text:
    Fred DUDLEY v. LITTLE RIVER COUNTY, Arkansas, et al.
    90-299
    805 S.W.2d 645
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      Honey & Honey, by Charles L. Honey, for appellant.

      Bishop & Bishop; Mickey Buchanan', and Dowd, Harrelson, Moore and Giles, for appellees.
   Tom Glaze, Justice.

This is an illegal exaction case brought by Fred Dudley, a taxpayer and resident of Little River County, against the former and current county judges of Little River County and the quorum court. Hoye Horne served as the county judge from 1975 to 1988, and Clyde Wright serves now. In his complaint, Dudley, appellant, made the following charges against the county judges: 1) free gravel was provided to certain citizens of Little Rock County using county owned trucks and county employees; 2) the county charged less than the fair market value for gravel it sold to individuals; 3) gravel was illegally sold on credit; and 4) free grave-digging services were provided for private funeral homes for burials of county citizens using county employees and equipment. Appellant requested an injunction to prohibit any further illegal use of county property, labor and services. Further, the appellant asked that the county judges he held personally liable to the county for the fair market value of all property and services misappropriated plus punitive damages and attorney’s fees.

The chancellor found that neither Horne nor Wright gave away county-owned gravel to private interests. But, the chancellor found that the county improperly sold gravel without following the procedures set forth in Ark. Code Ann. § 14-16-105 (1987). The chancellor prohibited County Judge Wright from making any further gravel sales without fully complying with § 14-16-105. The chancellor found there were no damages because the county judges had sold the gravel for its fair market price. In addition, the chancellor found that the county judges improperly sold gravel on credit and enjoined County Judge" Wright from making any further gravel sales on credit. As to the grave-digging, the chancellor found that the quorum court knew about the grave-digging services, and thus the county judges acted in good faith and were in substantial compliance with Ark. Code Ann. § 14-14-802 (1987). Because no damages were awarded, the chancellor denied the appellant’s request for attorney’s fees.

The appellant appeals from these rulings, and specifically argues that the chancellor erred in failing to award damages. We partially agree, and therefore affirm in part and reverse and remand in part.

First, we affirm the chancellor’s finding that the county judges did not give away free gravel to private interests. The evidence showed that the county provided gravel and did road work on all county roads, bus and mail routes. In addition, the county put in culverts to drain water off the county roads. But, the appellant alleged that the county also provided free gravel and road work to individuals for private roads and driveways. The appellant’s main witness against the county on this issue was a former county employee, James Johnson. Johnson prepared a list of 86 private individuals who received gravel from the county, however, on cross-examination, Johnson admitted that some of these may have been on county roads, bus or mail routes and most importantly, that he did not know if anyone was billed for the gravel. Further, he admitted that it was the county’s practice to spread excess gravel into the adjoining drives rather than load it back into the truck. The chancellor expressly questioned the credibility of Johnson, because Johnson had been fired by the county judges twice, once for drinking and once for lying.

While Donny Waldron, a taxpayer, testified that he personally saw gravel at each of the locations indicated by Johnson, he also was unable to say whether anyone was billed for the gravel or if the locations were on county roads, mail or bus routes. Both county judges Wright and Horne denied giving gravel away free and attributed the names on the appellant’s lists to being either county roads, bus routes, mail routes, excess gravel already unloaded at the site and left over from a county job, or culverts dug on private property to protect county roads from water damage.

We do not set aside a chancellor’s findings of fact unless they are clearly against the preponderence of the evidence. ARCP Rule 52(a). And, we give due regard to the chancellor’s opportunity to judge the credibility of the witnesses. From reviewing the testimony briefly set out above, we cannot say that the chancellor’s finding was clearly against the preponderance of the evidence. Even if we were to accept Johnson’s list as credible, he was unable to say that the gravel was given away to individuals.

We also affirm the chancellor’s finding that no damages resulted from the county judges’ sales of gravel. The proper procedure for a county to follow when selling any real estate or personal property is set out in Ark. Code Ann. § 14-16-105 (Supp. 1989). Under this provision, the county judge is required to enter an order in the county court describing the commodity to be sold, giving the reason for sale, and directing the county assessor to have such commodity appraised at its fair market value. The property is not to be sold for less than three-fourths of the appraised value. While the chancellor found that the county judges sold gravel without complying with § 14-16-105, he awarded no damages. Instead, he enjoined County Judge Wright from making any further gravel sales without complying with the statute.

To support his claim for damages, the appellant introduced evidence from Bobby Smith. Smith is in the sand and gravel business in Howard County. He testified that the price of gravel was based on the cost of gravel at the pit. Based on this figure, Smith testified that the fair market value of gravel was $1.50 a yard loaded and $6.00 a yard delivered. While Smith testified that gravel cost 350 a yard in Howard County, he did not know the price of gravel at the pit in Little River County. Further, Smith admitted that the gravel he sold in Howard County was a better quality than a red clay gravel used by Little River County. Former County Judge Horne testified that until 1987, the county paid 200-250 a yard for gravel, and thereafter Weyerhaeuser gave gravel to the county free of charge. Horne testified the cost of a yard of gravel loaded was 500 and, the cost of a yard of gravel delivered was $2.00. The county charged 500 per yard for gravel loaded onto individual trucks and $2.00 per yard if delivered by the county to the individual.

The chancellor found that the county neither lost nor made money from the gravel sales. Again, we believe the appellant’s proof falls short of showing that the chancellor’s finding is clearly erroneous. The appellant failed to put on evidence to prove that the fair market value for Little River County gravel was more than 500 per yard loaded and $2.00 per yard delivered.

Next, we address appellant’s argument that the chancellor erred in failing to award damages for the illegal extension of credit by the county judges. A county cannot lend its credit for any purpose. Ark. Const. art. 16, § 1. The 1987 audit of Little River County revealed that the county sold gravel on credit. The Legislative Audit Administrator testified that as of August 16, 1988, there was a balance due the county of $2,930.50 from the gravel sales on credit. The audit report recommended that the prosecuting attorney in connection with the county judge collect all unpaid amounts due. County Judge Horne sent out letters on August 2, 1988, requesting payment from individuals who had received gravel. Horne testified that every effort had been made to collect the outstanding debt and that a list of people and the amount owed had been turned over to the prosecuting attorney. He stated that he did not know if any lawsuits had been filed.

We disagree with the chancellor that the taxpayers are not entitled to damages on this issue. Here, the above evidence shows that the county judges improperly extended credit and because of this extension of credit, the county government has uncollected money due on past sales. While we believe that the taxpayers are entitled to recover the amount of money still owed to the county by the extension of credit, we conclude that the record is unclear as to the amount still left outstanding. For example, the prosecuting attorney may have collected some of this amount. Because the record is unclear as to the amount of money still unpaid, if any, we remand the case back to the chancellor for a hearing to determine the amount. See Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990).

Further, we disagree with the chancellor’s finding that the Little River County Quorum Court knew of the county’s free grave-digging services, and therefore the county judges were in substantial compliance with Ark. Code Ann. § 14-14-802 (1987). Under this statutory provisions, a county government, acting through a quorum court, may provide through an ordinance for the establishment of any service or performance of any function not expressly prohibited by the Arkansas Constitution or by law. One of the services listed in cemetery, burial and memorial services. Ark. Code Ann. § 14-14-802(b)(2)(C)(ii).

It is undisputed that no ordinance existed authorizing the county judges to provide grave-digging services. The parties stipulated that 684 graves were dug between 1983 and 1988. County Judge Horne testified that the quorum court was aware of and approved of the grave-digging services. Besides Horne’s testimony, we see no indication from the record that the quorum court knew of the grave-digging services. Nonetheless, if the quorum court had known of the grave-digging services, it took no action by ordinance or otherwise to authorize such services; therefore the providing of these services was invalid under §14-14-802. Appellant offered testimony by a funeral home employee to establish the cost of digging a grave at $80.00 to $105.00. County Judge Horne testified that it cost the county only $8.00 to dig a grave. We usually decide chancery cases de novo. However, because we already must remand the case regarding the damages, if any, for the unlawful extension of credit issue involving the sales of gravel, we direct the chancellor to determine at the same time the proper amount of damages to be awarded the taxpayers for the grave-digging services.

