author: Sam Robinson, Associate Justice.

text:
    Garrett v. Faubus, Governor.
    5-1824
    Concurring opinion delivered April 27, 1959.
   Sam Robinson, Associate Justice.

I concur for the purpose of setting out in detail the reasons for my conviction that Act No. 4 of the Extraordinary Session of the General Assembly for the State of Arkansas for 1957 violates neither the Constitution of Arkansas nor the Constitution of the United States.

The first question is whether Act No. 4 violates Article 14 of the Constitution of Arkansas of 1874, copied from the Constitution of 1868, providing that the State must maintain free public schools. Does this provision of the Constitution mean that in any and all circumstances free public schools must be maintained? Does this provision of the Constitution mean that the State of Arkansas must maintain integrated schools? We know from the history of the times and particularly of the year 1874, when the present Constitution of Arkansas was adopted, that it was not the intention of the people to compel he State to support integrated schools. The meaning of constitution guaranties never varies. Village of Euclid, Ohio v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct. 114.

No one will deny that prior to 1874 there had been no integration of the races, in schools or otherwise, in the State of Arkansas. As shedding some light on the subject, the Arkansas Constitutional Convention of 1868, although composed to a large extent of people unfriendly to the customs and traditions of the people of this State, went on record as being opposed to any amalgamation of the races. Notwithstanding that those who appear to have been in control of the 1868 Constitutional Convention, as shown by the debates and proceedings of the Convention, were lately from Ohio, Canada, New Jersey, Iowa, Pennsylvania, Indiana, New York, Illinois, Scotland, the District of Columbia, England, and other states, and even though there was warm discussion in the Convention as to whether the Constitution of 1868 should contain a provision prohibiting marriages between races, there is no indication whatever that any member of the Convention thought there should be integrated public schools.

The Convention, on February 5, 1868, adopted a resolution as follows: “RESOLVED: That this Convention is utterly opposed to all amalgamation between the white and .colored races, whether the same is legitimate or illegitimate. We would, therefore, recommend that the next General Assembly enact such laws as may effectually govern the same. ’ ’ By amalgamation the resolution has some meaning other than intermarriage between the races, because ther.e was. already in force and effect, and had been since February, 1838, a statute which is still in force and effect and which provides: “All marriages of white persons with Negroes or niullatoes are declared to be illegal and void.” Rev. Stat., Ch. 94, § 4.

In 1895, in the case of Dodson v. State, 61 Ark. 57, 31 S. W. 977, the validity of the intermarriage statute was challenged on the ground that it had been repealed by implication by the Constitutions of 1864, 1868 and 1874 and the Fourteenth Amendment to the Constitution of the United States. The contention of unconstitutionality of the statute was based on the equal rights and privileges of citizenship and that the making of contracts is one of the rights and privileges of a citizen, and that a marriage being in the eyes of the law only a civil contract, the right and privilege of entering into such contract could not be lawfully abridged. In refusing to follow this reasoning, Chief Justice Bunn, writing the opinion of the Court, said: “ It is not true that marriage is only a civil contract. It is more than that. It is a social and domestic relation, subject to the exercise of the highest governmental power of the sovereign state — the police power. . . . Nor does the continued existence of the prohibitory act depend on the rather uncertain foundation that its repeal cannot be asserted because, although in spirit repealed, yet, since this is only by implication, it must stand. The act is on a more solid foundation than that. If repealed in the way contended for, it involves a surrender by the people of one of the attributes of sovereignty. That cannot be attributed to the people, unless made by express declaration, if at all.” The validity of the statute prohibiting intermarriages by members of the Negro and White races was upheld.

Maintenance of schools by the State means something more than teaching “the three R’s”. It forces a social status on the children. The manner of the operation of public schools necessarily compels social contacts by the students. There are many extracurricular activities involving social contacts that are necessary functions of schools, such as dramatics, where the students are subject to very close social contacts, athletics, school cafeterias, dances, P.T.A. meetings, and other social activities in which the students are more or less compelled to participate.

It has always been the practice in this State to maintain separate schools for White and Negro students, and so far as we have been able to ascertain, this is the first time it has ever been contended in any state court that our Constitution compels the State to maintain integrated schools. This is the first time this Court has been called upon to say whether such construction should be placed on the Constitution. The federal courts, however, have heretofore had occasion to construe our Constitution, Article 14, and Ark. Stat. § 80-509, dealing with public schools. It was held, in Pitts v. Board of Trustees of De Witt Spec. School Dist., 84 F. Supp. 975, that our statute, § 80-509, providing for separate schools for White and Colored persons, is not contrary to Article 14 of the Constitution of Arkansas.

Not only do we have segregated public schools, but we have separate industrial schools for Negro boys and White boys, and a Negro girls’ training school, and a like school for White girls; and other public institutions in the State are segregated, such as the blind schools, the schools for the deaf, the State penitentiary and the State tuberculosis sanatariums.

Long acquiescence of policy pursued in every county in the State, and acts of the Legislature on the subject, are not without compelling force in reaching a conclusion as to the intention of the people when the Constitution was adopted. Laurel Hill Cemetery v. City & County of San Francisco, 216 U. S. 358 54 L. Ed. 515, 30 S. Ct. 301. The Constitution belongs to the people. They can do what they like with it- — -they can amend it, they can repeal it, and they can construe it. Here the Court has the rare benefit of the constitutional provision under consideration having been construed by the people. The people have a right to say what the Constitution means, and in no uncertain terms, by means of Amendment No. 44, initiated and adopted by the people in 1957, and by the 1957 resolution adopted by the people, they have clearly shown that no provision of the- Constitution of this State means that the State must maintain integrated schools. Amendment No. 44 and the Interposition Resolution of 1957 are set out in full as an appendix to this concurring opinion. Especially pertinent parts of the Amendment and the Resolution are as follows:

Amendment No. 44 provides:

“§ 1. Action by general assembly to protect states’ rights. — From and after the Adoption of this Amendment, the General Assembly of the State of Arkansas shall take appropriate action and pass laws opposing in every Constitutional manner the Un-Constitutional desegregation decisions, of May 17, 1954 and May 31, 1955 of the United States Supreme Court, . . .
U
“§ 3. Regulation of health, morals, education, marriage and good order. — The General Assembly shall enact such laws under the Police Powers reserved to the States as may be necessary to regulate health, morals, education, marriage, good order and to insure the domestic tranquility of the citizens of the State of Arkansas.
“§ 5. All parts of the Constitution of the State of Arkansas in conflict with this Amendment be, and the same are, hereby repealed.”

The Interposition Resolution provides:

“The People of Arkansas assert that the power to operate public schools in the State on a racially separate but substantially equal basis was granted by the people of Arkansas to the government of the State of Arkansas ; . . .
í Í
“The legislative executive and judicial powers of the United States as granted under the Constitution shall not be construed to extend to the regulation of the public schools of any State nor to include a prohibition to any State, in the exercise of its power, to provide by its laws for the establishment, operation and maintenance of racially separate but substantially equal public schools within such State.”

Amendment No. 44 is just as much a part of the Constitution as if it had been a part thereof from the first. I don’t see how anyone can read it and the Resolution of Interposition adopted by the people and then say that under the Constitution of Arkansas this State must provide and support integrated schools. In my opinion such construction by the Court would be judicial usurpation of unauthorized power.

The next question is whether Act No. 4 violates the Constitution of the United States or the amendments thereto. By its decision in Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686, and the other cases decided simultaneously therewith, the Supreme Court of the United States did not intend to abolish the police powers of the State. In the Brown case and others decided at that time, the Court was dealing with facts in those cases, which were entirely different from the facts presented in the case at bar. The courts may take judicial knowledge of certain things that transpired in connection with the attempt to integrate a Little Rock public school. In Rice v. Shook, 27 Ark. 137, this Court said: ‘ ‘ The Court will judicially notice that, at the date of the note, Little Rock and a large part of the State were and had been, for some considerably time previously, in possession of the forces of the United States.”

An attempt to integrate a school in Little Rock brought about intolerable conditions. When the attempt was made to integrate one school by sending nine Negro students to a White school there was such a violent reaction on the part of the people that it was deemed necessary by the President of the United States to muster into federal service the Arkansas National Guard to reinforce a division of crack first-line United States troops, fully armed, sent to Little Rock to restore and maintain order. The troops were stationed at the schools, in the buildings and on the grounds, and armed soldiers patroled the streets. The soldiers kept order for months, at a cost to the people of about $5 million.

