

“At the outset it is well to state the rule for testing a case on demurrer. In Tyler v. Morgan, 214 Ark. 667, 217 S. W. 2d 606, we said:
“ ‘Appellees demurred to this complaint on the ground that it did not state facts, sufficient to constitute a cause of action. The trial court sustained the demurrer and this appeal followed.
‘ ‘ ‘ The question presented is: Treating all allegations in the complaint, which are well pleaded, as true, and construing them liberally in favor of the pleader, as we must, was a cause of action stated? We bold that there was. “It is not necessary that the complaint should state a cause of action in every particular, for if it contains the substance of a cause of action imperfectly stated, the presumption would be that the defects in the complaint were cured by the proof at the trial.” Clow v. Watson, 124 Ark. 388, 187 S. W. 175.’ ”

Likewise, in Dodson v. Abercrombie, 212 Ark. 918, 208 S. W. 2d 433, we stated:

“It is well settled that in testing the sufficiency of a pleading by general demurrer every reasonable intendment should be indulged to support it. If the facts stated in the pleadings, together with every reasonable inference therefrom constitute a cause of action, or a valid defense, then a demurrer should he overruled. Ark. Life Ins. Co. v. Am. Nat. Ins. Co., 110 Ark. 130, 161 S. W. 136 ; Neal v. Parker, 200 Ark. 10, 139 S. W. 2d 41.”

With the rule as thus stated, we have reached the conclusion that the complaint did state a cause of action, and accordingly our discussion will be directed to the points relied upon by appellees in their argument supporting the action of the Chancellor in sustaining the demurrers. Pour different arguments are advanced, and we proceed to a discussion of these points, though not in the order listed.

It is. asserted that the court has no jurisdiction of the cause, it being the position of appellees that the instant complaint is no more than an attempt to assert a cause of action based upon the Sherman Anti-Trust Act and the Clayton Act. We agree that state courts have no jurisdiction in federal antitrust actions, and many federal cases so hold. However, we do not agree that the instant suit is simply an attempt to seek recovery under these federal acts. Instead, it appears, to be an action instituted pursuant to Article XVI, Section 13, of the Constitution of the State of Arkansas, which reads, as follows:

“Any citizen of any county, city or town may institute suit in behalf of himself and all others, interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever. ’ ’

This is a broad provision of our Constitution, and has been utilized in various types of actions. The case of Starnes v. Sadler, 237 Ark. 325, 372 S. W. 2d 585, contains a comprehensive discussion of the meaning of the term, ‘ ‘ Illegal Exaction. ’ There, we said:

“This Chancery Court action was instituted pursuant to Article XVI, Section 13, of the Constitution of the State of Arkansas, and the Chancery Court had jurisdiction of this Constitutional proceeding. This Constitutional provision is self-executing, añd imposes no terms or conditions upon the right of the citizens there conferred. Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875 ; 8 Ark. Law Review 129 (1954).
“ ‘Illegal Exaction’ under the Arkansas Constitution means both direct and indirect illegal exactions, thus comprehending any attempted invalid spending or expenditure by any government official, Quinn v. Reed, 130 Ark. 116, 197 S. W. 15 ; Farrell v. Oliver, 147 Ark. 599, 226 S. W. 529.
“ ‘Illegal Exaction’ means far more than the mere collection of unlawfully levied taxes. With little limitation, almost any misuse or mishandling of public funds may be challenged by a taxpayer action. Even paying too much for cleaning public outhouses has been held by our courts as basis for a taxpayer’s right to relief, Dreyfus v. Boone, 88 Ark. 353, 114 S. W. 718. Any arbitrary or unlawful action exacting taxes or tax revenues may be restrained and annulled by a taxpayer affected by such procedure, Bush v. Echols, 178 Ark. 507, 10 S. W. 2d 906 ; McClellan v. Stuckey, 196 Ark. 816, 120 S. W. 2d 155 ; Park v. Hardin, 203 Ark. 1135, 160 S. W. 2d 501 ; Brookfield v. Harahan Viaduct Improvement District, 186 Ark. 599, 54 S. W. 2d 689.
“The remotest effect upon the taxpayer concerning any unlawful act by a tax supported program or institution may be enjoined under Article XVI, Section 13, of the Constitution of the State of Arkansas, Green v. Jones, 164 Ark. 118, 261 S. W. 43.* * *
“Our Court thoroughly discussed ‘illegal exaction’ in the case of Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S. W. 2d 672, wherein jurisdiction of the Chancery Court was questioned and illegal exaction was involved. This Court stated that the theory of an illegal exaction does not necessarily involve an illegal tax citing the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, wherein the Court was not dealing with illegal tax, but with the question of illegal use or appropriation of county funds.* * *
“The case of Arkansas County Judges Association v. Green, cited the case of Ward v. Farrell, 221 Ark. 636, 253 S. W. 2d 353, wherein this Court stated concerning the involved Constitutional provision:
“ ‘There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that á remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by- the misapplication entitles them to relief against such misapplication.’ ”