Finally, we briefly address two additional arguments that will recur on remand. First, the parties presented the question to the chancellor below as to whether the five-year or three-year statute of limitations applies, but because no damages were awarded, the chancellor did not rule on the issue. Because damages will be awarded on remand, we must address that issue.

The parties apparently agree that the three-year statute of limitations should apply unless there has been intentional fraud, corruption, or willful diversion in the payment of money — then the five-year statute of limitations applies. See Munson v. Abott, 269 Ark. 441, 602 S.W.2d 649 (1980). From the record before us, the appellant has not shown intentional fraud, corruption or willful diversion in the providing of these services. We believe the record clearly shows that the judges thought they were providing a needed service to the community. Apparently, the practice of providing such services was widely known in the county, and while appellees could have lawfully performed these services by complying with § 14-14-802, they failed to do so. Although appellees’ actions failed to meet the dictatees of § 14-14-802, such failure falls short of showing they acted fraudulently in providing the grave-digging services. Accordingly, the chancellor should apply the three-year statue of limitations when deciding damages on remand.

Second, the parties’ briefs touch on the lower court’s failure to award attorney’s fees to the appellant, but they seem to agree that issue became moot when the chancellor awarded no damages. See City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). Since damages will now be awarded, the chancellor can consider appellant’s request for attorney’s fees.

For the reasons stated above, we affirm in part and reverse and remand in part.


source: Caselaw Access Project

author: Tom Glaze Justice.

license: Public Domain

text:
    Billy R. REVELS v. Phillip B. KNIGHTON and Lenora A. Knighton
    91-41
    805 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      William Randal Wright, for appellant.

      Honey & Honey, by: Marc Honey, for appellees.
   Tom Glaze Justice.

The Hempstead County Circuit Court, sitting as a jury, found that the appellant destroyed trees on property owned by appellees. The court held the appellant’s acts violated Ark. Code Ann. § 18-60-102 (1987), and under the authority of that statute, it awarded appellees treble damages in the amount of $5,220.00. Appellant appeals the lower court’s decision, contending the court erred in awarding replacement costs of the trees as damages and in trebling the damages awarded.

At trial, the parties offered damage evidence regarding the appellant’s removal of some large pine and oak trees growing on the appellees’ property. Appellees’ expert, over appellant’s objection, was allowed to testify to the replacement costs of those trees (as shade trees), saying that the oaks were worth $200.00 to $700.00 and the pines bore a value of $300.00 to $600.00. Appellant’s expert gave a value of $25.00 per tree based upon the trees’ commercial or area sawmill prices. The parties’ witnesses generally agreed that three to four oaks and three to four pines had been destroyed and removed. The trial court awarded appellees $ 1,500.00 in damages before trebling the amount under § 18-60-102. The court added $720.00 for costs the appellees apparently incurred for removing brush left from the appellant’s bulldozer work in removing the trees. The $720.00 amount is not questioned in this appeal.

In the recent case of Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), we adopted the rule that where ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. Here, appellees offered evidence reflecting that they intended to use the property, bearing the oak and pine trees that were removed, as a trailer park, and their expert opined that the trees, as shade trees, were a plausible use for such a park.

The Worthington case did not involve § 18-60-102 — the statute relied on by appellees — but that distinction requires no different result. Section 18-60-102(a) provides that if any person injures or destroys any tree growing or placed for the use of shade or timber on the land of another in which such person has no right or interest, the person so trespassing shall be liable to the injured party for treble the value of the “thing so damaged” with costs. While appellant argues that the only proper damages in this case should be the diminution in value to the property resulting from the damage, we have not read § 18-60-102 so narrowly. In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), this court stated that there are two elements of recovery allowable under the statute (then Ark. Stat. Ann. § 50-105 (Rep. 1971)). According to Stoner, a party can recover either the value of the trees or the damage to the market value of the land, i.e., diminution in value. See also Laser v. Jones, 116 Ark. 206, 172 S.W. 1024 (1915). Further, this court has also stated that, when considering damages under the statute, it is proper to consider any use to which the damaged property may be adapted. See Floyd v. Richmond, 211 Ark. 177, 199 S.W.2d 754 (1947); Laser, 116 Ark. 206, 172 S.W.2d 1024. Consistent with our understanding of the law and the facts in this case, we believe the trial court was clearly correct in awarding replacement costs for the trees destroyed by the appellant.

Appellant next questions the treble damages awarded by the trial court. Although § 18-60-102(a) provides for treble damages, appellant directs our attention to § 18-60-102(c) which, in essence, provides that if the defendant (appellant here) had probable cause to believe the land on which the trespass occurred was his own, then the plaintiff (appellees) shall recover single damages only. In construing this statutory language, we have said that our cases make clear that a necessary element to justify treble damages is intent of wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Calloway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964).

In considering appellant’s intent as it bears upon appellees’ entitlement to treble damages, we review the evidence and all reasonable inferences therefrom in the light most favorable to the appellees and reverse only if the trial judge’s decision is clearly erroneous. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). In doing so, the record reflects that the appellant hired a bulldozer owner to clear appellant’s land. During his clearing the land, the owner of the bulldozer, Weldon McDowell, realized that, in following appellant’s directions, he was going to cross appellees’ property line, so he asked appellant to consult appellees concerning the exact line location. When appellant discussed the matter with appellees, appellees told appellant that he was “getting over on [appellees’] property,” and asked him if he would wait two or three days so a survey could be taken to resolve any questions. Appellant declined, saying he spent all of the money on surveys and clearing that he was going to spend. Although appellant apparently had obtained an earlier survey of this property, he never referred to it before instructing McDowell to continue with the work.

In sum, appellees and McDowell had informed appellant that, if McDowell continued to clear the brush and trees as appellant directed, McDowell would be working on appellees’ property. Confronted with this information and warnings, appellant still had McDowell complete the work as instructed. On these facts, the trial court, in trebling damages, found the appellant had been fully apprised of the property line claim of appellees before the damages were incurred, yet he proceeded to have his bulldozer operator cross the line to clear property anyway. We are unable to say the trial court was clearly erroneous.

We affirm.

       There was some evidence that the appellees purchased the property with the trees for $150.00 and the property after the trees’ removal was worth $600.00. In other words, appellant claims the appellees’ market value of the property has actually increased and appellees bore no loss from the appellant’s actions.


author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    Raymond SANDERS v. STATE of Arkansas
    CR 90-223
    805 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991
    [Rehearing denied April 22, 1991.]

      Phyllis J. Lemons and Arthur L. Allen, for appellant.

      Mary B. Stallcup, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.

       Hays, Glaze, and Brown, JJ. would grant rehearing.

   Donald L. Corbin, Justice.

Appellant, Raymond Sanders, was convicted of capital murder by a Hot Spring County jury on March 17, 1990. He appeals from the judgment sentencing him to life imprisonment in the Arkansas Department of Correction. He raises five issues as grounds for reversal: there was not sufficient evidence of the underlying felony to support a capital murder conviction; the trial court erred in denying his motion for continuance, in denying his motion to suppress in-custody statements, in refusing to admit testimony as an exception to the hearsay rule, and in refusing to give a tendered jury instruction. We find the arguments regarding the in-custody statements and the tendered jury instruction meritorious, and reverse the judgment of conviction. We discuss appellant’s other asserted issues only to the extent necessary to avoid error if the case is retried.

I.

THE TRIAL COURT ERRED IN THAT THERE WAS INSUFFICIENT EVIDENCE OF ROBBERY AS THE UNDERLYING FELONY TO SUPPORT A CAPITAL MURDER CONVICTION.