At the end of the semester during which the Negro students were kept in the White school, in the spring of 1958, it was thought there would be another effort to integrate the schools in the fall, and in anticipation of the violence that placing the Negro students in the White school would engender, dozens of men were sworn in as Deputy United States Marshals, and also Deputy United States Marshals from other districts were sent to Little Eock, and all of them were given special training to cope with the violence that it was thought would occur when another effort was made to send Negro students to the White school. Nearly $400,000 of the people’s money was spent in getting the Special United States Marshals ready to handle the anticipated violence. It is not known whether they were to work in connection with the troops or as a separate unit.

In the meantime, the State of Arkansas was taking measures to deal with the situation and prevent bloodshed, and a special session of the Legislature passed Act No. 4, now under consideration. In order to prevent violence that would be brought about by sending the Negro children to White schools, and to prevent the use of armed troops in the school buildings and on the school grounds, the Legislature authorized the Governor to close the school affected. But, undoubtedly, the General Assembly felt that if a majority of the voters, including Negro voters (who constitute a large percentage of the total electors in Little Eock), felt that the schools should be opened, then the schools could be conducted without the use of troops and United States Marshals. Act No. 4, therefore, provides for an election to determine if the people wanted the schools opened. Such an election was held, and the vote was overwhelming in favor of keeping the schools closed.

Now, the question is whether in the existing situation Act No. 4 is valid under the police powers of the State. If the State cannot close schools under conditions we know existed in Little Eock when an attempt was made to integrate a school, then neither can the State close the schools when any other dangerous condition exists, and the police power, one of the few rights left to the States, is gone, 'perhaps forever.

The Virginia case of Harrison v. Day, 106 S. E. 2d 637, is no precedent for the case at bar. In the Virginia case it is clearly stated: “It will be observed that the stated purpose of the plan embodied in these acts is to prevent the enrollment and instruction of white and colored children in the same public schools.” Our Act No. 4 is clearly for the purpose of preventing violence and bloodshed. If there had been no violence and no bloodshed and no use of United States troops in connection with the operation of the Central High School in Little Rock, obviously Act No. 4 would never have been adopted. The assertion that the adoption of Act No. 4 was for the purpose of preventing racial integration of the schools under any circumstances is completely refuted by the fact that the University of Arkansas was integrated a long time before the decision in the Brown case. Such integration was not compelled by any court. There has been integration of other schools, such as the ones at Hoxie, Van Burén, Fayetteville, and perhaps others, but the schools were not closed by the Governor under authority of Act No. 4 because it was not necessary. There was no violence at those places. Act No. 4 grew out of the violence and use of troops and it was adopted to prevent such an occurrence in the future. If the State cannot use its police powers to prevent violence and bloodshed and when conditions are chaotic, thereby making necessary the use of United States troops and the National Guard to restore and maintain order among the people, then the State has no police power.

Without attempting to go into a long dissertation on the police power of the States and its scope, I merely quote from what the United States Supreme Court and other authorities have said on the subject: “It has repeatedly been held that no provisions of the Federal Constitution and none of the amendments added to that instrument were intended or designed to interfere with the police power of the various states.” 11 Am. Jur. 986. “In accordance with the settled principle that no part of the Federal Constitution was intended to hamper a valid exercise of state police regulation, it is particularly established by overwhelming authority that the Fourteenth Amendment was not designed to interfere with, and does not interfere with, curtail, restrain, destroy, or take from the states the right duly and properly to exercise the police power. Furthermore, this amendment does not limit the subjects upon which the police power of a state may be exerted.” 11 a.m. Jur. 995-7.

In a letter to Mr. Duff Green, President Lincoln said: “The maintenance inviolate of the rights of the states, and especially the right of each state, to order and control its own domestic institutions, according to its own judgment, exclusively, is essential to the balance of powers upon which the perfection and endurance of our political fabric depend.”

“It is settled by repeated decisions of this Court that the equal protection clause does not take from a state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. ’ ’ Whitney v. California, 274 U. S. 357, 71 L. Ed. 1095, 47 S. Ct. 641. “If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State. . . . Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to the class of objects which demand the application of the maxim, solus populi suprema lex (Let the welfare of the people be the supreme law); and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself. Boyd v. Alabama, 94 U. S. 645.” Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989.

‘ ‘ But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.” Mugler v. Kansas, 123 U. S. 623, 660, 31 L. Ed. 205, 8 S. Ct. 273. In that case the Court further said: “No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare. This conclusion is unavoidable, unless the Fourteenth Amendment of the Constitution takes from the States of the Union those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 27, 31, that the Fourteenth Amendment had no such effect. After observing, among other things, that that Amendment forbade the arbitrary deprivation of life or liberty, and the arbitrary spoilation of property, and secured equal protection to all under like circumstances, in respect as well to their personal and civil rights as to their acquisition and enjoyment of property, the court said: ‘But neither the Amendment ■ — ■ broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.’ ” (Italics ours)

Cases without number could be cited to the same effect. But it might appear to be an act of supererogation to cite here the innumerable cases wherein the Supreme Court of the United States has held that the police power of the States was not impaired by the Fourteenth or any other amendment. In Otis v. Parker, 187 U. S. 606, 608, 47 L. Ed. 323, 23 S. Ct. 168, Mr. Justice Holmes said: “While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions or morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus (always, everywhere and by all). Even if the provision before us should seem to us not to have been justified by the circumstances locally existing in California at the time when it was passed, it is shown by its adoption to have expressed a deep-seated conviction on the part of the people concerned as to what the policy required. Such a deep-seated conviction is entitled to great respect.” (Italics ours)

No one contends that the people of Arkansas do not have the right to abolish the entire public school system if they so desire. Certainly under its police power the State has the authority to close a school to prevent violence and bloodshed and where, if the school were maintained, the teachers and students would have to take orders from soldiers with fixed bayonets, and Deputy United States Marshals.

APPENDIX

AMENDMENT NO. 44

“§ 1. Action by general assembly to protect states’ rights. — From and after the adoption of this Amendment, the General Assembly of the State of Arkansas shall take appropriate action and pass laws opposing in every Constitutional manner the Un-Constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court, including interposing the sovereignty of the State of Arkansas to the end of nullification of these and all deliberate, palpable and dangerous invasions of or encroachments upon rights and powers not delegated to the United States nor prohibited to the States by the Constitution of the United States and Amendments thereto, and those rights and powers reserved to the States and to the People thereof by any department, commission, officer, or employee of such department or commission of the Government of the United States, or of any government of any Nation or Federation of Nations acting upon the apparent authority granted them by or assumed by them from the Government of the United States. Said opposition shall continue steadfast until such time as such Un-Constitutional invasions or encroachments shall have been abated or shall have been rectified, or the same shall be transformed into an Amendment to the Constitution of the United States and adopted by action of three-fourths of the States as provided therein.

“§ 2. Statutes for administration and enforcement of amendment — Appropriations.-—The General Assembly shall enact laws to insure the administration and enforcement of the spirit and letter of this Amendment ; and shall appropriate adequate funds to effect the same, including a proportionate share of such expenses as may be necessary for the maintenance of regional committees created among the States for the preservation of rights belonging to the states and the people thereof.

“§ 3. Regulation of health, morals, education, marriage and good order. — The General Assembly shall enact such laws under the Police Powers reserved to the States as may be necessary to regulate health, morals, education, marriage, good order and to insure the domestic tranquility of the citizens of the State of Arkansas.

“§ 4. Public officers and employees — No immunity for violation of laws enacted under amendment — Forfeiture of office for violations. — No public official or employee of the State of Arkansas or of any political subdivision thereof shall have immunity from arrest, prosecution and trial for the violation of such penal laws as the General Assembly shall provide for the willful failure and refusal to carry out the clear mandates of this Amendment; and in addition to the penalties provided for by the General Assembly, shall automatically forfeit his or her office.

• “Repealing Clause. Section 5 of Amendment No. 44, read: ‘All parts of the1 Constitution of the State of Arkansas in conflict with this Amendment be, and the same are, hereby repealed.’ ”

ARKANSAS RESOLUTION OF INTERPOSITION

“BE IT RESOLVED AND ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:

“The people of the State of Arkansas express their firm resolution to maintain and defend the Constitution of the United States and the Constitution of the State of Arkansas against every attempt, whether foreign or domestic, to weaken or destroy the structure of the State and federal governments.

“The People of Arkansas will ever defend and maintain the fundamental principle of our basic laws by which certain powers were delegated by the people of the separate states to the governments of the separate states while other specifically enumerated powers, not delegated to the separate states or reserved to the people, were delegated to the federal government. The State has never delegated to the Supreme Court of the United States the power to change the Constitution of the United States.

“The People of Arkansas assert that the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political faith depends.

