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

text:
    Harry WOOD v. John W. GOODSON, Circuit Judge
    5732
    485 S.W. 2d 213
    Opinion delivered October 9, 1972

      Arnold ir Arnold, by: G. William Lavender, for petitioner.

      Ray Thornton, Atty. Gen., by: Fred Harrison, Asst. Atty. Gen., for respondent.
   Conley Byrd, Justice.

Petitioner Harry Wood, editor of the Texarkana Gazette was ordered by the respondent John W. Goodson, Miller County Circuit Judge, not to publish in the morning edition of the newspaper, published on February 17, 1972, the result of the jury verdict in the case of State of Arkansas v. Eugene Edward Sumler. As a result of the publication of the article in the morning edition of February I7th, the respondent on March 2, 1972, cited petitioner to appear and show cause on March 7, 1972, why he and the Texarkana Gazette should not be held in contempt. The citation order was served on petitioner in the State of Texas. On March 7, 1972, petitioner appeared by his counsel, but not in person, and filed motions objecting to jurisdiction of his person and the power of the court to issue the order prohibiting the publication. When petitioner appeared in person on March 8th, the respondent found petitioner in contempt of court for failure to appear in person on March 7 th and also in contempt for publishing the result of the jury verdict contrary to the order of the court. The fine for publishing the result of the jury verdict was set at $250 and a jail term of 60 days, both of which were suspended. However, the fine of $100 and court costs assessed for failing to appear have not been suspended.

The facts, giving rise to the order not to publish the result of the jury verdict, were recited by the respondent in the citation order as follows:

“On the 14th day of February 1972 the Circuit Court of Miller County, Arkansas began a trial session of criminal matters. Informations filed by the Prosecuting Attorneys’ office charged Eugene Edward Sumler, Nathaniel Keel, Miller Lee Paxton and Robert L. Burton, Numbers 10,703; 10,709; 10,710 and 10,711 respectively with the crime of rape in the first degree. Alleging the Defendants, on the 2nd day of December, 1971, raped Cindy Ann Hayes, 13 years of age and Shellye Houston, 11 years of age as reflected in the informations. At Pre-Trial, January 31, 1972, the Prosecuting Attorney moved for the consolidation of the cases for trial. Attorneys for Eugene Edward Sumler objected, demanding a separate trial. The request of the Defendant under Arkansas law was mandatory, the Court having no discretion wherein a capital case is alleged.
“The remaining three cases were consolidated without objection. Prior to the beginning of the Court Session, a Petition was filed seeking commitment of Robert L. Burton, No. 10,711 to the Arkansas State Hospital for Nervous Diseases for thirty days observation; said Petition was granted.
“On February 15th, Cause No. 10,703, State of Arkansas versus Eugene Edward Sumler began. Following the empanelment of a Jury, the remainder of the Jury panel was excluded from the Courtroom. The Sumler case was submitted to the Jury for deliberation shortly before noon on February 16, 1972. The remaining Jury panel and additional prospective jurors whose names had been drawn from the jury wheel reported, were qualified, and a Jury was selected in Cause No. 10,709 and No. 10,710, Nathaniel Keel and Miller Paxton respectively. During the course of the trial of cause No. 10,709 and No. 10,710 the Bailiff announced that the Sumler Jury was ready to report. The Sumler Jury was detained in the Jury room until the Paxton-Keel Jury could be removed from the Courtroom across the hall to the Judges Chambers. Following the reporting of the Sumler Jury and their discharge, the Paxton-Keel Jury was returned to the Courtroom and the reception of evidence was resumed. At the close of the normal work day, it being obvious that the Paxton trial could not be concluded, the Court admonished the Jury not to discuss the case among themselves, or to permit the matter to be discussed in their presence, not to read or hear any account of the case and that they were discharged until 9:00 the following morning.
“Mr. Tom Ayres, a reporter for the Texarkana Gazette, had been in attendance in the Courtroom throughout the trial. Following the departure of the Paxton Jury, the Court requested of Mr. Ayres that the Texarkana Gazette not publish the findings of the Sumler Jury in the next morning’s edition, (February 17th), that even though the Paxton Jury had been admonished, that inadvertently some unthinking person could blurt out the findings of the Sumler Jury in the presence of a member of the Paxton Jury. That it was the Court’s desire that the Paxton Jury determine guilt or innocence on the evidence and the law presented in the Paxton case and not on what some other jury may have or have not done in a companion case. The Court further stated:
‘As far as the Court is concerned, even though the Sumler Jury had returned their verdict in open Court, I do not consider it a public record.’
“I further requested that the verdict in the Sumler case be delayed from publication in order that the pending trial would be fair and impartial. The Court then departed for the day.
“The Court was contacted later that evening at home by telephone by an individual who identified himself as Harry Woods, Executive Editor of the Texarkana Gazette and explained that his reporter, Tom Ayres, had relayed the request of the Court not to publish the Sumler verdict in the morning edition (February 17th). I acknowledged that to be true and explained my purpose was not to muzzle the paper, but was a request to insure a fair and impartial trial for the case then pending. After a conversation between Mr. Woods and the Court pertaining to The Arkansas Bar’s recommendation to the Arkansas Supreme Court, and the opposition of the Arkansas Press Association to the proposed rules regulating criminal matters, Mr. Woods stated that if he agreed to the Court’s request on this occasion, that he did not know what he may be requested to do in the future. The Court again advised that his sole interest was to insure that the Defendant in the pending trial be afforded a fair and impartial trial. That the Jury had been admonished not to discuss the case among themselves, or with anyone else, nor to permit anyone to discuss the matter in their presence, nor to read or to listen to any news accounts, but that the Court was fearful that inadvertently someone would blurt out the verdict of the Sumler Jury in the presence of a Juryman of the second trial. Mr. Woods advised the Court that the Court had the authority to lock up’ the Jury for the night. The Court advised Mr. Woods that he was aware of the powers of the Court. That the Court believes in freedom of the press; that the Court request was limited to the Jury findings not being published in the morning paper, (February 17th). That the matter could be printed after the Jury had returned at 9:00 o’clock the next day, (February 17th). Mr. Woods advised the Court he would not accede to the Court’s request. Whereupon the Court withdrew the request and ordered that the verdict of the Sumler Jury not be published in the morning’s edition, (February 17th). That the matter could be published in the afternoon paper, or in any later edition. Mr. Woods related that the verdict would be published.
“The Texarkana Gazette on February 17th, the following morning, prior to the resumption of trial in the Paxton case, published an article upon its front page in a most conspicuous place, a news story concerning the Sumler verdict and the Court’s order. The Article continued on the second page, . . . The article was published not only in violation of the Court’s order pertaining to the Sumler verdict, but was published in such a manner as to magnify the findings of the Sumler Jury, the Court’s request and subsequent order.”