Appellant did not move for a directed verdict at the close of the case. Ark. R. Crim. P. 36.21 (b) provides that a failure to move for a directed verdict at both the conclusion of the evidence presented by the prosecution and at the close of the case, constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Appellant, by failing to move for a directed verdict at the close of the case, waived any challenge to the sufficiency of the evidence. See also Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989).

II.

THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT INTO EVIDENCE PROFFERED TESTIMONY OF KENNETH TRAYLOR AS AN EXCEPTION TO THE HEARSAY RULE.

Appellant sought to admit into evidence, as an exception to the hearsay rule under Rule 804(b)(3), statements his co-defendant, Byron Hopes, allegedly made to Kenneth Traylor sometime in August 1989. The trial judge in chambers heard the testimony of Mr. Traylor, which was to the effect that Mr. Hopes sometime around August of 1989 approached him about robbing the same bootlegging operation that was the target of the robbery involved in this murder trial. The court also heard the testimony of Byron Hopes in chambers; Mr. Hopes, in exercising his fifth amendment privileges, testified only for the purpose of the hearing and only for the limited question of whether or not he ever had a conversation with Mr. Traylor concerning robbing the deceased. Mr. Hopes denied having ever had such a conversation with Mr. Traylor. The court ruled that portion of Mr. Traylor’s testimony inadmissible, stating that “Number 1, the witness is not unavailable; Number 2, if the. witness were unavailable, the testimony offered by Kenneth Traylor is not sufficiently reliable to allow it as an exception to the hearsay rule.”

The relevant portion of Ark. R. Evid. 804(b) provides the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability. . .that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

For the alleged August 1989 statement of Byron Hopes, the declarant, to be admissible through the testimony of Kenneth Traylor it must be shown that: 1) the declarant is unavailable; 2) the statement at the time of its making “so far tended to subject him to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and 3) corroborating circumstances clearly indicate the trustworthiness of the statement. See United States v. Riley, 657 F.2d 1377 (1981); Williford v. State, 300 Ark. 151, 777S.W.2d 839 (1989). Absent an abuse of discretion, this court will not reverse a trial court’s ruling on the admissibility of a statement against penal interest. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996 (1980).

The court when making its ruling on this matter said:

[E]ven if Mr. Hopes were unavailable as a witness, that that testimony would not be admissible for the reason that it is too remote in time; for the reason that it is not sufficiently established as reliable; for the reason that it is testimony offered by Kenneth Traylor, who is a penitentiary inmate doing sixty years, having been recently convicted in this court as an habitual offender and who had three or more prior offenses which were convictions from this court, all of which the court takes judicial notice.

Whether Byron Hopes was unavailable for purposes of considering the admissibility of his statement, or whether it was “against his penal interest,” clearly the trial court found the corroborating circumstances did not indicate the requisite trustworthiness of the statement. Based on the foregoing, we cannot say the trial court abused its discretion in now allowing the statement as an 804(b)(3) exception to the hearsay rule.

III.

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS APPELLANT’S IN-CUSTODY STATEMENTS.

Investigators from the Hot Spring County Sheriffs Department stopped appellant and his co-defendant, Byron Hopes, near the scene of the shooting on the afternoon of December 31,1989. One of the investigators recognized appellant as the subject of an outstanding arrest warrant for felon in possession of a firearm. Appellant was arrested on the outstanding warrant and Mr. Hopes was arrested for drug paraphernalia and having alcohol in the car. Both men were taken to the Hot Springs County Sheriffs Office where they were jailed. That same afternoon appellant was taken to Investigator Henry Efird’s office, where he signed a statement of rights and gave a statement at 4:16 p.m. On January 2,1990, at 6:5 9 p.m. appellant signed another statement of rights, and at 9:00 p.m. gave another statement.

Appellant in the December 31,1989 statement said, “get the Sheriff and the Chief in here man and I want to tell you something man really heavy man.” He continued by saying that Mr. Hopes had done something serious. He also mentioned something about a murder weapon. When Investigator Efird questioned appellant regarding the murder and the gun, appellant replied, “[m]an, I want my New Years man before I do all this.” Investigator Efird replied, “Raymond if you can’t help me man I’m not fixing to call the Sheriff in here.” During the course of the interview, Sheriff Cook joined them. Appellant told Investigator Efird and Sheriff Cook that Byron Hopes told him he killed somebody.

The following is a portion of the interview:

Cook: Where is that gun at?
Sanders: _didn’t say anything about a New Years, will you try to let me have a New Years?
Cook: Well, I don’t know what I can do right now.
Sanders: I bet I’m going to have to be locked up.
Cook: I don’t know, where’s the damn gun. If we could find that gun we might do something about —
Sanders: I know where he lives man, I, you know, I’m going to the pen the 12th man for 20 or 30 years.
Cook: I don’t know about that. I doubt that. We can solve something, that he’s hurt somebody it would be to your advantage, I’ll guarantee it.
Sanders: Can I have my New Years?
Cook: We’ll talk to you about that.

In the remainder of this statement appellant relates information about his alleged conversation with Mr. Hopes.

The interview conducted January 2, 1990, began with Investigator Efird telling appellant they were going to talk “about a homicide involving Mr. Byron Hopes and yourself. The killing of a Frederick LaSalle.” The following is a portion of that interview:

Efird: Now, you told me that you wanted a New Year’s furlough.
Sanders: Right, I did.
Efird: And that if we would give you a New Year’s furlough, you could put us on to where a murder weapon was?
Sanders: Right where I believed —
Efird: Where you believed the murder weapon was?
Sanders: Right.

Appellant claims the two statements were not knowingly, voluntarily, and intelligently made, and, therefore, should have been suppressed. He contends that when he made the first statement he was under the influence of alcohol and drugs, and that Sheriff Cook and Investigator Efird induced him into making it by promising him his New Year’s Eve in exchange for the information.

Custodial statements are presumed to be involuntary. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). On appeal the burden is on the state to show that the confession was made voluntarily, freely, and understanding^, without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). A statement induced by fear or hope of reward is not voluntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In determining whether a custodial statement is voluntary, we make an independent review of the totality of the circumstances and will reverse only if the trial court’s findings are clearly against the preponderance of the evidence. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Davis, supra.

Looking at the statements of the officers, it appears appellant gave his first statement in anticipation of being rewarded with a “New Year’s furlough.” Officer Efird in the second statement even referred to that part of the first interview involving a furlough in exchange for information about where the murder weapon could be found. Appellant’s first statement appears to have been induced by a hope of reward. Therefore, it was not voluntary and should have been suppressed.

IV.

THE TRIAL COURT ERRED IN REFUSING APPELLANT’S TENDERED JURY INSTRUCTION AMCI 1502 WHICH SET OUT THE FELONY MURDER PROVISION OF THE FIRST DEGREE MURDER STATUTE.

Appellant and Byron Hopes on January 3, 1990, were charged with capital murder, a violation of Ark. Code Ann. § 5-10-101 (Supp. 1989), in that on December 31, 1989, they did unlawfully commit aggravated robbery, and in the course of and in furtherance of said felony, or in immediate flight therefrom, they caused the death of a person under circumstances manifesting extreme indifference to the value of human life; the defendants allegedly shot Frederick M. LaSalle, Jr. at least four times, beat and killed him for the purpose of stealing money, whiskey, and beer, and thereafter did commit the theft of property. While the court at trial instructed the jury on both capital murder and first degree murder, it refused to give appellant’s tendered first degree murder instruction. The following, Court’s Instructions Nos. 16, 19, and 20, are the instructions which were given on capital murder and first degree murder, respectively:

COURT’S INSTRUCTION NO. 16
(AMCI 1501)
Raymond C. Sanders is charged with the offense of Capital Murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt.
First: That Raymond C. Sanders acting alone or with one or more persons committed the crime of robbery, and;
Second: That in the course of, and in furtherance of that crime, Raymond C. Sanders or a person acting with him, caused the death of Frederick LaSalle under circumstances manifesting an extreme indifference to the value of human life.
COURT’S INSTRUCTION NO. 19
(AMCI 302)
If you have a reasonable doubt of the defendant’s guilt on the charge of Capital Murder, you will then consider the charge of Murder in the First Degree.
COURT’S INSTRUCTION NO. 20
(AMCI 1502)
To sustain this charge, the State must prove beyond a reasonable doubt:
That Raymond C. Sanders or an accomplice caused the death of Frederick LaSalle with the premeditated and deliberated purpose of doing so.