‘£ The People of Arkansas assert that the power to operate public schools in the State on a racially separate but substantially equal basis was granted by the people of Arkansas to the government of the State of Arkansas ; and that, by ratification of the Fourteenth Amendment, neither the State of Arkansas nor its people delegated to the federal government, expressly or by implication, the power to regulate or control the operation of the domestic institutions of Arkansas; and any and all decisions of the federal courts or any other department of the federal government to the contrary notwithstanding.

“ Therefore, The People of Arkansas, By Popular Vote:

“1. Respectfully appeal to all the people of the United States and to the governments of all the separate states and request them to join the people of Arkansas in taking steps, pursuant to Article Y of the Constitution of the United States, by which the Constitution of the United States be amended so as to contain a provision substantially as follows:
£ The legislative, executive and judicial powers of the United States as granted under the Constitution shall not be construed to extend to the regulation of the public schools of any State nor to include a prohibition to any State, in the exercise of its power, to provide by its laws for the establishment, operation and maintenance of racially separate but substantially equal public schools within such State. ’
‘ ‘ 2. Pledge our firm intention to take all appropriate measures, honorably and legally available to us, to resist any and all illegal encroachments upon the powers reserved to the State of Arkansas to order and control its own domestic institutions according to its own exclusive judgment.
“3. Urge upon the separate States and the people thereof their prompt and deliberate efforts to prohibit any further encroachments by the Federal government upon the powers reserved to the separate states and the people thereof.”


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice,

license: Public Domain

text:
    Garrett v. Faubus, Governor.
    5-1824
    Dissenting opinion delivered April 27, 1959.
   Ed. F. McFaddin, Associate Justice,

dissenting. On May 17, 1954 the United States Supreme Court delivered its first decision in Brown v. Board of Education (347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686), which was most unfortunate, and which many believe to be entirely unconstitutional. That decision upset social conditions that had existed in the South from the beginning of the American Union: it decreed racial integration in the public schools. Immediately after that decision, there began in the Southern States — of which Arkansas is proud to be a part ■— a determined and never-to-be-ended campaign to prevent racial integration in the public schools. One of the measures adopted by the Arkansas Legislature to prevent such racial integration was Act No. 4 of the Second Extraordinary Session of 1958; and that Act (hereinafter called “Act No. 4”) is the only legislation now before us on this appeal.

The present suit was filed in the Pulaski Chancery Court by Mrs. Garrett (appellant here) against Orval E. Faubus (appellee here), as Governor of Arkansas, seeking to have Act No. 4 declared unconstitutional as violating Article 14 of the Arkansas Constitution, and also as violative of the Federal Constitution. When a demurrer was sustained and the complaint dismissed, this appeal ensued. The appellant here argues only one point: that Act No. 4 is violative of Article 14 of the State Constitution. In the amicus curiae brief it is urged that Act No. 4 violates not only Article 14 of the Arkansas Constitution, but also Article 2, Section 18 of the Arkansas Constitution, and also the Fourteenth Amendment to the Federal Constitution. Counsel for appellee joins issue with the amicus curiae brief on all points; and also urges most strenuously that Act No. 4 is within the police power of the State. I never reach any Federal question. My views are these: (1) the Act No. 4 violates Section 1 of Art. 14 of the Arkansas Constitution; and (2) the claim of “police power” cannot prevent the invalidity of Act No. 4. Now I will elucidate.

1. Act No. 4. The Act is captioned: “An Act to Provide the Procedure Under Which the Governor May Order to be Closed the Schools of any School District; and For Other Purposes”. The Act provides in Section 1 that the Governor may, by Proclamation, order any school, or all schools, of a District to be closed immediately and call a Special Election to be held in the School District within thirty days thereafter, whenever, inter alia-.

“(b) integration of tbe races in any school, or all schools, of the school district has been decreed by an order of any court, and pursuant to the enforcement thereof, the President, or other officer of the United States Government, whether of the executive, legislative, or judicial branch, causes troops, whether regular troops or the federalized National Guard, United States Marshals, or other force at the federal level, to be stationed in, on or about any such public school; or
“(c) he shall determine that a general, suitable, and efficient educational system cannot be maintained in any school district because of the integration of the races in any school within that district.”

The Act No. 4 also provides in Section 2: that when a school has been closed by the Governor in accordance with Section 1 of the Act, then there shall be an election — open to all qualified electors of the school district — and the voting shall be for or against racial integration of all of the schools within the school district; that if a majority vote for racial integration, then the schools shall be opened; “. . . otherwise, no school within the district shall be integrated”. Section 4 of the Act says: “Any school closed by executive order authorized by this Act shall remain closed until such executive order is countermanded by Proclamation of the Governor filed with the Secretary of State and the Board of Directors of the School District.”

Thus it is clear that whether there will be a school in operation in a district depends on: (1) whether the Governor closes the school and calls an election; (2) how the majority votes on the integration issue; and (3) when the Governor issues a Proclamation for reopening of the schools. Stated another way, Act No. 4 makes the continued maintenance of the schools in any school district dependent on: (a) attempted integration; (b) Proclamation of tbe Governor; and (c) vote of tbe electors in the school district on the issue of integration.

II. The Arkansas Constitution. Now, let us see how Act No. 4 measures up to Section 1 of Art. 14 of the Arkansas Constitution, which reads:

“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”

Note the words: “. . . the State shall ever maintain a general . . . system of free schools . . .” We have many cases decided by this Court construing and applying this section of the Constitution. Some are: Maddox v. Neal, 45 Ark. 121; Dickinson v. Edmondson, 120 Ark. 80, 178 S. W. 930, Ann. Cas. 1917C 913; Krause v. Thompson, 138 Ark. 571, 211 S. W. 925; School Dist. No. 65 v. Banks, 144 Ark. 34, 221 S. W. 1060; and Dowell v. School Dist., 220 Ark. 828, 250 S. W. 2d 127. In Maddox v. Neal (supra), Chief Justice Cockrill said: “Without schools there could be no school system, and the directors cannot dispense with the system . . . It is the clear intention of the Constitution and statutes alike, to place the means of education within the reach of every youth. Education at public expense has thus become a legal right extended by the laws to all the people alike . . . The opportunity of instruction in the public schools, given by the statute to all the youths of the State, is in obedience, as we have seen, to the special command of the Constitution

In Dickinson v. Edmondson (supra), Chief Justice McCullough said: “No one can doubt that those who framed this provision had in mind that schools were to be conducted during each year . . . The command of the Constitution is to provide by general laws ‘for support of common schools’, and that necessarily meant to maintain a system of free schools as complete as can be, and continuous in its operations . . . The establishment of high schools is within the limits of common school education because it merely raises the standard of popular education. High schools are free schools within the meaning of the Constitution . . .”

In Krause v. Thompson (supra), Chief Justice McCullough said: “School facilities must, of course, be afforded where taxation for maintenance of the schools is imposed . . . ” In School Dist. No. 65 v. Banks (supra), the Legislature had passed a law permitting a Special School District in Logan County to charge tuition ; and the Act was held unconstitutional by this Court as being in conflict with Art. 14 § 1 of the Constitution which guarantees that instruction be “gratuitous”. Mr. Justice Hart said:

“As we have already seen, under the plain mandate of our Constitution above quoted and referred to, the gratuitous instruction of all persons in the school district between the ages of six and twenty-one years is guaranteed in the public schools. The terms ‘public schools’ or ‘common schools’ are used in our Constituion to denote that such schools are open to all persons within the approved ages rather than to indicate the grade of a school, or what may or may not be taught therein.”

A further review of opinions involving Section 1 of Art. 14 of the Arkansas Constitution is unnecessary. The rationale of our holdings is that the constitutional language means what it says, and that the state “. . . shall ever maintain a general . . . system of free schools whereby all persons . . . between the ages of six and twenty-one . . . may receive instruction , . .” That is the constitutional mandate that the People of Arkansas gave to the Legislature and the officials of this State. “To maintain” a high school means to keep it open and operating: that is what the Constitution says; and tax money is being collected in every school district in Arkansas to maintain the schools. “It is not the form, but the operation and effect, which determines the constitutionality of a statute.” (Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617.)

As heretofore shown, Act No. 4 allows the schools to be closed indefinitely as long as the threat of racial integration exists, and allows a vote to be taken — on a local option basis — to determine when and under what conditions the schools shall be reopened. Art. 14 of the Arkansas Constitution gives no such power to the Governor, or any other person, to close the schools. Neither does the Constitution provide for local option to defeat the schools. So I maintain' that Act No. 4 violates Section 1 of Art. 14 of the Arkansas Constitution. I can see it no other way.