Petitioner contends, among other things, that the order not to publish the trial verdict is void and that as a result thereof, the second contempt for failure to appear in person to the citation order would also be subject to collateral attack. Respondent on the other hand argues that since both the fine and jail sentence for the contempt of publishing the verdict were suspended we are prevented from reviewing that part of the contempt. In doing so respondent relies upon Stewart v. State, 221 Ark. 496, 254 S.W. 2d 55 (1967), and Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1953).

If the trial court had suspended all of the costs and fines, we would be inclined to agree that petitioner was entitled to no review on the basis that he could not obtain any relief that he did not already have. However, since the $100 fine and court cost are assessed for his failure to appear in person, we find it necessary to discuss each contempt issue.

Every court that has had an occasion to rule upon the freedom of the press to publish court proceedings, has held that whatever transpires in the court room is public property and those who see and hear it may report it without judicial censorship. See State v. Morrow, 57 Ohio App. 30, 11 N.E. 2d 273 (1937); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P. 2d 594 (1966); State ex rel Superior Court of Snohomish Co. v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), and U.S.A. v. L. Dickinson and G. Adams, (5th Cir. 1972) 465 F. 2d 496. The reason for such holdings is stated in the Phoenix Newspaper case as follows:

‘‘The restraint imposed by the trial court in this case strikes at the very foundation of freedom of the press by subjecting it to censorship by the judiciary.
“ ‘A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. # * Those who see and hear what transpired can report it with impunity. There is no special prerequisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.’ Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546.
“Courts are public institutions. The manner in which justice is administered does not have any private aspects. To permit a hearing held in open court to be kept secret, ...would take from the public its right to be informed of a proceeding to which it is an interested party.
“ ‘One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system, of criminal justice is fair and right.’ State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562.”

In State ex rel Liversey v. Judge Civil District Court, 34 La. Ann. 741 (1882), it is pointed out that there are many human rights — such as religious liberty and right of assembly and of petition — that are entirely beyond the control of judicial power. What power then does a court have to do that which the Constitution withholds and which no law could confer?

Our own Constitution, Art. 2 § 6 provides:

“The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, ...”

The Phoenix Newspaper; the Sperry, and the Morrow cases, supra, all hold that such orders are void and beyond the power of the courts. To the same effect see McHenry v. State, 91 Miss. 562, 44 So. 831 (1907). The same result is reached in State ex rel Liversey v. Judge Civil District Court, supra. As stated in McHenry v. State, supra, a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void and may be collaterally impeached. Arkansas follows the same rule. See Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924).

As we view the judgment, finding petitioner in contempt for publishing the trial verdict, it falls into the same category as the order entered in Martin v. State, supra. There we held that a Circuit Court Judge did not have the power to commit an accused to the penitentiary before conviction and that the prison superintendent could not be held in contempt for failure to comply with such a void order. No court, as we have indicated, has the power to prohibit the news media from publishing that which transpires in open court. Consequently it follows that the order not to publish was void and also subject to collateral attack. See also, Herr v. Humphrey, 277 Ky. 421, 126 S.W. 2d 809, 121 A.L.R. 954 (1939), and Ex Parte Speakman, 32 Ariz. 307, 257 P. 986, 56 A.L.R. 169 (1927).