The following is appellant’s proffered instructions regarding first degree murder:

DEFENDANT’S REQUESTED INSTRUCTION NO. 1
(AMCI 1502)
Raymond Sanders is charged with the offense of murder in the first degree. To sustain this charge, the State must prove the following things beyond a reasonable doubt:
First: That Raymond Sanders acting alone or with one or more persons committed or attempted to commit robbery; and
Second: That in the course of and in furtherance of that crime or attempt or in immediate flight therefrom, Raymond Sanders or a person acting with him caused the death of Frederick LaSalle under circumstances manifesting extreme indifference to the value of human life.

Appellant argues the trial court erred in refusing to give his requested instruction, AMCI 1502, because he was never charged with capital murder under the premeditation and deliberation provision but only under the felony provision. He contends the appropriate lesser included offense to capital felony murder is first degree felony murder. We agree.

When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of the included offense, an instruction on a lesser included offense should be given, and it is reversible error to fail to give such instruction when warranted. Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983).

This court, in Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990), was faced with a similar situation. The appellant in Hill was charged with violations of sections 5-10-101 (capital felony murder); 5-12-102 (Supp. 1989) (robbery); and 5-36-103 (Supp. 1989) (theft of property). Prior to the submission of the case to the jury, the appellant tendered a jury instruction on. felony murder in the first degree as a lesser included offense of capital felony murder. The proffered instruction tracked the provisions of Ark. Code Ann. § 5-10-102(a)(1) (Supp. 1989), the first degree felony murder statute. However, the instruction on first degree murder which the court gave permitted the jury to convict the appellant of first-degree murder upon a finding of “premeditation and deliberation,” and followed Ark. Code Ann. § 5-10-102(a)(2) (1987) The appellant was convicted of first-degree murder, acquitted of the charge of robbery, and found guilty of misdemeanor theft of property. We found the proper instruction was refused and stated:

Though Ark. Code Ann. § 5-10-101 and § 5-10-102(1) admittedly overlap, this circumstance does not render either statute constitutionally suspect in its application. Penn v. State, 284 Ark. 234, 681 S.W.2d 304 (1984); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). Indeed, we have said that when capital felony murder is charged under Ark. Code Ann. § 5-10-101, first-degree murder is a “lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first-degree murder is required. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986). The proper instruction in this instance would have been the first degree felony murder instruction as authorized under the provisions of Ark. Code Ann. § 5-10-102(1)—the very form of instruction tendered by the appellant and refused by the court.

Hill, 303 Ark. at 468-69, 798 S.W.2d at 69. Because the appellant was convicted of first degree murder based on a finding of a premeditated and deliberated purpose, a crime with which he had not been charged, we found the omission of the proper instruction to have been prejudicial and violative of his due process rights.

In the case at bar, as in Hill, supra, the proper instruction, appellant’s tendered instruction tracking section 5-10-102(a)(1), was refused. That being determined, the next question to be addressed is whether the omission was prejudicial and violative of appellant’s due process rights. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

As stated before, capital murder, section 5-10-101(a)(1), and first degree murder, section 5-10-102(a)(1), are proven by the same evidence, Hill, supra, and where the accused is charged with homicide in the course of committing one of the felonies named in section 5-10-101 (a)(1), the judge must also instruct on first degree murder, section 5-10-102(a)(1). Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758(1986). In addition, we have held in cases where the statues overlap and both instructions are required, the jury may refuse consideration of both the death penalty and life without parole by returning a guilty verdict as to the charge of murder in the first degree. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). The trial court, by refusing to give the tendered instructions, took this option away from the jury. Although the jury convicted appellant of capital murder, it chose the lesser of the two possible sentences. Because both capital murder and first degree murder in this situation require proof of the same elements, there is a rational basis for a verdict acquitting appellant of capital murder and convicting him of first degree murder; had the third option been available to the jury, the possibility exists that it would have convicted appellant of first degree murder.

Based on the foregoing, we believe appellant was prejudiced by the omission of the proper instruction. His judgment of conviction must, therefore, be reversed and the case be remanded for a new trial.

Hays, Glaze, and Brown, JJ., concur in part; dissent in part.

Steele Hays, Justice,

concurring in part, dissenting in part. I agree with the majority with respect to the first degree murder instruction but I do not agree that appellant’s statements should have been suppressed. In determining whether an in-custodial confession has been induced by a promise of reward, we look to the totality of the circumstances. Davis v. State, 275 Ark. 264, 630 S.W.2d 21 (1982). Furthermore, it is necessary that the accused rely on such promise, State v. Hall, 586 P.2d 1266 (1978); State v. Morris, 574 P.2d 350 (Ore. App. 1978), and it must be the police, rather than the accused, that propose the reward. State v. Harwick, 552 P.2d 987 (Kan. 1976).

Applying those tenets, the proof in my estimation fails to warrant the suppression of appellant’s statement. First, it was appellant who instigated the interview with the officers; second, he indicated at the outset that he wanted to give the officers some “heavy” information about the murder; third, his statement came, not at the end of a lengthy interrogation [see, e.g., Brown v. State, 198 Ark. 920, 132 S.W.2d 15 (1939)], but after some ninety minutes; fourth, there is no proof of an express or implied promise that a furlough would be given if he made a statement, his motion to suppress contains no such allegation nor did he himself make that contention to the trial court. Only two witnesses, Officer Henry Efird and Sheriff Doyle Cook, testified at the suppression hearing and both categorically denied that any promise was made to the appellant:

(Officer Efird):
Q. Now, Raymond was expecting that if he talked to you, you were going to work some kind of deal where he could get out of jail for New Years, wasn’t he?
A. No, sir. I never did lead Mr. Sanders to believe that. [My emphasis.]
(Sheriff Cook):
Q. Do you remember whether you made any promises to the defendant that in exchange for information, you would do something for him or give him something?
A. No, sir, I didn’t make no promises.
Q. Was he led to believe by you that if he were to give you information or a statement or anything of that effect, you would do something for him. For example, let him have New Year’s Day off?
A. No, sir. I wasn’t in no position to make any promises.
Q. Did you make a promise of any kind, Sheriff?
A. No, sir. [My emphasis.]

Since appellant did not testify at the suppression hearing, that testimony stands unrefuted and thus the requirement that the accused establish that he relied on an express or implied promise of reward is wholly lacking; fifth, it was the appellant who solicited the furlough, rather than the officers proposing it as an inducement; sixth, the appellant gave the statement after having had his Miranda rights fully explained, which he acknowledged verbally and in writing; seventh, appellant was no stranger to police procedures, having had considerable experience with law enforcement. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

The trial court heard the evidence as to the voluntariness of the appellant’s in-custodial statement and observed the demeanor of the only witnesses who testified. I suggest his finding was not clearly erroneous and should not be disturbed. Davis v. State, supra and Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

Glaze and Brown, JJ. join.

       Ark. Code Ann. § 5-10-102(a)(2) was amended by Act 856 of 1989 to eliminate any “premeditated and deliberated” purpose.


author: Per Curiam.

text:
    STATE of Arkansas v. Larry VAN PELT
    CR 90-275
    810 S.W.2d 27
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      Appellant, pro se.

      Paul N. Ford, for appellee.
   Per Curiam.