But it has been said that when we adopted our Constitution in 1874, the rule of “separate but equal” governed in school matters, and that when the United States Supreme Court revolutionized that rule by the decision of Brown v. Board of Education in 1954, then the State of Arkansas had a right to change its policy on public education. It is true that the State has a right to change its policy on public education: but the point is, that Art. 14 of our Constitution has not been repealed by vote of the People of Arkansas, and until Art. 14 of the Constitution is repealed, this Court must continue to test legislation by the Constitution as it is, and not by what we think it may be in the future. Two wrongs will never make a right: just because the Supreme Court of the United States went contrary to the Federal Constitution in Broiun v. Board of Education, is no reason or excuse why this State Court should go contrary to our State Constitution. Until the People of Arkansas repeal Art. 14 of our Constitution, this Court should obey Art. 14, which guarantees that the State shall maintain free schools. Act No. 4 violates that constitutional guaranty. If the People of Arkansas were to strike Art. 14 from the Constitution, then the schools may he closed under some legislation similar to Act No. 4. But until Art. 14 of the Constitution is repealed, then it is my solemn and sincere view that Act No. 4 is violative of the Arkansas Constitution.

III. Police Power. These words are used to express various legal concepts, and a distinction of use is necessary. In this case, the words, “police power”, have at least three different concepts:

(1) The power reserved to the States, as contrasted to the Federal power:

(2) The inherent power of the State Legislative department; and

(3) The emergency powers of the Legislative or Executive Department.

In the present case I am not concerned with the first application (i. e. State v. Federal) because I never reach any Federal question; and all the cases about “reserved powers of the State” are entirely beside the mark, as I see the case. Act No. 4 violates the State Constitution; and so I never reach any Federal question. I will, however, discuss concepts 2 and 3 (supra) to show that Act No. 4 cannot be upheld on the basis of police power.

The rule is recognized everywhere that the police power of the State Legislature is limited by the State Constitution. In 16 C. J. S. 949 “Constitutional Law” § 196, cases from over a score of jurisdictions are cited to sustain this statement: 11 Limited by state constitution. However broad the scope of the police power, it is always subject to the rule that the Legislature may not exercise any power that is expressly or impliedly forbidden to it by the State Constitution, nor may constitutional guaranties and limitations be set aside by an application of such power, because of changed economic, sociological, or political conditions”. In Gaines v. Holmes, 154 Ga. 344, 114 S. E. 327, 27 A. L. R. 98, the Supreme Court of Georgia quoted this language: “ ‘If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety ... is a palpable invasion of rights secured by the fundamental law, it is the duty of the Courts to so adjudge, and thereby give effect to the Constitution’ ”. In People v. Chicago, M. & St. P. R. Co., 306 Ill. 486, 138 N. E. 155, 28 A. L. R. 610, the Supreme Court of Illinois quoted this language: “ ‘. . . no exercise of the police power can disregard the constitutional guaranties in respect to the taking of private property, due process, and equal protection of the laws, and should not override the demands of natural justice. ’ ” In Goldman v. Crowther, 147 Md. 282, 128 A. 50, 38 A. L. R. 1455, the Maryland Court of Appeals quoted this language regarding the police power: “ ‘But necessarily it has its limits and must stop when it encounters the prohibitions of the Constitution’ ”. In Cooley on “Constitutional Limitations” 8th Ed. p. 1229, in speaking of the police power, this appears: “But the power is subject to the limitations imposed by the . . . State Constitutions upon every power of government, and it will not be suffered to invade or impair the fundamental liberties of the citizens”.

In short, the Arkansas Legislature cannot, under the guise of police power, enact legislation contrary to the Arkansas Constitution. To hold otherwise would make the Constitution of no protection. So, in the case at bar: the guaranty contained in Section 1 of Art. 14 of the Arkansas Constitution is for the maintenance of schools; and this guaranty cannot be nullified by the Legislature under the guise of the police power, because such power does not extend to legislation violating our own Constitution.

I come then to concept 3 of the police power (i. e. the emergency power). There is a line of cases which says that statutes may be enacted by the Legislature, or Proclamation made by the Governor, to cope with unusual emergencies and exigencies. This is discussed in 11 A.M. Jur. 979, “Constitutional Law” § 252, “Emergency Police Legislation”. But the cases on such emergency police legislation recognize that a law dependent upon the existence of an emergency can only apply to an emergency situation-, and that such a law ceases to operate when the emergency is past; and that it is the duty of the Courts to decide as to the existence and the end of the emergency.

Of course, in time of plague, pestilence, or other great danger, schools can be closed as health measures or police measures; but this is only for the emergency. In the case at bar, the closing is permanent — not merely until some plague or pestilence or danger has subsided, but — the schools will be closed as long as there is a threat of racial integration in the schools. That is too long. An entire generation could grow up ■ — ■ and probably will — while we are striving to get a Supreme Court of the United States that will overrule Brown v. Board of Education and return to the constitutional doctrine of ‘ ‘ separate but equal5 ’. Meantime, are the schools to remain closed? They have already been closed for nearly a whole school year. Under Act No. 4 they could be closed for an entire generation. Thus it is clear that Act No. 4 cannot be sustained under any theory of “Emergency Police Powers”, because we are not dealing with the kind of an emergency that permits the use of ‘ ‘ Emergency Police Powers ’ ’. Eather, we are dealing with a condition that has already existed since 1954 and will continue to exist until either the United States Constitution is amended or the United States Supreme Court overrules Brown v. Board of Education.

Two wrongs do not make a right. Let the Supreme Court of Arkansas stay within the Arkansas Constitution, even if the United States Supreme Court has not stayed within the Federal Constitution. Section 1 of Art. 14 of the Arkansas Constitution says: “. . . the State . . . shall ever maintain a general . . . system of free schools . . .” The State is not “maintaining”, and never will “maintain” such a system under Act No. 4; and so I sincerely and solemnly say that Act No. 4 violates Section 1 of Art. 14 of the Arkansas Constitution and should be stricken.

       Under our system of separate but equal schools between the white and negro races, as -repeatedly recognized by the United States Supreme Court, the Southern Negro has enjoyed educational facilities and opportunities for racial advancement far superior to those enjoyed by members of that race crowded into ghettos in northern cit'es. If it would accomplish anything constructive, I would write an entire treatise on why Brown v. Board of Education is unconstitutional: it is an invasion of the Legislative powers of the Congress, as well as an invasion of the powers reserved to the States in matters of education and local concern. But nothing can be gained, in a decision of the present case, by a further discussion of Brown v. Board of Education; because I base my views entirely on the Constitution of the State of Arkansas.

       The entire argument in the appellant’s brief is: “The appellant stands on the plain language of Article 14 of the State Constitution. It is our contention that the plain language of that Article is subject to but one interpretation, and that is that the State shall ever maintain a general, suitable and efficient system of free schools. Hence, any legislation, or official act thereon, closing a school, except for the peace, health and safety of the public, is diametrically opposed to Section 1 of Article 14. The Court will take judicial knowledge of the reason for the closing of the schools involved. The lower court should be reversed with directions to sustain the prayer in the complaint.”

       Under Act No. 4 the Governor of Arkansas issued a Proclamation (of which we take judicial notice) on September 12, 1958 closing the public senior high schools of the Little Rock School District; and another Proclamation on September 16th, calling an election for September 27, 1958. At that election the majority vote was against integration; so the four public senior high schools of the Little Rock School District have been closed ever since September, 1958 and an entire school year will soon be completed with no public senior high schools having been maintained in the Little Rock School District.

       Webster’s Unabridged Dictionary says that “maintain” means, inter alia, . . to hold or keep in any particular state or condition . . . to support . . . not to suffer to fail or decline ... to bear the expense of ... to carry on ... to give support to . . .”

       Amendment No. 44 to the Arkansas Constitution was not mentioned in any of the briefs. That Amendment certainly does not expressly repeal Section 1, Art. 14 of the Arkansas Constitution. Neither does Amendment No. 44 impliedly repeal said Section 1 of Art. 14, because implied repeals are not favored, either in constitutional or statutory construction (16 C.J.S. p. 35 and p. 131). One might just as well argue that the Amendment No. 44 impliedly repeals Art. 2 of the Arkansas Constitution (the declaration of rights) as to argue that it impliedly repeals Art! 14 of the Arkansas Constitution, which guarantees the maintenance of free schools.


text:
    Dickson v. State.
    4932
    323 S. W. 2d 432
    Opinion delivered April 27, 1959.

      Robinson d Robinson, for appellant.