In U.S. v. L. Dickinson, supra, the federal court, while not exactly relieving Dickinson of the contempt fine, ruled that the order prohibiting the publication was unconstitutional and remanded the matter to the trial court to reconsider in the light of the appellate decree. Thus leaving little doubt that the result should be the same as that involved in a collateral attack.

Furthermore, the general rule is that before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. See Berry v. Midtown Service Corp., (C.C.A. 2, 1939), 104 Fed. 2d 107, 122 A.L.R. 1341. The citation order cited both petitioner and the Texarkana Gazette, a corporate entity, to appear. The terms of the order were identical to both petitioner and the corporate entity and of .course the latter could only appear by representative. We hold that under the circumstances and the legal issues involved, petitioner’s appearance by counsel, was all that the order required. For this reason the $100 fine and costs were wrongfully assessed.

The rule, that constitutional issues will not be determined unless their determination is essential to a disposition of the controversy, like all other judge-made rules admits of certain exceptions. One of those exceptions is where the settlement of the controversy involves a matter of public importance. See People v. Kennedy, 207 N.Y. 533, 101 N.E. 442; Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911); and 16 Am. Jur. 2d Constitutional Law § 113.

Petition granted. Contempt judgments vacated.

Harris, C.J. and Fogleman, J., concur.

Carleton Harris, Chief Justice,

concurring. While I agree with the concurring opinion written by a fellow Judge to the effect that this case can be disposed of without passing on the constitutional question involved, I am very much of the view that this court is acting correctly and properly in disposing of that constitutional issue. It is true that we have said that we will not pass upon constitutional questions unless necessary to the determination of the case, but, like most other legal doctrines, there are exceptions to the rule. An exception is where the question is one of great public importance. As pointed out by the Wisconsin Supreme Court in the case of Borgnis v. Falk Company, 147 Wis. 327, special circumstances can make it the duty of a court to pass upon constitutional questions even where a decision on that question is not essential to the disposition of the case before it. In Falk the question was the validity of a statute concerning workmen's compensation. The court said:

“It seems to be true that this action might very well be disposed of without considering the question of the validity of the act in question. Ordinarily under such circumstances that course would be the proper one to pursue, for the question of the constitutionality of a statute passed by thé legislature is not one to be lightly taken up, and generally such a question will not be decided unless it be necessary to decide it in order to dispose of the case. There are circumstances here present, however, which seem to call very loudly for immediate consideration of the question of the validity of the act in question, if under any view of the case it can he considered as involved. [My emphasis] ***
A considerable number of employers have accepted the terms of the act, but unquestionably many are waiting until the question of the constitutionality of the act be authoritatively settled by this court. **** Such a condition of uncertainty ought not to be allowed to exist if it can be removed. [My emphasis] This court cannot properly decide questions which are not legitimately involved in bona fide lawsuits, but it may properly decide all questions which are so involved, even though it be not absolutely essential to the result that all should be decided.”

The above language which I have italicized expresses my view of the question now before us. For the last several years, there has been prolonged discussion by bench and bar and the news media relative to “fair trial and free press”. Courts in some other jurisdictions have promulgated rules establishing just how far a court can go in preventing publication of newsworthy facts which it feels might be detrimental to the right of a fair trial of some defendant. This court was asked to promulgate certain rules in this field, but declined to do so. The constitutional question that has arisen in the instant litigation can, and probably will, arise again unless the issue is laid to rest. I see absolutely no point in by-passing this main question, and withholding a decision until another day, and I accordingly wholeheartedly join in the majority opinion.

John A. Fogleman, Justice,

concurring. At the threshold of every case there is an important barrier that must be surmounted before any action by any court is warranted or permissible. That is the question of the court’s jurisdiction both of the subject matter and of the persons of the parties. I feel compelled to register my protest because the majority has ignored this barrier and has neither climed or hurdled it. But it has not gone away. The very first pleading filed by petitioner was a special appearance asserting that the extraterritorial service of the citation for contempt did not confer jurisdiction upon the circuit court and asking that the service be quashed. The circuit judge denied petitioner’s motion to quash this service before any other pleading was filed or even mentioned. It was only then that petitioner filed a motion for disqualification of the circuit judge, subject to his special appearance to contest jurisdiction. Only after this petition had been overruled did the pleading upon which this court chooses to act ever enter into the matter. This was petitioner’s demurrer to the citation, also specifically made subject to the special appearance to contest jurisdiction. It was a general demurrer which was promptly overruled. Immediately following the overruling of the demurrer, a response, subject to the special appearance to contest jurisdiction was filed, which squarely raised the constitutional question treated in the majority opinion, after which the court continued the hearing until petitioner, who had thus far appeared only by his attorneys, was physically present, and ordered the immediate issuance of a body attachment for petitioner.