The appellant Larry Van Pelt was convicted of capital murder and sentenced to life imprisonment without parole. His attorneys Paul Ford and Kyle Hunter filed a timely notice of appeal in August 1990 and lodged the transcript with this court. On December 21, 1990, this court granted counsels’ motion for an extension of time to file the appellant’s brief, making the brief due for filing February 7, 1991. On January 24, 1991, the appellant Van Pelt tendered a pro se motion for permission to file a handwritten brief in the case. On February 1,1991, appellant requested permission to proceed pro se on appeal. On March 4,1991, counsel filed a motion asking to be permitted to withdraw as counsel. Both counsel and the appellant note that the trial court entered an order in December, well after the notice of appeal was filed, stating that the appellant had expressed the desire that counsel be discharged from the case. The trial court concluded that counsel were obligated to continue as attorneys-of-record in an advisory capacity until such time as appellant hired a new attorney. This order does not appear in the Table of Contents to the record lodged on appeal; but even if such a order were filed, it would have no effect since it was filed after the notice of appeal. Supreme Court Rule 11 (h) provides that once a notice of appeal is filed motions to be relieved as counsel must be addressed to this court.

A defendant in a criminal trial has the right under the sixth amendment to represent himself when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806 (1975). A criminal appellant pursing a first appeal as a matter of right may avail himself of the right to self representation provided that he makes the same voluntary and intelligent waiver of counsel that a defendant at trial is required to make. See Supreme Court Rule 8(d); see also Evitts v. Lucey, 469 U.S. 387 (1985). To enter a voluntary and intelligent waiver, the appellant must indicate in his motion to proceed pro se that at the least he is aware of the right to counsel and that he understands the advantages of being represented by counsel and the disadvantages of self-representation. It is the practice of this court to require an affidavit signed by the appellant who desires to proceed pro se which specifically sets out the waiver of right to counsel. If the appellant is incarcerated, the affidavit must bear the signature of the Attorney for Inmates attesting that the attorney has advised the appellant of the right to counsel and the advantages of counsel’s assistance and that appellant has elected to refuse the services of an attorney on appeal. See Gay v. State, 289 Ark. 236, 713 S.W.2d 232 (1986).

The pro se appellant should be aware before he elects to proceed pro se that pro se appellants receive no special consideration of their argument and are held to the same standard for brief form as a licensed attorney. See Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986). The pro se appellant cannot later claim that he was denied effective assistance of counsel. Faretta, 422 U.S. 806.

The motion filed by the appellant here contains no statement that he is fully aware of his right to representation by counsel and the advantages of such representation. Furthermore, no affidavit has been received from him pertaining to waiver of counsel. Since it cannot be ascertained from appellant’s motion if he has made an intelligent waiver of his right to counsel, his motion will be denied until such time as he files a subsequent motion in which he states that he can abide by the rules of procedure, including the rules which govern brief form. He must further attach to the motion an affidavit refusing services of an attorney on appeal. Gay, 289 Ark. 236, 713 S.W.2d 232 (1986).

Because appellant has not made a proper waiver of his right to counsel, the motion to relieve the attorneys appointed in this case is denied. We direct counsel to submit an appellant’s brief in the manner described in our Rule 11(g), and we extend the time for filing the appellant’s initial brief with the clerk’s office to April 22, 1991. Upon filing the brief (and reply brief, if any), counsel may submit their requests for attorney’s fees and costs if any.

Motions denied.

       A brief which is not in proper form is subject to being stricken pursuant to Supreme Court Rule 9. The pro se handwritten brief which has been tendered to this court by appellant lacks a jurisdictional statement, statement of the case, a statement of points and authorities, and an abstract or appendix.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Vic SNYDER v. Mahlon MARTIN, Director of the Arkansas Department of Finance and Administration; and Tommy Bailey, Manager of the Motor Fuel Tax Section of the Arkansas Department of Finance and Administration
    90-138
    806 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Craig Lambert, for appellant.

      David B. Kaufman, for appellees.
   Jack Holt, Jr., Chief Justice.

The narrow issue on this appeal is whether Ark. Const. art. 19 § 12 requires public access to certain information concerning motor fuel taxes.

On March 30, 1988, appellant, Vic Snyder, attempted to inspect corporate motor fuel tax records that included the monthly “shrinkage allowance” given to motor fuel distributors. The appellee, Tommy Bailey, who is the manager of the Motor Fuel Tax Section of the Department of Finance and Administration (DFA), denied Snyder access to these records on the basis of Ark. Code Ann. § 26-18-303(a), (c) (1987), which prohibits disclosure of corporate and individual tax returns and information.

Snyder brought suit against the appellees, Mr. Bailey and Mahlon Martin, Director of the DFA, seeking declaratory and injunctive relief and claiming that section 26-18-303 conflicts with Ark. Const. art. 19 § 12, which requires publication of all receipts and expenditures of public money. Both sides made motions for summary judgment. The trial court granted the appellees’ motion on the ground that the shrinkage allowances provided to motor fuel distributors were not “expenditures” within the meaning of art. 19 § 12, and found that Snyder was not entitled to injunctive relief since he had not demonstrated irreparable harm.

Snyder’s appeal is limited to the denial of declaratory relief in which he requested that the statute be declared unconstitutional. We affirm the chancellor.

Section 26-18-303, which operated to bar Snyder from inspection of the motor fuel tax records, states in pertinent part:

(a)(1) The director is the official custodian of all records and files required by any state tax law to be filed with the director and is required to take all steps necessary to maintain their confidentiality.
(2) (A) Except as otherwise provided by this chapter, the records and files of the director concerning the administration of any state tax law are confidential and privileged. These records and files and any information obtained from these records or files or from any examination or inspection of the premises or property of any taxpayer shall not be divulged or disclosed by the director or any other person who may have obtained these records and files.
(B) It is the specific intent of this chapter that all tax returns, audit reports, and information pertaining to any tax returns, whether filed by individuals, corporations, partnerships, or fiduciaries, shall not be subject to the provisions of 25-19-101 et seq.
* * * *
(c) The provisions of this section shall be strictly interpreted and shall not permit any other disclosure of tax information concerning a taxpayer, whether the taxpayer is an individual, a corporation, a partnership, or a fiduciary, that is contained in the records and files of the Director of the Department of Finance and Administration relating to income tax or any other state tax administered under this chapter. (Emphasis added.)

Snyder contends that this statute directly conflicts with art. 19 §12, which provides:

An accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time be published as may be prescribed by law.

We agree with the trial court that the term “expenditures,” contained in the above constitutional provision, does not include the shrinkage allowance permitted to the motor fuel distributors.

The allowance is provided by our Motor Fuels Tax Law, codified at Ark. Code Ann. § 26-55-201 through 1004 (1987). In accordance with section 26-55-230, which is similar to the procedure utilized in a number of other states, a distributor reports the total number of gallons of motor fuel received into the state during the previous calendar month to the Motor Fuel Section of the DFA. From the amount of gasoline fuel received, the distributor deducts the number of gallons of fuel sold, as provided in section 26-55-230(a)(1). After these deductions have been subtracted, the distributor is allowed to deduct an additional 3 % of the first 1,000,000 gross taxable gallons to cover “evaporation, shrinkage, and the losses resulting from unknown causes, regardless of the amount thereof, and the cost of collection.” This number is then deducted from the gross taxable gallons, and the remainder is multiplied by the appropriate tax rate to determine the motor fuel tax to be remitted by the distributor.

In examining the Motor Fuels Tax Law, we observe that this allowance is a deduction and, in fact, is labelled as such in the Computation and Payment of Tax statute, section 26-55-230. The fuel tax is placed on the product in the hands of the distributors, not the retailers, and is remitted to the state after the distributors have taken their allowed deductions, including the 3 % shrinkage allowance. Simply put, the statute merely operates to reduce the amount of “property,” in the hands of the distributor, to be taxed and has nothing to do with collection of taxes from dealers.

“Expenditures” is not defined by our constitution, nor in our statutes or case law. Its broad meaning is any laying out or disbursement of money. See 35 C.J.S. Expenditure (1957). This implies the spending of money already in the state’s hands rather than the deduction of monies never counted as part of the state’s budget.