In Revis v. Harris, 217 Ark. 25, 228 S. W. 2d 624, suit was instituted by Owen Revis, a citizen and taxpayer, against Sam Harris for recovery of money, which Revis alleged was illegally paid to Harris while he (Harris) was acting as Municipal Judge. Pursuant to a motion to dismiss the complaint filed by Harris, the court overruled so much of the motion as sought to strike the prayer seeking injunctive relief, but granted the motion as to that part of the complaint seeking recovery of the funds allegedly illegally paid to Harris. On appeal to this court, we reversed this holding, stating:

“In that case [Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544], Burnett, a citizen and taxpayer, brought suit to recover salary illegally paid Sitton by the second class City of Clinton, while serving as a de facto marshal. There it was alleged Burnett was not a proper party to bring the suit and that equity was without jurisdiction. We there held that Burnett, as a resident and taxpayer, was a proper party to bring this suit since taxpayers are the equitable owners, of public funds and may sue to prevent any illegal exactions whatever, within the meaning of Art. 16, § 13, of our Constitution.
“So here, if appellant’s allegations in this complaint to the effect that appellee had been paid sums of money illegally by the City of Clarksville while acting as Municipal Judge, and for other services, without right or authority of law, were true, appellant stated a cause of action and was a proper party to initiate the suit.
“Chancery had jurisdiction and the power to grant affirmative as well as injunctive relief in the circumstances. Grooms v. Bartlett, 123 Ark. 255, 185 S. W. 282.”

In Grooms v. Bartlett, supra, this court stated:

“The taxpayers of a county are the persons from whom the public revenues are obtained and are directly interested in protecting the same. They are proper persons to maintain suits against public officers to prevent or remedy misapplication of the public funds, and in such cases chancery has. the power to grant affirmative as well as injunctive relief. Chancery has not only power to prevent such wrongs, but it has power to require reparation for that which has been done.”

We think these cases make it clear that the Chancery Court had jurisdiction to hear this s.uit.

It is also asserted by appellees that the complaint does, not state facts sufficient to constitute a cause of action. Again, we are unable to agree with the contention made. In the first phase of this argument, appel-lees mention that there is a complete absence of any allegation in the complaint that appellant, or anyone else, had made demand upon the State Highway Commission or the State of Arkansas, or its attorneys, to institute proceedings against appellee companies. Appellees contend that it is necessary that this suit be brought by the Attorney General, or at least he must have refused to bring it, before a taxpayer may act, and it is pointed out that there is no allegation that the Attorney General refused to bring the suit. Several earlier cases are cited in support of this argument, but the controlling case on this point is Samples v. Grady, supra. There, we stated:

“Unlike § 23 of Art XIX of the Constitution, § 13 of Art. XVI of the Constitution is self-executing, and requires no enabling act or supplementary legislation to make its provisions effective. This section of the Constitution last mentioned confers the right upon any citizen to institute suits in behalf of himself and all others interested to protect against the enforcement of any illegal exaction whatever.
“This is made a class suit in which any citizen may for the benefit of himself, and all other interested citizens, and any citizen would have the right to be made a party, and this is a right which other citizens should exercise if there were any reason to apprehend that the suit was collusive between the parties, plaintiff and defendant.
“This § 13 of Art. XVI of the Constitution is not only self-executing, but it imposes no terms or conditions npon the right of the citizen there conferred, and we would he required to write something into the constitution, which does, not there appear, if we' hold that this right was conditional. However, the General Assembly has the power to prescribe the practice to be pursued in its enforcement.
“We do not hold that the attorney general, where the interest of the state is involved, or the prosecuting attorney, in appropriate cases, might not institute such an action; but we do hold that the right of a citizen is not dependent upon the inaction of these officers, or either of them. We have rather two methods whereby the interests of affected inhabitants may be protected. We find nothing in § 13 of Art. XVI of the Constitution making the refusal of any officer to bring this suit a condition precedent to the exercise of a right given without condition imposed upon its exercise.”

Under the same point, it is also asserted that, though alleging that appellees have defrauded the taxpayers of Arkansas, there are no particular facts pleaded to substantiate this, statement, and that, standing alone, the facts pleaded constitute no more than a conclusion of the pleader. The simple answer to this, contention is found in the recent case of Brewer v. Hawkins, 241 Ark. 460, 408 S. W. 2d 492 (Nov. 1966). In comparing the complaint in that case (the allegations, being set out in full) with the complaint in the instant case, it is immediately apparent that the allegations before us are as specific as those in Brewer. For that matter, it is evident that it would have been difficult, if not well high impossible, for Nelson to have alleged specific acts relied upon. This, information could hardly be obtained until after institution of the suit. Of course, if appellees felt that the allegations were vague and should be pleaded more distinctly and clearly, a motion to make more definite and certain could have been filed. This was not done.

It is also contended that Nelson, as a citizen and taxpayer, does not have legal capacity to maintain the action. The cases cited in our discussion of the other points answer this contention, and no additional comment is necessary.

Finally, it is alleged that there is a defect of parties plaintiff, it being asserted that the Arkansas Highway Department was a necessary party. We have already cited sufficient authority to the effect that the taxpayer has. a perfectly valid right to institute an action to recover public funds, and this being true, the right is not dependent upon any state agency becoming a party. Of course, there is nothing to prevent the Arkansas Highway Department from intervening in the case, and it might well do so; for that matter, the Attorney General, on behalf of the state, is entitled to intervene. Ap-pellees do not make clear just how appellant could force the Highway Department to.become a plaintiff, but, from what has been said, it is evident that the department is not an essential party to the litigation.

We reiterate, in effect, the statement made at the outset, vie., that we are only called upon to determine whether the complaint was good as against the demurrers filed, and, under the cases, cited on that point, we unhesitatingly reply in the affirmative.

The decree is reversed, and the cause remanded, with directions to proceed in a manner not inconsistent with this opinion.

       By agreement of the parties, and the consent of the court, the cause was dismissed as to Humble Oil and Refining Company, and the American Oil Company.

       There is also a state law, Ark. Stat. Ann. § 70-101 (Repl. 1957) prohibiting corporations, partnerships, individuals, “or other association or person whatsoever” from entering into combinations to fix prices, maintain certain prices, or to fix or limit the amount or quantity of certain articles. This is defined as a conspiracy to defraud. Aside from any statutory authority, an attempted monopoly or an agreement in restraint of • trade, was a criminal conspiracy at common law. Hammond Packing Company v. State, 81 Ark. 519, 100 S. W. 407.

         Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579 ; Oats v. Smith, 194 Ark. 812, 109 S. W. 2d 955 ; Etheridge v. Riley, 196 Ark. 713, 118 S. W. 2d 665. The last two cases were suits to collect on the bond of officeholders, and the actions were brought in compliance with specific statutory provisions.

       The opinion also distinguishes this case from Gladish v. Lovewell, supra.


author: George Rose Smith, Justice.

text:
    Leon B. Catlett et al v. The Republican Party of Arkansas et al
    5-4137
    413 S. W. 2d 651
    Opinion delivered April 3, 1967
    [Rehearing denied May 8, 1967.]