The question of the validity of the service of the citation on petitioner is just as important to the jurisprudence of this state and its administration of justice as the question treated in the opinion. In my opinion, there was nothing to be decided in the trial court until this issue was properly disposed of, and there is nothing before this court until the threshold question of jurisdiction has been determined. The special appearance was strictly limited to the question whether the service of the citation was sufficient to permit the court to act in the case. The other questions were presented subject to that appearance and the consequent jurisdictional question and properly so. I cannot believe that the majority, by circumvention, is implying that this service is valid. If so, I disagree. If not, then I submit that the majority opinion is an advisory one, is dictum, and of no binding effect, for want of jurisdiction, for if the trial court had no jurisdiction we have none, and nothing should be done except quash the service and the order punishing petitioner and dismiss him from further answer.

First, we cannot overlook the fact that criminal, not civil, contempt is involved. A criminal contempt proceeding is one brought to preserve the power and dignity of the court, while a civil contempt proceeding is one instituted to preserve and enforce rights of private parties to a suit and to compel obedience to orders and decrees made for the benefit of such parties. Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977. It is commonly held that, in a proceeding for criminal contempt, the contemnor is entitled to all the safeguards surrounding criminal prosecutions. De-Parcq v. United States District Court for Southern District, 235 F. 2d 692 (8th Cir. 1956). See also, Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911); Michaelson v. United States, 266 U.S. 42, 45 S. Ct. 18, 35 A.L.R. 451, 69 L. Ed. 162 (1924); Parker v. United States, 153 F. 2d 66, 163 A.L.R. 379 (1st Cir. 1946); Wakefield v. Housel, 288 F. 712 (8th Cir. 1923); In re Nevitt, 117 F. 448 (10th Cir. 1902); Swanson v. Swanson, 10 N.J. Super. 513, 77 A. 2d 477 (1950), aff’d 8 N.J. 169, 84 A. 2d 450 (1951). We have clearly recognized and applied these principles when we held that proof of guilt of a charged criminal contempt must be beyond a reasonable doubt. Blackard v. State, supra.

In holding that prosecutions for criminal contempts are subject to constitutional guaranties of jury trial, the United States Supreme Court, in Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), had this to say:

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
“These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Gompers v. United States, 233 US 604, 610, 58 L. Ed. 2d 1115, 1120, 34 S Ct 693 (1914).
Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical— protection of the institutions of our government and enforcement of their mandates.

Because of the close analogy to a criminal proceeding, the process by which a criminal contempt proceeding is initiated must be served within the state in which the proceeding is commenced in order to clothe that court with jurisdiction to decide the charge of contempt. Swanson v. Swanson, supra; Brown v. Brown, 96 N.J. Eq. 428, 126 A. 36 (1924); In re Lavin, 59 Idaho 197, 81 P. 2d 727 (1938).

We have clearly recognized the necessity for personal service in criminal contempt proceedings. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W. 2d 538, the petitioners sought review of their punishment for contempt for wilfully violating previous injunctive orders of a chancery court. See Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W. 2d 410. This is criminal contempt. See Ark. Stat. Ann. § 34-901 (Repl. 1962). In Hudkins, we stated that since Ritholz, one of the parties who was enjoined in the original proceedings, was in a foreign jurisdiction he could not be reached for punishment. Later in Ritholz v. Dodge, 210 Ark. 404, 196 S.W. 2d 479, we repeated the proposition that the Arkansas court was powerless to compel the physical presence of an alleged contemnor for punishment, even though the court, by service on the manager of the store owned and operated by the nonresident partners in violation of the court’s orders, did have jurisdiction to subject the property of the nonresidents used in violation of the court’s injunction to the satisfaction of a fine imposed for the violation.

I would quash the order punishing petitioner for contempt for failure to appear upon the citation because of the invalidity of the service.

The other phase of the case should be simply disposed of. We have held that where it does not appear from the record that the suspension is a mere postponement of sentence, the suspension operates as a complete remission in cases of criminal contempt. Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605; Stewart v. State, 221 Ark. 496, 254 S.W. 2d 55. Actually, the principal reason given in Stewart for declaring that such a suspension as was made here amounted to complete remission was the lack of authority for an indefinite suspension in contempt cases. In Johnson we said that there was no basis for appellate relief in such a case. In Turpy v. State, 234 Ark. 821, 354 S.W. 2d 728, we quashed a suspended sentence in a contempt proceeding because it amounted to a complete remission. We should do the same here.