      Bruce Bennett, Atty. General, by Ancil M. Reed, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, W. S. Dickson, was tried on a charge of assault with intent to kill and was convicted of aggravated assault. On appeal he contends there is no substantial evidence to support the verdict and that the court erred in not following the jury’s recommendation that the jail sentence of six months be suspended. On the evidence the jury was justified in reaching a finding of facts as follows:

The assault occurred in Stamps, Arkansas, on the 6th day of March, 1958. Previous to that time Mr. Frank Burke, 68 years of age, Mayor of Stamps, had fined appellant Dickson’s son for operating an automobile without a State license; also previous to that time Mayor Burke had fined one Andrew Minter for assault made upon another person, and Minter had made threats against the Mayor by reason of Minter’s having been found guilty by the Mayor. On the 6th day of March, Dickson and Minter went to the Mayor’s office for the purpose of inflicting injury upon the Mayor or killing him. A short time before they went to the city hall, Dickson was seen with a pistol. When they got to the city hall, Dickson proceeded to strike and beat the Mayor. There is no direct evidence that Dickson used a dangerous weapon, but the Mayor was dazed by the blows and was unable to state whether any weapons were used. Mr. Walters, who was in the Water Company office down the hall from where the attack on the Mayor was being-made, went to the Mayor’s assistance and grabbed Dickson’s arms from the back and forced him down the hall into the Water Company office, leaving the Mayor in the hallway with Minter. After Walters got Dickson into the Water Company office, he heard a thud and went back into the hallway, and the Mayor was on the floor bleeding- profusely from the head. Mayor Burke was severely injured; he was knocked unconscious. He was taken to the hospital in Shreveport, where he remained for eight days, then returned to his home at Stamps for a couple of days, but then had to go to the hospital at Lewisville, where he stayed 10 or 12 days.

All persons who participate in the commission of a misdemeanor are punishable as principles. Crocker v. State, 49 Ark. 60, 4 S. W. 197; Miller v. State, 55 Ark. 188, 17 S. W. 719. Both Minter and appellant Dickson were convicted of aggravated assault; only Dickson has appealed. By the verdict of aggravated assault the jury found the defendant not guilty of assault with intent to kill. The question is whether the evidence is sufficient to sustain the aggravated assault conviction. Where there is no evidence that the assault is made with a deadly weapon, instrument or other thing, the defendant cannot legally be convicted of an aggravated assault, under the statute. Ark. Stat. § 41-605. The shoes which a person wears as a part of his ordinary apparel are not deadly weapons, within the meaning of the statute relative to aggravated assault. Wilson v. State, 162 Ark. 494, 258 S. W. 972. Here there is no direct evidence that a deadly weapon of any kind was used in making the assault upon Mayor Burke, but the nature of the injuries he received is circumstantial evidence of the fact that some kind of a weapon was used. The victim received a terrific brain injury, causing unconsciousness, a rupture of the ear drum, and profuse bleeding from the ear, and appellant was seen with a pistol a short time before he and Minter went to the city hall to make the attack upon the Mayor. "When all these circumstances are considered, we think the evidence is sufficient to sustain the finding of the jury that a deadly weapon was used. Moreover, Dickson and Minter were not arrested until some time after the attack, and they had ample opportunity to dispose of any weapon that may have been used.

The jury returned a verdict of $100 fine and “six months suspended sentence”. At that point the court made it clear to the jury that the court was not compelled to accept the recommendation, of the jury as to suspending the sentence; the court polled the jury and asked the members if they had known that the court would not follow the recommendation, would that have made any difference in the verdict; one juror answered in the affirmative. The court then sent the jury back for the purpose of reaching a verdict. Again the jury returned the same verdict and reported that it was unanimous. The jury clearly understood that the court was not compelled to accept the recommendation of a suspended sentence. And, the court did not follow the recommendation and unconditionally suspend the sentence. However, the court did determine that Mayor Burke had medical and hospital expenses of $962.66 growing out of the injuries received; that only $230 of this amount was covered by insurance; and ordered that the six months jail sentence be suspended upon Burke’s being reimbursed in the sum of $732.66 for his hospital and medical expenses.

Ark. Stat. $ 43-2324 provides: “Whenever, in criminal trials in circuit court, ... a verdict of guilty shall have been rendered, the judge trying the case shall have authority ... to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to the probation of the person convicted, the restitution of the property-involved, . . . ”

We cannot say the court’s action in conditioning the supended sentence on Mayor Burke’s being reimbursed for his medical and hospital expenses is improper or unreasonable.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Beach Abstract & Guaranty Co. v. Bar Assn. of Ark.
    5-1789
    362 S. W. 2d 900
    Opinion delivered April 27, 1959.
    [Rehearing denied September 21, 1959]

      Catlett S Henderson, for Beach Abstract & Guaranty Co.; Bose, Meek, House, Barron <$> Nash, for Appellant, Little Rock Abstract Co.

      Gentry é Gentry, Of Counsel: John A. Fogleman, Eugene A. Matthews, John H. Lookadoo, J. M. Small-wood, Max B. Beid, Lamar Williamson, Terrell Marshall, E. A. Henry, Joe C. Barrett, for appellee.
   Jim Johnson, Associate Justice.

This suit was instituted by appellee Bar Association of Arkansas, acting through its proper committee (joined by the local Bar Association of Pulaski County) praying a declaratory judgment holding that the conduct and procedure of appellants, Beach Abstract & Guaranty Co., et al., in certain enumerated instances are unlawful and constitute unauthorized practice of law.

After hearing testimony relative to certain activities on the part of the appellants alleged to constitute unlawful practice, the Chancellor sustained appellees’ contentions and in addition to rendering a declaratory judgment against appellants, the court also enjoined them from further engaging in such alleged unauthorized practice. Prom this decision comes this appeal.

The appellants have set out four separate and distinct grounds upon which they rely for a reversal. However, in view of the disposition which we hereafter make of this case, we deem it unnecessary to, discuss these points separately or in detail.

The facts are substantially undisputed. The trial court’s exceptionally well written findings of facts are as follows:

“The defendants, Beach Abstract & Guaranty Company and Little Bock Abstract Company, are corporations duly organized and existing under and by virtue of the laws of the State of Arkansas, having their principal offices in the City of Little Bock, Pulaski County, Arkansas, and in addition to usual and ordinary business powers are organized for the specific purposes and are duly authorized to operate and maintain abstract of title plants, and are authorized to and are engaged in the preparation of abstracts of title, the solicitation and issuance of title insurance policies as general agents for title insurance companies, and in acting as escrow agents in connection with insuring titles and in closing real estate sales. Neither defendant has been, nor can be, admitted to the practice of law in this State.
“The defendant companies, and each of them, acting by and through persons employed by them, in connection with the conduct of their several businesses and in connection with transactions in which the said companies, as such, have no direct interest, have been and are regularly and continuously drafting some or all of the instruments and performing some or all of the functions for their numerous clients, patrons and customers as hereinafter enumerated, to-wit:
“ (a) Drafting and preparation of warranty deeds, disclaimer deeds and quitclaim deeds.
“(b) Drafting and preparation of promissory notes, real estate mortgages, real estate purchase contracts and related instruments.
“(c) Drafting and preparation of forms of agreement for the sale of real estate, chattels, and choses in action.
“(d) Drafting and preparation of mortgages and pledges of personal property.
“(e) Drafting and preparation of forms of conveyances naming husband and wife as grantees.
“(f) Drafting and preparation of bills of assurance, dedication instruments, and tract and sub-division restrictions.
“(g) Drafting and preparation of escrow instructions, setting forth agreements between buyers and sellers, and the rights and liabilities of buyers and sellers.
“(h) Drafting and preparation of affidavits of completion of improvements, affidavits of marital status and heirship, and various and sundry additional forms of affidavits and other instruments to remove clouds and perfect titles.
“The drafting and preparation of the instruments and the performance of the functions hereinabove enumerated was done for the most part in connection with escrow services and the insuring of titles. No charge is made for the drafting and preparation of the instruments other than that the defendants receive for their escrow services a compensation which is based upon the dollar volume of the transaction; and where their services are utilized in connection with the issuance of a policy of title insurance the only compensation received is that charged for issuance of such a policy; and in the case of the defendant Little Rock Abstract Company such compensation is fixed without reference to the necessity, if any, for the drafting and preparation of the instruments above described. Insofar as the defendant, Little Rock Abstract Company, is concerned, the drafting the preparation of instruments was limited to the filling in of printed forms, which it did not prepare, and in each instance, whether done by either of the defendants, said forms were filled in only by inserting data from information and directions furnished them by owners, real estate brokers, mortgagees, or others, for whom they were acting. In certain instances the mortgagees for whom the defendants act furnish to the defendants the specific printed forms which they direct be used and such forms thus furnished are filled in by defendants from data supplied by the mortgagee.
44 The Court further finds that in addition to the foregoing activities, the defendants are corporate agents for title insurance companies and as such agents, regularly and continuously solicit title insurance business, determine the state of the title, and, if deemed by them to be defective, draft and procure the execution of whatever instruments they deem are necessary to make such titles insurable. In determining the insurability of title, the defendants look to their records and to abstracts if available. The defendant, Little Bock Abstract Company, determines the state of the title for itself, as it has full authority as general agent to issue policies. The defendant, Beach Abstract & Guaranty Company, for the most part upon opinions of attorneys as to the state of the title, or upon occasion on its own determination as to the risk, issues policies of title insurance placing such policies in effect by counter-signatures under its authority as General agent, and reports the issuance to its principal. By contract with its principal, the defendant, Beach Abstract & Guaranty Company, in the event of a claim of loss or loss under a title insurance policy it has issued as General Agent upon its countersignature must pay the first $150 of any loss, or expense in defending a claim of loss, and 10 per cent of the total loss, or expense of defending a claim of loss, such liability being limited, however, to the total sum of $1,000.”