      Bruce Bennett), Attorney General, H. Clay Robmson, Asst. Atty. Gen., for appellant.

      Wright, Lindsey & Jenni/ngs, for appellee.
   George Rose Smith, Justice.

This is a class suit brought by representatives of the Republican Party of Arkansas against representatives of the Democratic Party of Arkansas, in which the plaintiffs seek (a) a declaratory judgment with respect to the constitutionality of two statutes pertaining to elections, (t>), an injunction to restrain members of the State and Pulaski County Boards of Election Commissioners (who are also parties to the suit) from complying with those statutes., and (c) a declaratory judgment construing a third provision of the, election laws. The chancellor granted the relief sought, holding that the first two acts are unconstitutional and that the third act applies only to primary elections.

For an understanding of the issues we need summarize the three statutes only in broad outline. Act 477 of 1963 (Ark. Stat. Ann. § 3-608 [Supp. 1965]), prohibits the minority party member of the County Board of Election Commissioners from naming, at least in certain instances, members of the majority party as election judges and clerks. The chancellor found this act to be unconstitutionally vague and discriminatory.

Secondly, Section 3 of Act 56 of the First Extraordinary Session of 1965 (Ark. Stat. Ann. § 3-273 [Supp. 1965]) prohibits a person who has voted in a particular party primary from being designated by the opposite party to serve as an official at the next general election. The chancellor held that this statute was an attempt to amend an initiated act, Ark. Stat. Ann. § 3-609 (Repl. 1956), and failed to receive the two-thirds vote in the legislature that is. required for such an amendment.

Thirdly, Section 1 of Act 57 of the same extra session (% 3-275) makes it a felony for any person to cast a ballot in more than one party primary election held on the same day. The chancellor declared that this act has no application to persons voting in a general election.

It will be seen that all three of the statutes in issue pertain merely to the procedure to be followed in the conduct of political elections. In view of this fact we cannot reach the merits of the case, for it is too well settled even for argument that a court of equity has no jurisdiction of such questions, even by consent of the litigants. We mention only a few of the many eases so holding.

The landmark decision is Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980 (1913), where we held that a chancery court could not review the action of the State Democratic Central Committee in certifying a nominee for the office of governor. This language from that opinion is directly in point here:

“Wherever the established distinction between equitable and common law jurisdiction is observed, as. it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights.which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property right but pertain solely to the political administration of government. ’ ’

In Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002 (1926), we held that in an earlier proceeding the chancery court had no jurisdiction to enjoin city commissioners from calling an election. From the opinion: “It was merely a political matter not involving any property rights or any matters of public taxation, and the chancery court had no power to interfere either by injunctive process or otherwise. Hester v. Bourland, 80 Ark. 145 [95 S. W. 992 (1906)].”

It is immaterial that the parties have not raised the issue of jurisdiction, for, as we held in Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412 (1944): “Even though both sides in the present litigation have asked this eou:rt to pass on the eligibility of Heslep, nevertheless we cannot do so in this equitable action, because there is no foundation for equitable jurisdiction.” Nor was the situation changed by the passage of our declarar tory judgment statute, because that act empowers a court of equity to render a declaratory judgment only when the subject matter is within the jurisdiction of chancery. Jackson v. Smith, 236 Ark. 419, 366 S. W. 2d 278 (1963).

We conclude that equity is without jurisdiction. This case, like Rich v. Walker, 237 Ark. 586, 374 S. W. 2d 476 (1964), hardly calls for a remand with ^directions that the matter be transferred to law. These appellees filed their suit as representatives of the minority political party and asked that the statute be construed in anticipation of, the 1966 general election. No justiciable, controversy remains, not only because the general election in question has already been held but also because the Republican Party emerged from that election as the majority party, under the statutory definition. Ark. Stat. Ann. § 3-606 (Repl. 1956). It is not the practice of our. courts to decide merely academic questions. Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80 (1949).