Although Snyder argues that this holding would exalt form over substance, we have said that where the language employed in the constitution is plain and unambiguous, every word should be expounded in its plain, obvious, and common acceptation. Merritt v. Jones, 259 Ark. 380, 533 S.W.2d 497 (1976); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.E.2d 426 (1983). Furthermore, it has long been the rule that all legislation is presumed to be constitutionally valid, and all doubt is to be resolved in favor of constitutionality. Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

We review chancery cases de novo on appeal and will not reverse a chancellor’s finding unless clearly erroneous. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). The chancellor’s finding that the deduction permitted by statute for “shrinkage allowance” was not an appropriation of public money within the framework of art. 19, § 12 was correct. It is merely a deduction, nothing more. Denial of Snyder’s motion for summary judgment, and the granting of the appellees’ motion, w. as proper. Summary judgment is proper when there is no genuine issue of material fact, as here, and when the moving party is entitled to judgment as a matter of law. Woods v. Hopmann Mach. Inc., 301 Ark. 134, 782 S.W.2d 363 (1990).

In a well-written dissent, the minority extrapolates various provisions of our Motor Fuels Tax Laws statutes and arrives at the conclusion that somehow, somewhere, fuel taxes are collected from the retailer. It may be true that these taxes are either passed on to, or perhaps ultimately collected from, other sources, after the distributor has paid the tax; however, the fact still remains that under our present code, the taxes are placed upon the product in the hands of the distributor and his records are protected under section 26-18-303. Furthermore, Ark. Code Ann. § 26-55-249 (1987), cited by the minority, is impliedly repealed by section 26-18-303.

Affirmed.

Hays, Glaze and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. The majority, I suggest, is incorrect when it says the Computation and Payment of Motor Fuel Tax statute (Ark. Code Ann. § 26-55-230) merely operates to reduce the amount of “property” in the hands of the distributor to be taxed, “and has nothing to do with collecting of taxes from dealers.” I also disagree with the majority’s conclusion that “the fuel tax is placed on the product (fuel) in the hands of the distributors, not the retailers, and is remitted to the state after the distributors have taken their allowed deductions, including the 3 % shrinkage [and collection fee] allowance.”

In making such statements, the majority opinion would lead the reader to believe that the amount of fuel sold to retailers has nothing to do with the amount a distributor retains for the collection of taxes. First, Tommy Bailey, Manager of the Department of Finance and Administration (DFA), related that the 3 % allowance is “understood as a credit in exchange for the distributor’s collecting the [fuel tax] from the retail merchant.” Bailey’s statement is supported by § 26-55-230(E), which specifically refers to cost of collection. Also, it is important to point out that a “retail merchant” falls within the definition of the term “dealer” as set out in the definition section of the Motor Fuels Taxes laws. See Ark. Code Ann. § 26-55-202(7) and (8) (Supp. 1989).

Next, the court’s inaccuracies can be illustrated or explained by an examination of how the state levies and collects motor fuel taxes. The parties agree that a 13.5 cent tax is levied on each gallon of motor fuel, which means all products commonly or commercially known or sold as gasoline. Distributors, as defined in relevant part under the Motor Fuels Tax Law, include any persons who are in the wholesale business offering for resale or delivery of motor fuels to dealers, consumers, or others in tanks of 200 gallons or more. § 26-55-202(7). These distributors are subject to state licensing and bonding laws that, generally stated, are to protect the state in the amount of the gasoline taxes the distributor is estimated to collect based upon the gallonage of motor fuel to be sold. Ark. Code Ann. §§ 26-55-213 to -228 (1987); e.g. see § 26-55-222(a)(2). Distributors must make a monthly report to the state that covers, among other things, the following:

1. The number of gallons of all motor fuel received by the distributor;
2. The number of gallons of motor fuel received by the distributor but deducted in accordance with provisions of Ark. Code Ann. § 26-55-230(a)(1)(C) or (D) in making any previous monthly report with respect to which motor fuel so deducted the tax payable has not been paid;
3. The number of gallons of motor fuel sold by the distributor during the preceding month and exempted under Ark. Code Ann. § 26-55-207(1) - (4) (1987).

Finally, and relevant to the specific issue posed in this appeal, state law provides that distributors are entitled to an allowance for the cost of collection of these motor fuel taxes. This allowance is also commonly referred to as an evaporation or shrinkage allowance. This allowance amount is based upon 3 % of the first 1.000. 000 gallons of motor fuel received by a distributor. See Ark. Code Ann. § 26-55-230(a)(l)(F) (Supp. 1989). The director of the DFA provides for the payment and collection of the motor fuel tax. Ark. Code Ann. § 26-55-230(c) (Supp. 1989).

Putting the foregoing into practice, let us assume distributor A received 2,000,000 gallons of motor fuel, but 500,000 gallons of it are exempt from the motor fuel tax because the distributor has those 500,000 for export to another state. Ark. Code Ann. § 26-55-207(2) (Supp. 1989). After deducting the 500,000, the distributor’s report reflects gross taxable gallons in the amount of 1.500.000. Distributor A, in completing its report, shows that, for its collection or shrinkage allowance, it is entitled to 3 % of the first 1,000,000, or 30,000 gallons, of the gross taxable gallons. After deducting the 30,000 gallons, 1,470,000 gallons remain upon which the state can expect to levy and receive taxes, viz., 1,470,000 x 13.5 cents = $198,450.00. For its shrinkage and collection efforts, the distributor gets a deduction amounting to $4,050.00, which is calculated by multiplying his 30,000 gallons by the 13.5 cent fuel tax levy.

The foregoing state statutes and procedures clearly reflect the distributor’s collection amount is based upon a distributor’s sales of motor fuel to dealers or consumers, and also dispels any idea that the fuel tax is merely placed on the motor fuel possessed by the distributor rather than fuel sold to retailers. Thus, the gallons of motor fuel received by a distributor eventually translates into public tax dollars paid by retailers. The distributor remits those tax monies to the state less the distributor’s allowance amount.

Undoubtedly, the tax monies remitted to the state and credited and retained as allowances by distributors are clearly public monies. Obviously, none of these proceeds would exist but for the state’s tax levying authority. See Ark. Code Ann. § 26-55-205 (Supp. 1989) (which in relevant part provides that the motor fuel excise tax is levied on each gallon of motor fuel sold in or used or purchased or used in this state). Even so, does the allowance received or credited to the distributor amount to a public “expenditure” as that term is used in Ark. Const. art. 19, § 12. That is the primary issue now before this court. The trial court (and this court) held such an allowance was not such a public expenditure, but I disagree.

Section 12 of Ark. Const. art. 19 provides for the disclosure of detailed statements of receipts and expenditures of public money. While that constitutional provision does not define the term expenditure, I certainly agree with the majority court’s definition that expenditure means any laying out or disbursement of money. However, I disagree with the majority’s misapplication of that term to the facts and law involved in this case.

In the present case, the statutory formula by which distributors receive their collection or shrinkage allowance is worded so as to avoid the usage of the term “expenditure” and admittedly that statutory scheme under the Motor Fuel Tax laws does not require distributors to pay all motor fuel taxes to the state so as to avoid, I suggest, the state having to remit a payment in turn for the allowance due and payable to the distributor. Nevertheless, regardless of how a distributor receives his allowance, that allowance, in part, is in payment for collection costs. In other words, the state has delegated to distributors its authority to collect (as well as account for) motor fuel taxes, and, by law, has provided a procedure by which the distributor is disbursed a percentage amount of the tax monies that pays the distributor for its cost of collection services. In my view, this allowance clearly is a lay out or disbursement of public funds as that term of expenditures is defined in the majority opinion. That being true, such allowances received by the distributor are public expenditures subject to the public disclosure provided for under Ark. Const. art. 19, § 12.