The learned Chancellor concluded as a matter of law that the activities as heretofore set out in his findings of facts constituted unauthorized practice of law, whether done in connection with an escrow business or in connection with rendering title to property insurable. It is universally held that the power to regulate and define the practice of law is a prerogative of the judicial department as one of three divisions of government. This is especially true in this state by virtue of Amendment No. 28 to our Constitution which reads:

4 4 The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys.”

The awareness of the grave and delicate responsibility resulting from this constitutional • mandate necessitates our considering the ease at bar in two aspects: (1) The conduct of an abstract business; and (2) The conduct of a title insurance agency.

Abstract Business. The questions presented here relative to the conduct of an abstract business are substantially the same as the questions presented in the case of Arkansas Bar Association, et al v. Sam Block, et al, 230 Ark. 430, 323 S. W. 2d 912, which is being handed down today. Due to the holding in that case we deem it unnecessary to discuss in this opinion the same subject matter that is covered so adequately in that case except to add that the same provisions that apply to the real estate companies also apply to abstract companies. We are unable to see why the rules governing abstracting activities should not also govern appellants activities relative to escrow agreements.

Title Insurance Agencies. A careful review of the facts relative to title insurance agencies make it abundantly clear that title insurance is written by the insurance company only after its agents have satisfied themselves that the title is insurable. This satisfaction is a result of a cheek of the abstract or records by the agents of the company and in many cases after substantial curative work has been done by its agents. It is contended by appellants that this work is done incidental to their own business and without charge. The record reflects that it is true that the title insurance agents do have a contract with the insurance company to indemnify such company for a limited amount of whatever loss might be sustained on insurance policies issued through the agents. It is further true that no listed charge, as such, is made for the performance of these services. However, it is admitted that a deduction or refund is given to the insurance applicant who provides his own attorney in the performance of the functions ordinarily done by the insurance agent. Belative to the compensation theory, we agree with the Supreme Court of Nebraska when it said in State, ex rel, Wright v. Barlow, 131 Neb. 294, 268 N. W. 95 (1936):

“It is a matter of common knowledge that attorneys are appointed by the federal courts to defend indigent persons, charged with crimes in such courts, and that they render such service without compensation. It can scarcely be said that the defense of a person charged with a crime in a federal court is not the practice of law. It might as well be said that a surgeon who performs, without fee or reward, a tonsillectomy or appendectomy is not practicing surgery.”

And as to the theory that the agency is doing business for itself, or performing legal services incidental to its business, the supreme Court of Nevada stated our view in the case of Pioneer Title and Insurance Company v. State Bar of Nevada, et al., 326 P. 2d 408, Avhen it said:

“. . . The legal services provided by the title company Avere, it is true, incidental to its business. That incidence, however, cannot be said to partake of the practical necessity which we regard as essential, if an exception is to be made in the public interest. Furthermore, it cannot be said that the legal profession is unable to provide the necessary legal services. ' The very procedures followed by the company disprove this. The title company was, then, engaged in unauthorized practice of laAV.”

Therefore, we conclude that title examination and curative work, Avhen done for another, constitutes the practice of laAV in its strictest sense and has long been considered as such.

This prohibition by us against others than members of the Bar of the State of Arkansas from engaging in the practice of law is not for the protection of the lawyer against lay competition but is for the protection of the public. The rights bestowed upon citizens of this country by the law and those rights inherent in the citizenship are the gauge of our freedom and of our civilized progress. They must be prized as such and the reciprocal obligation to honor the rights of others must be respected. Due respect for these rights and obligations requires that at all times they be susceptible of definition. This proposition lies at the very foundation of our system of law. The public interest, therefore, requires that in the securing of professional advice and assistance upon matters affecting one’s legal rights, one must have assurance of competence and integrity and must enjoy freedom of full disclosure, with complete confidence in the undivided allegiance of one’s counselor in the definition and assertion of the rights in question.

It is to meet the requirements of public interest that high standards of training and competence are fixed for those who would practice law, and that they practice under a strict code of professional ethics and are made answerable to the courts as court officers for the manner in which they meet their professional obligations. The legal profession has, through acceptance of its obligations, traditionally become imbued with a spirit of public service.

The bench and bar may not lightly disregard these public obligations. Nor, in default of duty, may they casually permit the public to be led to rely upon the counselling, in matters of law, of persons not subject to the standards and discipline of an attorney as imposed by law for the public protection. However, in view of what we have already said, we feel that it was not necessary for the Chancellor to issue an injunction against appellants, the declaratory judgment being sufficient.

In accordance with what we have said above, with the exception noted, the decision of the trial court is affirmed.

Modified and affirmed.

George Rose Smith, J., not participating-


author: Carleton Harris, Chief Justice.

text:
    Hargis v. Horrine.
    5-1761
    323 S. W. 2d 917
    Opinion delivered May 4, 1959.
    [Rehearing denied June 1, 1959]

      Murphy Burch and Jeff Duty, for appellant.

      Greenhaw S Gre.enhaw, Rex W. Perkins and Thomas Pearson, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Beatrice Hargis, and appellees, husband and wife, are residents of Madison County. On June 2, 1957, Mrs. Hargis and Mrs. Horrine engaged in a physical altercation, following a fight between their husbands. Subsequently, appellant instituted suit against both appellees, alleging that each of the appellees assaulted her, inflicted painful and permanent injuries to her body, and prayed judgment against Horrine and wife, jointly and severally, in the amount of $11,000. A general denial was filed by the Horrines, and the cause proceeded to trial on February 20, 1958. The jury returned a verdict for appellees, and the court entered its judgment dismissing the complaint. From such judgment, comes this appeal. Only one point is raised in urging a reversal, vis., ‘‘ The court was in error in the giving of Instruction No. 6.”

The proof reflected that the two families were neighbors, and had previously disagreed about some property lines. On June 2nd, Hargis was riding on his horse, and Horrine stopped him in the road. After some words, the two engaged in a fight, in which Hargis was worsted. According to Horrine’s testimony, appellant arrived upon the scene and said:

“ ‘What did this fight start over?’ And I said, ‘He called me a--son-of-a-.’ And she said, Mrs. Hargis says, ‘He never called you no son-of-a--.’ And I said, ‘Yes, he did.’. I said, ‘Mrs. Horrine heard him.’ And she said, ‘Well, Mrs. Horrine’s just a liar’, she said, ‘when she heard him call you son-of-a--.’ And I said, ‘I bet you won’t tell her that to her face.’ And she said, ‘I’ll tell her that to her face.’ And when she said that, well, just about a minute, why, I looked across the hill, and Mrs. Horrine was coming down the hill, a-carrying the baby, and she come up with the baby and handed the baby to my oldest boy, and she said, ‘Here, Doyle, you take care of this baby. ’ And she come on up, and she said, ‘Don’t you call me a liar.’ And Mrs. Hargis said, ‘Who called you a liar? I didn’t call you no liar.’ And I said, ‘Why, you did. You just now called her one.’ She said,‘Well, all right, then.’ Mrs. Horrine said, ‘I know you did; I heard you.’ And Mrs. Horrine started on up the hill where she was, and Mrs. Hargis came a-meeting her, and when they met, why, Mrs. Hargis grabbed into her hair, and Mrs. Horrine hit her. Mrs. Hargis shoved her down the hill and fell down the hill, and Mrs. Hargis landed on top. Mrs. Horrine’s head was just about at Mrs. Hargis’s breast. Mrs. Hargis fell right on over, with her head into the ground, and they just scrambled around there for a while, and Mrs. Hargis had her hair, and Mrs. Horrine had grabbed her by the hair, and they was pulling hair right there on the ground. They scrambled around there a while, and Mrs. Horrine come on top, and when she come on top, why, she went to slapping her, and they went to pulling hair again, and when they went to pulling hair again, why, Mrs. Hargis said, ‘Kate, let me up.’ ”

Mrs. Hargis testified that Horrine either hit her with a rock or handed one to his wife. Horrine denied this, though he stated that he picked up a rock because Mr. Hargis had done likewise. According to Horrine, he and Hargis stood there, side by side, and “let them fight it out.” The only eye witnesses to the occurrence were the Hargises, and the appellees and their son, Doyle. Conflicting versions were offered by the participants as to who started the trouble, but Doyle testified:

“* * * So Dad said, ‘You’ll not call Mom a liar to her face.’ And she said, ‘I’ll call Kate a liar to her face.’ And Dad said, ‘I wish she was here right now,’ and he looked around and seen Mom a-eoming, and when she got there, Dad said, ‘You call Kate a liar, now.’ And she said, ‘Why, did I call her a liar 1 I never called Kate no liar.’ Mom said, ‘I know you did,’ she said, ‘I heard you.’ She went on a-meeting her, Beatrice came a-meeting her and she rushed out and grabbed Mama by the hair of her head. About time she grabbed Mama by the hair of the head, Mama hit her.”