Reversed and dismissed.


author: Paul "Ward, Justice.

text:
    Arkansas State Highway Commission v. Lewis Holt, er ux
    5-4141
    Opinion delivered April 3, 1967

      George 0. Green and Don Langston, for appellant.

      Ralph W. Robinson, for appellee:
   Paul "Ward, Justice.

This is a condemnation action. The Arkansas State Highway Commission (appellant) sued to condemn two small parcels of land, one being in front of the residence and the other being part of rental property, belonging to Lewis. Holt and his wife (appellees).

Appellant deposited $6,200 in court to' compensate appellees for the land taken and for damages to the remaining property. Upon trial, the jury awarded ap-pellees the sum of $12,500 and appellant appeals, contending the award is excessive. Appellant bases this contention on two grounds. One relates to certain value testimony, and Two pertains to substantiality of the evidence.

Background Facts. The condemned land was to be used by appellant in constructing ap overpass on Highway No. 40 in Crawford County. For clarity and brevity, we will refer to the residence property as Tract 1 and to the rental property as Tract 2. Appellees reside on Tract 1 which consists of .78 acres. It fronts 312 feet on Bay Lane Road which is blacktopped and it also borders on Rudy Road. Tract 2, consisting of two and one-half acres, lies a short distance east of Tract 1 and it also borders on the two roads mentioned above.

One. Admissibility of Evidence. Appellant presents three separate assignments of error hereafter considered.

(a) Jay Neal, a witness for appellees, offered to give his opinion as to the before and after value of both parcels of land. Over appellant’s objection, the trial court allowed the witness to give his opinion. Under the facts disclosed by the record, we think the trial court was correct.

Neal, who was seventy, two. years old, has lived all his life in that area. He owns four or five pieces of property in Crawford County, and has bought and sold property for more than sixty years. He stated he had familiarized himself with the fair market value of property in that área during all that time, and that he had previously made appraisals for appellant on different occasions.

Although Neal was a lay witness and not an expert in real estate values, we think he was qualified to testify. In Lazenby v. Ark. State Highway Commission, 231 Ark. 601, 331 S. W. 2d 705, we find this statement:

“In numerous cases we have allowed non-expert witnesses ... to testify regarding the market value of land if the testimony shows that they are familiar with such matters.”
(b) After witness Neal had given his testimony appellant moved the court to strike same “because he has given no fair basis for his testimony ... he did not qualify as an expert on direct examination.” The court overruled the motion and, in view of what we have just said previously, we hold the court was correct.
(c) E. K. Ragge, a witness for appellees, also gave testimony as to the before and after value of the subject property. At the close of his testimony appellant moved to strike because “he has only used sales which occurred after the date of taking and there is no fair and reasonable basis for his opinion ...”

The trial court properly overruled appellant’s motion. Ragge qualified as an expert in the real estate business, having been so engaged in Crawford County for five years selling farms and residential property. He also viewed the subject property. He was, therefore, qualified to express his opinion. In Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436, we said:

“An expert witness, after having established his qualifications and his familiarity with the subject of inquiry, is ordinarily in a position to state his opinion. ’ ’

It was therefore, as also pointed out in the above cited case, incumbent upon appellant to show there was no reasonable basis for Ragge’s opinion. We are unwilling to say this was sufficiently shown in this case. Appellant points out only that Ragge used “sales which occurred after the date of the taking”. Consequently we think it was proper for the trial court to give the jury an opportunity to consider and evaluate the testimony.

Two. After a careful consideration of the value testimony disclosed by the record as summarized below, we have concluded the jury verdict is supported by substantial evidence.

The value of the land taken together with the damage done thereto (including both parcels) was assessed by appellee Holt and each of his witnesses as follows:

Robert G-elly — $11,500.
Mack Bowling — $11,750.
Jay Neal — $11,500.
E. K. Ragge — $10,500.
Holt — $15,000.

Not counting Holt’s testimony, it reasonably appears there was substantial evidence to support a verdict in the amount of $11,750. The question presented, therefore, is whether Holt’s testimony presents substantial evidence to support an additional $750 or a total of $12,500 — the amount fixed by the jury. We have concluded that it does.