If, then, the order fixing petitioner’s punishment for failure to appear in response to the citation should be quashed because the court had no jurisdiction over the person of petitioner, as I feel sure the majority would agree, and if the suspended punishment is a complete remission of the contempt charge based on the publication of the jury verdict so that it could be quashed, I am unable to conceive of any reason for the eagerness of the court to go wading in the constitutional quagmire which has arisen on the question of appropriate balance between the equally cherished constitutional guaranties of free press and fair trial, as it has. I can only repeat my dissent in Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217, wherein I pointed out that: this court said for more than 75 years that courts do not and should not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided; decisions of the court on constitutional questions under such circumstances are pure dictum; when an appeal can be disposed of without determining the constitutional question it is our duty to do so; constitutional questions are never decided unless necessary because the case cannot be disposed of on any other ground. On the same date as we handed down our opinion in Grimmett this court, in Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W. 2d 211, said:

We do not reach the constitutional arguments here made because the trial court after lapse of the October 1970 term of court had no jurisdiction to amend the judgment to grant any additional relief. In St. Louis & N. A. Rd. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752 (1910), we pointed out that there is no authority after term time for a trial court, under the guise of an amendment, to revise a judgment to adjudicate a matter which might have been considered at the time of the trial or to grant an additional relief not in contemplation of the court at the time the judgment was entered. This in accord with our long standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case, Martin v. State, 79 Ark. 236, 96 S.W. 372 (1906), and Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837 (1971).

See also, Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472, and Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369. Our language in those cases was positive and unequivocal, admitting of no exceptions. I had thought that Grimmett might be an aberration that would not be indicative of the future course of this court. I had not the slightest idea that it indicated an overruling of what this court has called an unvarying rule.

A reading of the opinions in Grimmett might lead to the conclusion that the real difference between the majority and the dissenters lay in the basic premise of the dissenting opinion, i.e., that there had been no evidence of a law violation by Grimmett. If there was, the constitutional question was properly approached. If not, it was not. The apparent departure could easily be explained in this way, and seems more plausible than the notion that the court did not intend to abide by its wholesome rule.

I submit that our long standing rule is appropriate and that deviations from it presage nothing except additional burdens and additional troubles to plague the judiciary and the judicial system. If all courts had exercised appropriate judicial restraint and not gleefully seized upon the earliest opportunity to decide grave constitutional questions, this nation might not be enveloped in a state of constitutional flux which all too often seems to be the product of judicial opinions.

I further submit that the majority opinion is contrary to an authority upon which it relies. United States v. L. Dickinson & G. Adams, 465 F. 2d 496 (5th Cir. 1972), does not foreclose the possibility that special exigencies might justify curtailment of publication of court proceedings in extraordinary circumstances constituting an immediate danger to the administration of justice. There the court only considered a blanket ban on publication. But more important is that court’s holding that an order of a court having both subject matter and personal jurisdiction must be obeyed even though invalid for constitutional reasons and that one may be punished for contempt of court for disobedience of a court order, regardless of the unconstitutionality of the underlying order. The Fifth Circuit Court of Appeals remanded that case for a determination whether the judgment of contempt or the punishment would still be deemed appropriate in light of the constitutional infirmities of the order.

The rule stated in Martin v. State, 162 Ark. 282, 257 S.W. 752, cited by the majority is in complete accord with the Fifth Circuit holding. This very statement in the majority opinion points up the necessity for the court to meet, not by-pass, the jurisdictional question.

I also suggest that, if the action of the trial judge in seeking to postpone publication of the jury verdict was improper, and if the court feels compelled to afford guidance to circuit courts for the handling of future problems where contamination of a trial and verdict by publication of results in related cases is probable, we could better accomplish the purpose by the exercise of our rule-making power. We have furnished no guide here, and it would really not have been appropriate to use the vehicle of this judicial opinion for establishment of guidelines for all such cases. A simple rule could guide the trial courts in their handling of jury verdicts in future cases.

I would also quash the contempt judgments, as hereinabove indicated.

       See also, concurring opinion of Mr. Justice White in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (40 USLW 5025) footnoted in the Dickinson-A dams opinion.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. James C. MARSHALL and Frances MARSHALL
    5-5989
    485 S.W. 2d 740
    Opinion Delivered October 9, 1972
    [Rehearing denied November 13, 1972.]

      Thomas B. Keys and James N. Dowell, for appellant

      Charles A. Walls, Jr., for appellees.
   Frank Holt, Justice.

Appellant instituted this eminent domain action for the acquisition of lands needed for the construction of a controlled-access highway facility. Appellant acquired 31.7 acres in fee from appellees’ 60 acre tract of land leaving them four residuals of 5 to 15 acres each. Appellees’ acreage consisted of lands which were either inside or adjacent to the city limits of Ward, Arkansas. Their lands fronted on both sides of a county road for approximately 2,000 feet. Appellees sought $42,125 as compensation for their estimated damages. The jury awarded $30,000. On appeal the appellant first contends for reversal of the judgment that the trial court erred in refusing to strike the after-the-taking value testimony of the landowners’ expert witness, Lloyd Pearce, who based his opinion upon the assumption that by the condemnation in fee the condemnor acquired the right to completely prohibit access to and from the remainder of the abutting lands of the landowners. We find this contention untenable.