After the encounter, appellant was examined by Dr. Charles Beebe, who testified that she was bleeding profusely from a scalp wound; that he took 7 or 8 stitches, and continued to treat her, giving appellant a shot of estrogen every two weeeks; that in his opinion, she had a permanent nerve injury. Wilda Wilson, a nurse at Washington County Hospital, stated that Mrs. Hargis appeared to be in pain and was unconscious when she went in to take care of her; “* * * her head was hurt. It was bandaged; I couldn’t see that, but she was black and blue just all over.” Dr. Jeff Baggett testified that in his opinion, appellant suffered a brain injury as a result of the fight.

At the conclusion of the testimony, the court instructed the jury as to the applicable law; included in such instructions was Instruction No. 6, which is alleged by appellant to be inherently wrong, and prejudicial error. Instruction No. 6 reads as follows:

“You are further told that the testimony is in dispute as to whether or not Woodrow Horrine touched or assisted in the assault between Beatrice Hargis and Kate Horrine. Before Woodrow Horrine could be held liable, it is necessary that you find he actually assaulted, that is, physically touched, the body of Beatrice Hargis during this foray, or that he aided or encouraged or assisted, in some direct manner, the assault being made by Kate Horrine. Now, there is testimony that is in dispute there as to just what part Woodrow Horrine played. It is up to you to determine the truth, who to believe and who not to believe. If you find that he did not physically touch the body of Beatrice Hargis during this altercation, or that he did not hand anything to Kate Horrine as a means of furthering the controversy, you ivill have to find for Woodrow Horrine, because he would actually have to have touched the plaintiff or been a direct means whereby the defendant, Kate Horrine, could further her assault such as handing her something in the furtherance of her assault. Mere words, on his part, yelling or encouraging, would not be sufficient to justify a verdict against him.”

The italicized portion of the instruction was certainly erroneous. As stated in American Jurisprudence, Yol. 4, Sec. 4, page 127:

“Liability for an assault or assault and battery is not necessarily restricted to the actual participants; any person who is present, encouraging or inciting an assault and battery by words, gestures, looks, or signs, or who by any means approves the same, is in law deemed to be an aider and abettor and liable as a principal. Such a person assumes the consequences of the act to its full extent as much as the party who does the deed.”

See also Corpus Juris Secundum, Yol. 6, Sec. 27, page 830. Numerous cases are cited in both of these authoritative works in support of this principle of law. Appellees contend, however, that even though the instruction be erroneous, the matter became moot when the jury returned their verdict in favor of Mrs. Horrine; i.e., Woodrow Horrine could not be guilty of an unlawful act if Kate Horrine was found blameless. In other words, the jury found that Mrs. Horrine was not guilty of an assault, and Mr. Horrine, accordingly, could only have encouraged an innocent party. As stated in their brief, “Under these circumstances, how could one who is alleged to have assisted and aided the active participant in an assault be guilty of such aid and encouragement when the active participant has been absolved of all liability therein?” While this argument, at first blush, seems rather logical, we are convinced, after a study of numerous cases, that such position is unsound and without merit. Woodrow Horrine’s possible liability was not secondary to that of Mrs. Horrine, i.e., it was not derived from, nor dependent upon Mrs. Horrine’s alleged culpability. As stated in Corpus Juris Secundum, Yol. 6, Sec. 27, page 832:

“No joint damages can be assessed against one of several defendants to a joint assault for anything which occurred before his participation therein, but the failure to prove a joint liability in a joint action for assault and battery will not defeat a recovery against any one or more proved guilty; so that one of defendants was justified in his attack on plaintiff, does not of itself absolve the other defendants.”

We are of the view that the jury could, had it been given the proper instruction, and so desired, have cleared Mrs. Horrine of liability and still found against the husband. Each could have been held liable, independent of the acts of the other. For instance, the jury could have found that Mrs. Horrine, in good faith, thought that she was about to be attacked, and defended herself, or even that Mrs. Hargis struck the first blow — or being unable to determine which was the aggressor, found for the defendant (appellee). Though reaching this conclusion, the jury still could have rendered a verdict against Mr. Horrine, finding that he encouraged and prompted his wife to enter the affray, when he could have as easily sent her back home. Certainly it is not beyond the realm of possibility that the jury, if properly instructed, could have found the injuries suffered by Mrs. Hargis resulted from the “sicking on” of his wife by Woodrow Horrine. We find this view many times expressed. In Knott v. Litton, (La.) 81 So. 2d 124, Mrs. Knott brought suit against David Litton and wife for injuries sustained from being beaten with a stick by Mrs. Litton. Due to illness of Mrs. Litton at the time of trial, a continuance was granted to her, and the case proceeded against Mr. Litton. The proof reflected that Litton and Mrs. Knott were arguing about the fact that Litton’s cattle had been running on Mrs. Knott’s property. Litton proceeded to “bawl her out”, and threatened to kill her dog. It was established he made the statement that if she were a man or he a woman,' he would whip her. Litton proceeded to his residence, and returned in a few minutes with his wife, who picked up a green sweet gum sprout, several feet long, and beat Mrs. Knott over the body. When neighboring ladies attempted to come to Mrs. Knott’s assistance, Mr. Litton told the ladies to “leave them alone.” Judgment was rendered against Litton, and the Louisiana Supreme court, in affirming, stated:

“The conclusion is inescapable that Litton became inflamed with anger during his conversation with Mrs. Knott, following which he went home and got his wife for the precise purpose of doing just what she did. * * * Neither is there any question but what David Litton wilfully and maliciously incited, encouraged and induced his wife to attack plaintiff.”

In our own case of Gordon v. McLearn, 123 Ark. 496, 185 S. W. 803, the McLearn brothers instituted suit against Gordon and K. B. Malin for malicious prosecution, it being alleged that Gordon and Malin conspired together to cause the arrest and prosecution of appellees on the false charge of having removed and disposed of two bales of cotton, upon which Gordon held a landlord’s lien. Appellees’ proof reflected that the McLearns sold the bales of cotton to Malin, and Gordon represented to Malin that the cotton was subject to his lien, and he had forbidden the removal of same until his rent was paid. Gordon and Malin went together to the Justice of Peace, who issued the warrant of arrest, though only Malin signed the affidavit for warrant. The McLearns were arrested. Malin became convinced that appellees had committed no wrong, and so advised the prosecuting attorney, who ordered dismissal of the criminal charge. The jury returned a verdict in favor of Malin, but rendered judgment against Gordon. Gordon appealed, contending that the verdict of the jury in Malin’s favor required his own discharge as well. In rejecting such contention, this Court said:

“But the individual liability did not depend upon the proof of the existence of a conspiracy. At least two persons must be guilty to constitute an unlawful conspiracy, whereas one person alone may be guilty of conduct which furnishes the foundation for an action for malicious prosecution, even though such person induces another to set the machinery of the law in motion. The court submitted these questions to the jury under appropriate instructions, and the jury was told the circumstances under which one or the other or both of the defendants might be held liable. Here the jury had evidence to support its finding that appellant alone was liable for this prosecution, and their verdict in Malin’s favor shows that they so found. It is true Malin signed the affidavit and appellant did not do so. But this fact does not necessarily make one liable, nor does it necessarily excuse the other. Malin may have been excused by the jury because of a finding in his favor that he had probable cause, or was not prompted by malice, or was justified in acting upon the advice of counsel; but'the proof did not also require a finding in appellant’s favor because Malin was exonerated from blame, nor because appellant did not actually make the affidavit.”