For clarity’s sake, I add that I do not believe a taxpayer’s income tax return is subject to review, nor do I understand appellant to request such. Appellant seeks only the inspection of those records pertaining to motor fuel taxes which have heretofore been subject to inspection, see Ark. Code Ann. § 26-55-249 (1987), and which I believe is required under the Arkansas Constitution for the reasons described above. Section 26-55-249 provides the records of the director of DFA pertaining to motor fuel taxes shall at all reasonable times be open to the inspection of the public with the approval of the director. This law has not been specifically repealed. Nor do I see it having been repealed impliedly by Ark. Code Ann. § 26-18-303, which the majority cites as prohibiting disclosure of the fuel tax (3 % allowance) information requested by appellant here.

The primary purpose of § 26-18-303 is to protect the confidentiality of tax returns and information they contain, not disbursements or expenditures the state has made of public monies. Any broader interpretation given § 26-18-303 would allow such information as public relations expenditures paid to public officials (or even their salaries) to be unavailable for inspection since those items would be reflected in tax returns.

In this respect, while not argued by the parties, I am convinced that § 26-55-249 is still operative and the motor fuel tax information now sought by the appellant is available for inspection subject to the DFA director approving the time and place for such inspection. But, regardless of whether § 26-55-249 controls the case, I am convinced this same fuel tax information is open to disclosure under Ark. Const. art. 19 § 12 as discussed above and that information, not tax returns, should be made available to the appellant.

For these reasons, I would reverse.

Hays and Brown, JJ., join this dissent.

       These provisions refer to the Freedom of Information Act. Section 25-19-105 (a) of the Act states that public records shall be open to inspection unless specifically excluded by the Act or “by laws specifically enacted to provide otherwise.”
      At the time of our decision in Ragland v. Yeargan, 288 Ark. 281, 702 S.W.2d 23 (1986), section 26-18-303 prevented disclosure of individual tax returns and information only. There, we held that where the legislature fails to specify any records that are to be excluded from inspection, privacy yields to openness. As amended, section 26-18-303 now clearly provides that both individual and corporate tax information is to be protected and there is thus no question, here, of conflict with the FOIA and a discussion of this section of the code is not necessary for our decision.

       Significantly, no statute or regulation assigns what part of the 3 % allowance is attributed to shrinkage or evaporation of fuel and what amount ofitpays(oris credited to) the distributor for its collecting the fuel taxes from retail merchants, as described by DFA Manager Tommy Bailey. Obviously, the percentage for evaporation has nothing to do with the actual resale of fuel to dealers, retailers or consumers except to recognize that the distributor should not be charged or credited with an estimated amount that will dissipate and therefore not be available for resale. That percentage, however, that is credited to the distributor as collection costs is based upon sales to dealers, or is already acknowledged by the DFA.


author: Robert H. Dudley, Justice.

text:
    Gene BASKIN and Stephanie Baskin v. Robert L. COLLINS, Bobby D. Wood, W. Wayne Scoggins, Stan W. Howard, and Sam H. Mathias
    91-57
    806 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Penix and Taylor, by: Stephen L. Taylor, for appellants.

      Cypert, Crouch, Clark & Harwell, by: James E. Crouch, for appellees.
   Robert H. Dudley, Justice.

The trial court found that the appellant-plaintiffs, who were purchasers of real estate, did not have a claim for misrepresentation, fraudulent concealment, or outrage and granted summary judgment for the appellee-defendants. We affirm the decision.

The facts, reviewed most favorably to appellants, are summarized as follows. Five men regularly drank coffee together at Jake’s Restaurant in Springdale. Early one morning a real estate agent phoned Wayne Scoggins, one of the five, and said he had a real estate listing which might interest Scoggins. Scoggins replied, “Why don’t you meet me down at Jake’s.” The real estate agent and Scoggins met in the presence of the other four regular coffee drinkers. Scoggins looked at the listing and said, “I’ll buy it.” The other four said, “We’ll buy it with you.” All five signed an offer and acceptance on March 23,1987. The purchase price was $125,000.00.

The real estate, on Highway 68 West in Springdale, had been used as a Gulf Oil service station and a six-bay car wash. Although all of the equipment was still in place, the five buyers did not intend to operate either the service station or the car wash. Instead, they intended to resell the property, or tear down the improvements and build an office building. Due to complications not material to this opinion, the transaction was not closed until May 10, 1988.

After May 10, the five owners held the property for resale. One of the five showed the property, without results, to two prospective purchasers. About the same time, probably September 1988, Scoggins was watching a newscast on commercial television and learned there was to be a new federal Environmental Protection Agency regulation that would affect service stations. On October 27,1988, Scoggins received from the Arkansas Department of Pollution Control and Ecology a “Notification of Underground Storage Tanks” form. It required the owner of underground tanks to give his name and address and the location of the tanks, but did not disclose the details of the federal regulation. Scoggins did not respond to the notice.

On November 8,1988, Scoggins contacted Gene Baskin, one of the plaintiff-appellants in this case, and told him about the property. Baskins owned a used car lot, Economy Motors, had previously operated service stations, and was looking for a service station/convenience store/car wash combination business. Scoggins said the five were asking $200,000.00 for the property but would take $180,000.00.

Baskins was familiar with the property. He and his wife, appellant-plaintiff Stephanie Baskins, immediately went to the property and looked at it. Baskins later met Scoggins and Sam Mathias, another one of the five owners, to go over the property. Mathias made no statement. Scoggins made all of the representations. Those representations, made during the negotiations, were as follows:

[From the deposition of Gene Baskins]:
A. Mr. Scoggins showed me that, and then he asked me about the condition of the station and he told me and I said, “What about the tanks?” And he said they were put in in ‘79, they were relatively new and there shouldn’t be any problem with it at all.
[From the deposition of Stephanie Baskins]:
A. I asked Mr. Scoggins what [it] would take to open up the gas station and the car wash.
(Thereupon, there was a brief interruption in the proceedings.)
CONTINUATION BY MR. ROY:
Q. Go ahead.
A. And Mr. Scoggins said it wouldn’t take a lot to open it.
A. He said that there should be no problem with the tanks.
Q. Now when is this? Is this at Taylor’s office?
A. No, sir. That statement was made in Economy Motors.
Q. Was that the same time when he said the tanks were put in in ‘79?
A. Was either the same time or during the course of the day.
Q. He said there’d be no problem with the tanks?
A. There would be no problem opening the gas station. And Mr. Scoggins was well aware of why we purchased that and we — not only myself but my husband — we’ve told him on several occasions that we wanted to open it as a gas station and reopen the car wash.

On November 9, 1988, the Baskins and the five owners signed an offer and acceptance for $175,000.00. On November 30, 1988, the transaction was closed and a deed was given. Immediately after the closing Scoggins said, “All you have to do is pump the fuel in and go to work.”

The Baskins subsequently learned about the federal regulation governing gasoline storage tanks. The regulation is to be phased in over an eight-year period commencing on October 26, 1990, see 40 C.F.R. § 280.91(d), and ending on December 22, 1998. See section 280.21. By the later date, corrosion as well as spill and overflow prevention equipment must be installed.

On January 19,1989, the Baskins filed suit against the five sellers and their wives. They alleged misrepresentation, fraudulent concealment, and the tort of outrage, and asked damages in excess of $500,000.00. After interrogatories had been answered and depositions taken, the trial court ruled the Baskins did not have a claim and granted summary judgment. The Baskins do not appeal that part of the summary judgment dismissing (1) the five wives from all counts of the complaint; (2) the five husbands from the claim of outrage; or (3) all parties from the claim for punitive damages. The sole issue appealed is whether the trial court erred by dismissing Scoggins and the other four sellers on the claim for deceit.

The elements of the cause of action for deceit are as follows:

(1) A false representation made by the defendant; ordinarily, one of fact;
(2) The defendant knows that the representation is false or he does not have a sufficient basis of information to make it; that is, scienter;
(3) The defendant intends to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation;
(4) The plaintiff justifiably relies upon the representation;
(5) The plaintiff suffers damage as a result of the reliance.

See M.F.A. Insurance Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981).