In its complaint, appellant alleges that it was necessary in the taking of said lands (for a controlled-access facility as defined by Act 383 of 1953) that the “rights or easements of access and ingress and egress thereto and therefrom be condemned by order of this court and title in fee to said lands be vested” in the appellant. The prayer of the complaint is that “all existing, future and potential common law or statutory rights or easements of access or ingress and egress to, from and across the descrihed property to and from adjoining and abutting lands [be] condemned and extinguished under the power of eminent domain,” reserving to the present and future owners or occupants of abutting and adjoining lands rights of access as may be prescribed under the provisions of Act 383 of 1953; further, that just compensation be ascertained and awarded to appellees for the condemnation for the taking of their lands and all access rights The appellees propounded to the appellant interrogatories among which the inquiry was specifically made as to the extent of the taking by the appellant. In response, appellant merely replied that it was condemning the lands in fee. Any inference of an intention to reserve any rights to the landowner here, attributable to any indefinite language of the complaint and answer to the interrogatory on the subject, is eradicated by the Declaration of Taking filed contemporaneously with the complaint. In clear and definite language, the appellant declared that it was completely taking all rights of access, ingress and egress to appellees’ lands. In other words, the taking was unlimited. The proof was to this effect. In fact, one of appellant’s witnesses, who is knowledgeable with respect to appellant’s driveways permit requirements testified that the landowner of abutting lands does not have any right of access to a highway, (owned in fee or easement by appellant) without first filing a request and having that request approved by the appellant and that a permit once issued could be revoked if found necessary by the appellant. Also, the judgment recites that the compensation awarded to appellees included “all rights of ingress, egress and access to the condemned lands.” We hold that the trial court correctly permitted the value witness, Pearce, to testify he took into consideration that the free simple taking of appellees’ lands is a factor which would reduce the market value of their lands because it would reasonably be expected to affect and impair the unrestricted right of the landowners’ ingress and egress to his abutting residuals. This is permissible without ascribing a monetary value to this factor. We specifically approved this method of appraisal in Arkansas State Highway Comm’n v. Wallace, 247 Ark. 157, 444 S.W. 2d 685 (1969), and adhered to our view in Arkansas State Highway Comm’n v. Wallace, 249 Ark. 303, 459 S.W. 2d 812 (1970). In the first case we pointed out that under the terms of Ark. Stat. Ann. § 76-532 (Repl. 1957), the landowner’s “unfettered” access would be subordinate to certain uses made of right-of-way taken in fee simple, and that the nature of the owner’s access might be substantially impaired: that under § 76-548 (RepL 1957) the owner from whom the property was taken in fee simple had no right of reversion and might find the right-of-way abandoned and sold to another owner; and that the “predominate” control of all lands within the right-of-way was in the Arkansas State Highway Commission. In the second case, we held that the lessened accessibility from one side to another of the severed property was a compensable element of damages and adhered to our holding in. the first case. Again, we reiterate that the taking in fee, as in the case at bar, subordinates all rights of the landowner to the predominate control of all the lands within the right-of-way acquired by the appellant.

The mere fact that a fee simple title to lands is taken does not necessarily constitute a taking of the abutting owners’ rights. We have previously recognized that a right of the abutting owner to access, ingress and egress is an easement which exists as fully when the fee title to lands is in the public as when it is in private ownership. Arkansas State Highway Comm’n v. Kesner, 239 Ark. 270, 388 S.W. 2d 905 (1965). There we further recognized that the right of access is a property right for “which the owner cannot be deprived without just compensation.” See, also, 2A Nichols on Eminent Domain, Third Edition, 243 § 6.4442. In the case at bar, appellees’ lands and access rights to his abutting lands were taken in fee by the appellant to construct a controlled-access highway facility as defined by Ark. Stat. Ann. § 76-2202 (Act 383 of 1953):

“A controlled-access facility is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement, or only a controlled right of easement of access, light, air or view, by reason of the fact that their property abuts upon such controlled-access facility or for any other reason.***”

The rights of the abutting owners are inevitably affected in a material manner, not by the taking in fee simple alone, but the fact that the act authorizing the construction of a controlled-access facility provides for the impairment. Ark. Stat. Ann. § 76-2204 (Repl. 1957) provides:

“***No person shall have any right of ingress or egress to, from or across controlled-access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time.”

From what we have said, it follows that we cannot agree with appellant’s additional argument that we should reconsider our previous decisions on the question of compensation for impaired access which was established many years ago in Arkansas State Highway Comm’n v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960).