Holt’s testimony reveals: He, his wife and two children live on Tract 1 on which is located a four room dwelling, a garage and a utility room; the condemned right-of-way takes in the driveway in front of his home and reaches within six feet and six inches of his front porch — it destroyed large shade trees, shrubbery, a hedge, and flower beds, and there is no space left for a driveway. The right-of-way takes a strip of land approximately seventy five feet wide off of Tract 2 on which is located a rent house (renting for $40 per month), and destroys a hedge, shrubbery, and several large shade trees. Holt also testified at length and in minute detail as to many other items of damage and inconveniences caused by the taking. No other witness had the opportunity to so fully appreciate the damage to the property, especially to residence property. The jury could have reasonably considered this situation in arriving at its verdict.

In Ark. State Hghway Comm. v. Weir, 237 Ark. 692 (p. 694), 376 S. W. 2d 257, there appears this statement:

“Appellant contends that the uncorroborated testimony of the owners is not sufficient to 'sustain the judgment, and as authority cites Hot Springs County v. Prickett, 229 Ark. 941, 319 S. W. 2d 213. But that case does not stand for the proposition that, as a matter of law, the uncorroborated testimony of a landowner is not sufficient to sustain an award for damages.”

In Ark. Highway Comm. v. Gardner, 228 Ark. 8 (p. 11), 305 S. W. 2d 330, we said:

“The credibility of the various witnesses who testified concerning the damages sustained by appellees was a matter for the determination of the jury, and it furnishes no ground for reversal that the verdict might appear to us to be contrary to the preponderance of the evidence.”

Particularly applicable here are two statements found in Ark. State Highway Comm. v. Muswick Cigar & Beverage Co., 231 Ark. 265 (p. 271), 329 S. W. 2d 173:

“This court has on numerous occasions affirmed the right of the owner of property (and it is pointed out that Hoffman was not the sole owner of subject property) to testify as to- its value.”
# #
“Plaintiff resided on the land and was familiar with the conditions, and we think the court was justified in allowing her to state her opinion of the extent of the injury to the land and the depreciation in the value thereof.”

In view of what has heretofore been pointed out we are unwilling to say there is no substantial evidence in the record to support the jury verdict.

Affirmed.


author: Lyle BrowN, Justice.

text:
    Patricia Moore Taylor Holt v. James F. Taylor
    5-4155
    413 S. W. 2d 52
    Opinion Delivered April 3, 1967

      Willis V. Lewis, for appellant.

      Phil Hicky and E. J. Butler for appellee.
   Lyle BrowN, Justice.

This appeal questions the order of the trial court, in which the court vested custody of a six-year-old boy in the father, subject to custody by the mother during summer vacation and for one week at Christmas, plus reasonable visitation rights..

James F. Taylor, appellee here, was granted a divorce in the lower court, April 16, 1963, under subsection 5, Ark. Stat. Ann. § 34-1202 (Repl. 1962), from Patricia Moore Taylor, appellant. At the request of the parties, the court incorporated into the decree their agreement as. to the custody of their only child, James F. Taylor III, then two and a half years of age. The substance of this agreement was that if the mother entered and remained in college, the father would have custody of the child during the nine school months., and the mother would have custody during the summer months. Otherwise, each parent would have custody of the child six months in the year. It was also agreed that the court would review the matter of custody when the child attained the age of six years. During the three years that followed, there was considerable friction between the parents relative to custody, the details of which are not pertinent to a decision here.

In July 1965, the mother, appellant here, filed a petition seeking to modify the child custody provisions. She asked for permanent custody, subject to the father’s right of reasonable visitation, and for child support. Hearing was held on the petition on February 3, 1966. The important changes in the circumstances of the parties, since the granting of the initial custody, were these :

1. The child is almost six years of age and is completing a year in kindergarten in Forrest City, under the custody of his father;

2. Patricia Moore Taylor is married to Maynard Holt, Jr., of Memphis. They are residing in Knoxville, Tennessee, where he is a freshman in law school. The Holts reside in a university housing area. Patricia id some^ seven months pregnant. Her husband receives $400.00 a month from his family in Memphis. His family appears financially able to continue these contributions..