See also Houghton v. Pierce Petroleum Corp., 178 Ark. 917, 13 S. W. 2d 26. In Leech v. Missouri Pacific Railroad Company, 189 Ark. 161, 71 S. W. 2d 467, Mrs. Leech brought suit in her representative capacity against appellee, seeking damages in the amount of $45,000 for the benefit of herself, as widow, and her son, and for $5,000 for the benefit of the estate of her deceased husband, alleging that her husband’s death was caused by the negligence of appellee. The jury returned a verdict for the benefit of the estate in the sum of $3,750, but made no further finding. A judgment was accordingly entered for that amount, but the judgment further provided:

“It is further considered, ordered and adjudged that no finding was made by the jury upon the cause of action for the benefit of the widow and child of the deceased. It is therefore considered, ordered and adjudged that the plaintiff take nothing upon her cause of action for the benefit of the widow and child of the deceased.” In an Opinion written by the late Mr. Justice Humphreys, this Court said:
“Appellant contends that two causes of action were alleged, which is conceded by appellee, and that she was entitled to a verdict as well upon her cause of action for the benefit of herself and son as upon her cause of action for the benefit of the estate, and that it was error not to require the jury to return a verdict for a substantial amount for the benefit of herself and son. It is argued that in order to find a verdict for the benefit of the estate it was necessary for the jury to find that appellee and Graham were negligent and that deceased was not. This is true, and the verdict on behalf of the estate is supported by sufficient evidence, as there was testimony tending to show these facts. It does not follow, however, that because two separate and distinct causes of action are tried by the same jury the finding of facts in one cause is binding on the jury in the other cause of action if there is a dispute in the testimony. Although there was evidence tending to show concurrent negligence on the part of Graham and appellee and no negligence on the part of deceased, yet there was evidence tending to show no negligence on the part of appellee, and the jury was at liberty to so find in the cause of action on behalf of appellant for the benefit of herself and son, as much so as if the two causes of action had been tried separately instead of together. Notwithstanding the causes of action may be tried together under the provisions of the statute, they are wholly independent of each other, and the finding of the jury in one is not binding upon the jury in the other if the facts are in dispute, as they were in this case.”

See also Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460.

The facts in the instant litigation were in dispute, and under these holdings, we think the jury could have found either for or against the husband or wife, though reaching a contrary verdict as to the liability of each. The court’s erroneous instruction could have prevented any verdict against Mr. Horrine, and it is our duty to reverse unless it clearly appears that the error was harmless. Conway v. Coursey, 110 Ark. 557, 161 S. W. 1030. As was held in Neal v. Brandon, 70 Ark. 79, 66 S. W. 200, an erroneous instruction is presumed to have been prejudicial until the contrary is shown.

The judgment in favor of Kate Horrine is affirmed, but it is reversed as to Woodrow Horrine, and the cause remanded for further proceedings not inconsistent with this opinion.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Mack v. Scott.
    5-1836
    323 S. W. 2d 929
    Opinion delivered May 4, 1959.
    [Rehearing denied June 1, 1959]

      Spencer $ Spencer, for appellant.

      W. R. McHaney, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellees, Scott and McHaney, doing business as Scott and McHaney Well Service Company, and Jim Cook, intervenor herein, sued J. E. Powers, Willie Mack and Spring Oil Company, Inc., appellants, for work and labor performed and materials furnished on three oil wells, in January 1956, on property alleged to be owned and controlled by appellants. Scott and McHaney sought a judgment in the amount of $290.50 and asked that said judgment be declared a lien. Jim Cook sought a judgment of $79.50 for work and supplies on one of the above oil wells and also asked for a lien. A trial resulted in a decree for Scott and McHaney against Spring Oil Company, Inc., and Willie Mack for the amount claimed and also allowed them a lien and awarded foreclosure of the lien on the property for this amount. The court also entered a decree in favor of Jim Cook for “a personal judgment against Spring Oil Company and Willie Mack” for $79.50 but Ms prayer for a lien was denied. TMs appeal followed. For reversal appellants rely on the following points. “I ■ — • There is no evidence proving an account and the finding of the chancellor that an account was proved is against the clear preponderance of the evidence. II — The undisputed evidence shows that any account (even if proved) was charged against J. E. Powers and there is no evidence on which to base a judgment against either Spring Oil Co., Inc., or Willie Mack. Ill — The undisputed evidence shows that no notice of intention to file lien was served on Spring Oil Co., Inc., or anyone else in proper manner and lien was not filed against their interest in property — subjecting property to lien is clearly erroneous under these circumstances. IY-Willie Mack was never served as a party defendant and rendering judgment against him when he has not been made a party was clearly erroneous.”

After a careful review of all the testimony, some of which is in conflict, we think the preponderance thereof, in effect, supports the following summation: Willie Mack owned the land and the three oil wells on which the work was performed. He was the principal owner of the Spring Oil Company, Inc., was its president and agent. On December 28, 1955, Spring Oil Company, Inc., entered into a contract with J. E. Powers which gave Powers the option to purchase these wells for a consideration of $35,000 and gave him the right to take possession, to operate the wells, and to do such work on them as he cared to do, at his own expense. W. B. Harmon, who was a pumper on the lease, and Willie Mack’s employee, told Scott and McHaney to do the work involved here on the Spring Oil Company lease. When they arrived to do the work, Harmon directed them as to the work that they did and on at least one of the days while they worked, Willie Mack and his son were present, saw the work going on and Mack made no objection. After the work was completed, Mack and Powers directed Mr. McHaney, Sr., who kept books for Scott and McHaney, to charge the work done by these appellees to Powers. Two bills, properly stating the two accounts, were sent to Powers who refused to pay them. Prior to performing the work here involved, Scott and McHaney and Jim Cook had serviced wells on what was known as the Spring Oil Company lease on Harmon’s request and all these bills were paid by Willie Mack. On April 4, 1956, Scott and McHaney filed an affidavit for a laborer’s lien on the “Spring Oil Company lease” on which the wells were located, alleging that they had performed the labor on the order of J. E. Powers and his agent. No notice of intention to file the lien was given Spring Oil Company in the statutory manner. Jim Cook, on orders of W. B. Harmon, performed work on one of the wells and was told to charge the work to J. E. Powers. He testified: “A. He (Willie Mack) told me that Mr. Powers would pay the bill, if he didn’t he would. Q. He told you to charge it to Mr. Powers? A. That’s right. Q. And that he was responsible for it and if Mr. Powers didn’t pay it he would? A. No, he didn’t say ‘I’m responsible’; he said, ‘you know my company is responsible for it.’ Q. He said if Mr. Powers didn’t pay you he would? A. He would. Q. But that Mr. Powers was the one for you to bill it to and the one to pay it? A. Yes, sir.” Cook filed no lien and claimed none but in his intervention against Powers and Willie Mack, alleged that he “was employed by J. E. Powers and Willie Mack, their agents and employees,..................That, for his services he earned the sum of $79.50; .................. was entitled to a judgment against each of the defendants in the full sum sued for,”.

Appellants first contend that there were no accounts proved and that the evidence was not sufficient to support the judgments herein against either Willie Mack or Spring Oil Company, Inc. We do not agree. We have concluded that the preponderance of the testimony shows that Powers, in the circumstances, was not only acting for his own interest, but as the agent of Willie Mack and the Oil Company with apparent authority, when he secured the services of Scott and McHaney to perform the work on the three wells, and the services of Jim Cook to perform work on one of the wells in which he and Willie Mack were interested. The rule of law appears to be well settled that ‘ ‘ The authority of an agent must be shown by positive proof or by circumstances that justify the inference that the principal has assented to the acts of his agent...................Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess,” Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646. See also, Ozark Mutual Life Association v. Dillard, 169 Ark. 136, 273 S. W. 378.

But, say appellants, Scott and McHaney gave no proper notice to entitle them to a lien against Spring Oil Company, Inc. We do not agree for the reason that in the circumstances here, no notice was required since we are holding that the material and labor were furnished under an agreement with Powers, the owner’s agent, Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901.

While it is true that Willie Mack was not personally served with a summons, the record shows that he was made a defendant, and that the Spring Oil Company, Inc., as indicated, principally, if not entirely, owned by Willie Mack, was made a defendant, served with a summons on November 21, 1956 and filed a separate answer on January 2, 1957. Willie Mack was present and testified at the trial that he did not agree that Spring Oil Company would pay the accounts here if Powers did not. We think it clear, therefore, that Willie Mack knew, or must have known of the proceedings in ample time to have made any defense that he might have desired and in the circumstances, no summons on him was required. We said in Woods v. Quarles, 178 Ark. 1158, 13 S. W. 2d 617, ‘ ‘ One who is aggrieved by a judgment rendered in his absence must show, not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense. ’ ’ (Citing many cases)

Finding no error, the decree is affirmed.

George Bose Smith & McFaddin, JJ., dissent.