Appellant, also, asserts as error that the trial court refused to strike the value testimony of the landowners’ expert witness, D.P. “Bud” Young. Appellant makes the argument that this witness’ testimony was based upon an improper standard, mainly the unwillingness of the landowner to sell. We agree with appellant that in a condemnation action the market value is the price which could be agreed upon at a voluntary sale by an owner willing to sell and a purchaser willing to buy. Arkansas State Highway Comm’n v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874 (1970). On cross-examination Young expressed the view that in a condemnation suit the owner is not a willing seller. He acknowledged that to some extent he took that into consideration. However, he, also, testified that because a landowner had to sell in a condemnation suit, it made no difference in “his figures” ascribed to the market value of appellees’ lands. Even if it be said that this equivocal part of Young’s testimony relating to a reluctant seller is prejudicial, it was rendered harmless by the court instructing the jury that “[Y]ou are instructed that the fact that the landowner is unwilling to sell his land has no effect upon the market value of the land.” In the circumstances, any inconsistency in Young’s testimony would be proper argument to the jury and would only affect the credibility of this witness. Arkansas State Highway Comm’n v. Pruitt, 249 Ark. 682, 460 S.W. 2d 316 (1971). In the case at bar, the witness demonstrated a familiarity with appellees’ property and comparable sales of lands in the surrounding area.

Neither can we agree with appellant’s assertion that the trial court erred in refusing to allow two of its expert value witnesses to testify as to the sales of property at other interchanges in ascertaining the value of the appellees’ property after the taking. An interchange facility was constructed on a portion of the property acquired from the appellees. Appellant’s two witnesses sought to testify that construction of an interchange facility is .beneficial and increases the value of appellees’ residual property. We deem it unnecessary to discuss this alleged error other than to observe that the proffered testimony as to comparable sales related to lands at interchanges on interstate facilities. In the case at bar, the interchange is constructed upon a controlled-access highway facility and not interstate. We think this is a significant distinction. Therefore, one of the required factors in showing the similarity or reasonable resemblance of two tracts is lacking, namely, location. Arkansas State Highway Comm’n v. Witkowski, 236 Ark. 66, 364 S.W. 2d 309 (1963), and Arkansas State Highway Comm’n v. Roberts, 250 Ark. 80, 464 S.W. 2d 57 (1971).

Appellant, also, asserts that the court erred in modifying one of its instructions and giving two of the landowners’ instructions. The brief argument is made that the instructions as given are confusing and misleading. We observe that the instruction defining a fee simple title is not to be recommended in an eminent domain case. However, suffice it to say that after reviewing these instructions along with all instructions given by the court we cannot agree with appellant’s argument that the instructions had a confusing and misleading effect upon the jury.

Appellant, also, urges for reversal that the court refused to enter a judgment in accordance with the court’s ruling that by taking the lands condemned in fee, the appellant acquired the right to eliminate all access without further compensation. We find no merit in this contention. As previously indicated, the pleadings, the evidence, and the judgment reflect that the appellees’ lands and all access rights were taken in fee for which just compensation was awarded to them.

The appellant contends that the verdict is not supported by substantial evidence and is excessive. Appellant’s argument appears to be predicated upon the premise that the landowner and their witnesses erroneously based their estimated just compensation upon a complete denial of access to appellees’ abutting lands. Since we hold that the taking in fee included acquisition of access rights to the abutting lands, it necessarily follows that we find no merit in the assertion that the verdict is based on insubstantial evidence or is excessive.

Affirmed.


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    HOME INSURANCE COMPANY v. Guy H. JONES
    5-6016
    485 S.W. 2d 190
    Opinion delivered October 9, 1972

      Griffin Smith, for appellant.

      William Clay Brazil, William M. Clark, George F. Hartje Jr., Robert W. Henry, Guy Jones Jr. and Phil Stratton, for appellee.
   Frank Holt, Justice.

This appeal results from a judgment approving appellee’s statutory motion for a judgment and the enforcement of an attorney’s lien. On December 12, 1968, William E. Williams was injured in an automobile collision. A few days later it appears that Williams retained the appellee as his attorney and signed a contract providing for a contingent fee of 50%. On November 21, 1969, the appellee filed suit on behalf of Williams and his wife to recover certain alleged damages. Summons was duly issued. On November 24,1969, without appellee’s consent or knowledge, a compromise settlement was effected between Williams and his wife with the appellant which had the insurance coverage on the defendants. The next day the appellant filed a petition in the U. S. District Court requesting determination of its liability to the appellee. The next day the appellee filed in the local state court, where the tort action was pending, a statutory motion for a judgment and the enforcement of his asserted attorney’s lien upon the settlement. The Federal Court conducted a hearing and referred the issue to the state court. After reviewing the record of the proceedings in the Federal Court, the trial court found that appellee was entitled to an attorney’s lien upon the proceeds of the settlement inasmuch as a “lien attáches at the filing of an action.” The trial court rendered a judgment against Williams and the appellant in the sum of $17,312.49, which represented 50% of the amount of the settlement. From that judgment appellant brings this appeal.