3. James F. Taylor is. remarried and has a child by bis second wife. They own their home near the public schools. Taylor is in the insurance business, and his income averages approximately $550.00 a month. With respect to his residence.and income, there has been no material change, except that income from some rent property appears to be down. Also, in his property settlement with the appellant, Taylor gave her $15,000.00 in stocks, and therefore this tended to reduce his income.

Based on these changed circumstances, the chancellor awarded custody of the child to the father during the school months. He decreed that the mother have custody during summer vacation and one week during the Christmas holidays. During the mother’s custody period, it was ordered that the father pay $100.00 a month child support.

Our court has consistently been reluctant to deprive a child of tender years of the care and affection of its mother. Reynolds v. Tassin, 209 Ark. 890, 192 S. W. 2d 984 (1946). Yet the ultimate test is based on this fundamental principle so well stated in Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817 (1934):

“It is the well-settled doctrine in this State that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity.”

This same rule has been incorporated in our statutes since 1921. See Ark. Stat. Ann. § 57-106 (1947).

The preference given the mother who is morally fit. to have custody of the child does not shock the basic rule of equal dignity of each parent with respect to custody rights. When the scales are equally balanced, motherly love and affection tip the scales in favor of the mother’s custody. Therefore, because it may he said, in a restricted sense, that the law favors the mother, we have most carefully examined the record to make reasonably certain that the chancellor’s award of custody to the father for nine months each year was correct.

In the decree, the chancellor mentioned the remarriage of each of the parties and their respective residences. He also mentioned the bitter feeling between the father and mother. The arguments between them, and between Mr. Holt and Mr. Taylor — all of whieh occurred over visitation rights, with the child are detailed in the record. The chancellor evidently perceived that these difficulties would affect the personality of the child and his attitude toward his parents. The chancellor also had this evidence before him:

1. Appellee, Taylor, was permanently established, both in home and in business in Forrest City;

2. Mrs. Adine Moore, maternal grandmother of the boy, is a lifelong and highly respected resident of Forrest City. The child spends much time with her. Mr. Taylor and Mrs. Moore are apparently not on unfriendly terms ;

3. Mrs. Burk Mann, great-aunt of Taylor, helped rear Taylor. She is a close neighbor of Mrs. Moore and the child spends considerable time with Mrs. Mann;

4. The mother, appellant here, is residing in Knoxville, Tennessee. Her residence would be appropriately described as temporary, since her husband is a student. According to Holt’s plans, the family would be transferring from Knoxville to Memphis in late 1967. This would mean a transfer of the child from the Knoxville school and to acquaintances in another environment;

5. In Forrest City, the child would enter public school with some of his kindergarten and neighborhood playmates, whereas in Knoxville he would be among strangers except for his mother and her husband. To a large extent, this experience would shortly be repeated in Memphis.

For a court to choose, in a custody case, between the mother and father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value. As was stated in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958): ‘fWe know of no type of case wherein the personal observations of the court mean more than in a child custody case.” The chancellor’s experiences with these parents began in late 1962. In the succeeding years he entered at least ten orders touching on matters of divorce, child custody, and support money. These experiences afforded the chancellor opportunities to reach wise conclusions respecting the moral fiber of these parents. We are certainly justified in assuming that the chancellor’s knowledge which he gained from the initial divorce proceedings, together with his four years’ experience with these people, supports his conclusions with respect to custody. In cases of this nature, particular weight is given to the findings of the chancellor, Cheek v. Cheek, 232 Ark. 1, 334 S. W. 2d 669 (1960).

The chancellor specifically expressed his continued interest in the welfare of this child in a statement near the conclusion of his decree. There, he was careful to point out that the custody arrangement would “be in effect in each year in the future until and unless a modification of the order be made by this court which retains jurisdiction for such further orders as may be deemed necessary for the best interest of the child.”

The prayer of appellee for dismissal of this appeal for failure to abstract the pleadings and testimony is denied. See Rule 9 (e).

Affirmed.