For reversal appellant first asserts an attorney’s lien does not attach until after the summons issued on a complaint is actually placed in the hands of the sheriff of a proper county. Appellee, however, contends that his attorney’s lien attached when the suit was filed. It is undisputed that the settlement occurred before the summons was placed in the hands of the sheriff. Therefore, the narrow question is presented as to when an attorney’s lien, attaches in a case where a settlement by the parties litigant to the action occurs without the consent of the attorney.

We must agree with appellant that appellee’s asserted lien had not attached at the time of the unauthorized settlement. In reaching this determination, we are not unmindful of appellee’s argument that the attorney’s lien “statute is remedial and subject to liberal construction.” Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W. 2d 299 (1967), Slayton v. Russ, 205 Ark. 474, 169 S.W. 2d 571 (1943). However, “even a liberal interpretation must be consistent with the basic intent of the statute.” Whetstone v. Daniel, 217 Ark. 899, 233 S.W. 2d 625 (1950). Ark. Stat. Ann. § 25-301 (1962 Repl.) provides two methods by which an attorney’s lien attaches. First, it attaches “from and after service upon the adverse party of a written notice signed by the client and by the attorney **** said notice to be served by registered mail.” About two months before the unauthorized settlement, in the case at bar, the appellee informed the appellant by phone that he was representing Williams. A letter to that effect was requested by appellant. Appellee admits that he never gave any type of a written notice to appellant. Therefore, we do not consider Metropolitan Life Ins. Co. v. Roberts, supra, applicable to this situation. The requirement made by our legislature with respect to a written notice is commented upon in Whetstone v. McDaniel, supra, where we said:

“*###that notice [written] is a necessary element in the legislative scheme. It gives the recipient unmistakeable warning that the attorney is insisting upon his lien and that any subsequent compromise will involve liability for the attorney’s compensation.”

No case is cited to us that oral notice constitutes substantial compliance with the legislative intent.

Second, our statute, § 25-301, provides that when the required written notice has not been given to the adverse parties that the lien attaches “from and after the commencement of an action.” In order to determine the legislative intent as to when an action commences, we must resort to a definition of those words. This is found in Ark. Stat. Ann. § 27-301 (1962 Repl.). There, by a 1962 amendment, the legislature now requires that before an action is commenced the summons must be placed in the hands of the sheriff. It is undisputed that the summons was not in the hands of the sheriff until a few days following the date of the settlement. The appellant and the appellee both rely upon Union Sawmill Co. v. Pace, Campbell & Davis, 163 Ark. 598, 260 S.W. 428 (1924). There we were asked to ascertain the legislative intent in using the words “commencement of an action” in our attorney’s lien statute. In doing so we referred to the statute, similar to our present statute, § 27-301, except for the 1961 amendment, provided that a civil action was commenced upon the filing of a complaint and issuance of a summons. There we said:

“We think there can be no doubt that the legislature, in die enactment of § 628 of Crawford & Moses’ Digest [Ark. Stat. Ann. § 25-301 (1962 Repl.)] used the'particular language, ‘from the commencement of an action or special proceeding’ in the sense defined by § 1049, Crawford & Moses’ Digest [Ark. Stat. Ann. § 27-301 (1962 Repl.)] as interpreted in the cases cited above.”
“Section 1049 of Crawford & Moses Digest [Ark. Stat. Ann. § 27-301 (1962 Repl.)] is broad and applies without exception to all kinds of civil cases.”

Likewise, in the case at bar, we hold that in construing the legislative intent with respect to these same words “commencement of an action,” in our present attorney’s lien statute, we must again refer to the latest expression of our legislature as to when an action commences. As previously indicated, in 1961 the legislature amended § 27-301 to require that summons be “placed in the hands, of the sheriff of the proper county or counties.” Therefore, we hold that when an attorney fails to give the required written notice to the adverse party a lien does not attach until the summons, issued on the complaint, is placed in the hands of the proper sheriff.

Nor can we agree with appellee’s argument that an attorney’s lien attaches upon filing an action. Appellee relies upon the second paragraph of our lien statute, § 25-301.

“And in case a compromise or settlement is made by the parties litigant to the action **** or if made after suit is filed upon said action and such compromise or settlement be made without the consent of such attorney, **** the court of proper jurisdiction shall, upon modem, enter judgment for a reasonable fee or compensation ***.”

In our view the first paragraph of § 25-301 relates to the two methods by which an attorney’s lien is actually created. The second paragraph merely provides the procedure for the enforcement of attorney’s lien once it comes into existence.

In view of our construction of the pertinent statutes, it becomes unnecessary for us to discuss appellant’s other contention for reversal that estoppel prevents the appellee from asserting his attorney’s lien. Since neither of the defined statutory warnings was given by appellee, the judgment as to the appellant is reversed and dismissed. Inasmuch as Williams does not appeal, the judgment remains in effect as to him.

Accordingly, the judgment is reversed and dismissed.