The Baskins contend that there are facts or inferences which tend to show there is a material dispute of fact as to all five elements. We need examine only the first element, the requirement of a false representation, because there are no facts or inferences which tend to show a dispute of fact about that element. The Baskins argue that there was an express misrepresentation, or positive deceit, about the condition of the tanks. The argument is without merit. Gene Baskins admitted that the tanks were the age represented and that they did not leak. The Baskins additionally argue that the statement, “all you have to do is pump the fuel in and go to work” was also an express misrepresentation of fact. The statement cannot serve as the basis of a deceitful representation because it was made after the transaction was closed. Prosser points out, however, that the false representation element is today construed by many courts to include (1) concealment of material information and (2) non-disclosure of certain pertinent information. See Prosser, Law of Torts § 106 (4th ed. 1971).

The Baskins contend that the appellees actively concealed the federal regulation. We could dispose of the issue by saying that Scoggins only knew that some regulation existed, but he did not know the details of the regulation. However, we choose not to summarily dispose of the issue. The Restatement of Torts (Second) § 550 discusses fraudulent concealment as follows:

One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.

Here, there is no proof or indication that Scoggins or the four other sellers intentionally prevented the Baskins from acquiring a copy of, or seeing, or learning about the federal regulation. There is no proof or inference that by failing to fill out or return the Arkansas Department of Pollution Control and Ecology form Scoggins fraudulently concealed the federal regulation from the Baskins. Thus, Scoggins could not be guilty of concealment of material information.

The Baskins also argue that the sellers had a duty to disclose the federal environmental regulation, and that their failure to do so constituted non-disclosure. Prosser observes that “the law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.” Id. at 698. Section 551 of the Restatement of Torts (Second) encompasses much of Prosser’s discussion of the duty to disclose certain information in a business transaction. However, we hold that the duty to disclose does not arise where the “fact” that is not disclosed is the existence of a federal regulation, because both parties have equal access to the knowledge.

In summation, there was no false representation either (1) expressly, or (2) by concealment of material information, or (3) by non-disclosure, and the trial court correctly granted summary judgment.

Affirmed.


text:
    Gilbert Leroy LEMON v. Ike Allen LAWS, Jr.
    91-56
    806 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Richard E. Worsham, for appellant.

      Wright, Lindsey & Jennings, by: James M. Moody, for appellee.
   Robert H. Dudley, Justice.

Appellant Gilbert Leroy Lemon employed Ike Allen Laws, Jr. as his attorney to represent him in a divorce action. Subsequently, Lemon, the client, sued Laws, the attorney, for legal malpractice. The attorney filed an answer denying negligence and counterclaimed for attorney’s fees. The case came to trial but, just before the jury was empaneled, the client moved to dismiss his complaint. The trial court granted the motion without prejudice. The attorney proceeded to trial on his counterclaim and obtained a judgment for his fees.

The client subsequently refiled his complaint against the attorney. The attorney filed a motion to dismiss on the grounds that the client’s cause of action was barred by the doctrine of res judicata and by ARCP Rule 13. The trial court granted the attorney’s motion to dismiss. We reverse and hold that the client is entitled to refile his complaint after having once voluntarily dismissed it.

The plaintiff-client dismissed his complaint. ARCP Rule 41(a) provides that:

Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice. In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding to trial on his claim although the plaintiff may have dismissed his action. [Emphasis added.]

The right to voluntarily dismiss an action in civil cases has existed in Arkansas law since the enactment of Arkansas’ original civil code. The section of the civil code corresponding to Rule 41(a) was last codified as Ark. Stat. Ann. § 27-1405 (superseded). This statutory provision on voluntary dismissal, as amended in 1971, is the basis of the rule. Cases construing Rule 41 (a) have interpreted it the same way the superseded statute was interpreted. D. Newbern, Arkansas Civil Prac. & Proc., §§ 22-1 and 22-2 (1985 and Supp. 1989).

The right to take a voluntary nonsuit before the final submission is absolute. Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989). This absolute right belongs to the plaintiff. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). A plaintiffs first dismissal is without prejudice. Moss Tie v. Miller, 169 Ark. 657, 276 S.W. 586 (1925); D. Newbern, supra, at §§ 22-2 and 22-3. A claim dismissal without prejudice is not barred and may be filed a second time. Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 579 S.W.2d 605 (1979). This is so because a dismissal without prejudice is not an adjudication on the merits. Id.

In the case at bar, the appellant-client exercised his absolute right as a plaintiff to voluntarily dismiss his claim against the attorney. That dismissal was without prejudice and was not an adjudication on the merits. The doctrine of res judicata bars relitigation when a claim or cause of action could have been litigated in a prior lawsuit but was not. Swofford v. Stafford, 295 Ark. 433, 434, 748 S.W.2d 660, 661 (1988). If we applied the doctrine to a plaintiffs voluntary dismissal under Rule41(a),we would be changing the absolute right to a qualified right. We would be creating two types of first-time nonsuits: those that could and those that could not be refilled. Therefore, we hold that the doctrine does not bar a plaintiff refiling a claim after he has exercised his right to one voluntary dismissal under ARCP Rule 41(a).

Rule 41(a) provides a right for defendants as well as one for plaintiffs. A defendant has the right to pursue his counterclaim even though the plaintiff has dismissed his original claim. A claim voluntarily dismissed is of no further effect. Dillon v. Hawkins, 147 Ark. 1, 227 S.W. 758 (1921). Thus, voluntary dismissal of the plaintiffs original claim does not affect, but leaves for adjudication, the defendant’s counterclaim. Dorsey v. Dorsey, 226 Ark. 192, 289 S.W.2d 190 (1956); see also D. Newbern, supra, at § 22-4.

The attorney and the trial court relied upon cases in which this court and the Arkansas Court of Appeals have held that considerations of res judicata bar a defendant who voluntarily dismisses a compulsory counterclaim from subsequently refiling it as a claim. See ARCP Rule 13; Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (1952) and Golden Host Westchase, Inc. v. First Serv. Corp., 29 Ark. App. 107, 778 S.W.2d 633 (1989). However, in the case at bar, the plaintiff-client did not dismiss a compulsory counterclaim; rather, he dismissed his original complaint, which he had an absolute right to do under ARCP Rule 41(a).

In summation, we hold that after a compulsory counterclaim has been filed, a plaintiff may once voluntarily dismiss his complaint without prejudice to refile it within one year. Accord Leon v. Noble, 234 S.W.2d 454 (Tex. App. 1950); contra Quelette v. Whittemore, 627 S.W.2d 681 (Tenn. App. 1981).

Reversed and remanded.

Hays, J., dissents.

Corbin and Brown, JJ., not participating.


author: David Newbern, Justice. Robert L. Brown, Justice, Tom Glaze, Justice, Donald L. Corbin, Justice,

text:
    James KEETON v. Juanita BARBER, Circuit Clerk, et al.
    90-163
    806 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991
    [Rehearing denied April 29, 1991.]

      Robert E. Irwin, for appellant.

      John Bynum, for appellee.

      Hays and Glaze, JJ. would grant petition for rehearing as it relates to the parking lot issue.

   David Newbern, Justice.

This is a taxpayer’s suit. The appellant, James Keeton, challenged the issuance of bonds by Pope County. The bonds were issued to raise money for renovation of the county courthouse. The ballot title by which the bond issue was presented to the people for approval referred to using money left over from a previous jail construction bond issue in conjunction with the money to be raised by issuance of new bonds. Keeton contends it was illegal to use the leftover jail money. He also contends it was illegal for the County to acquire land for and construct a parking lot for the courthouse because the voters were not apprised of that purpose by the ballot title. There was no mention of a parking lot in the ordinance submitting the question to election nor in the ballot. The chancellor held that the transfer of funds was proper and the parking lot was included. No question was raised, either to the chancellor or in this appeal, whether the challenge should have occurred prior to the election in which the voters approved the bond issue. We hold it was improper to use the jail bonds money for courthouse construction because, to the extent that issue was at all presented to the voters, it was presented improperly. We also hold that the record before us does not support the chancellor’s conclusion that the parking lot was authorized.

Emergency Ordinance No. 88-0-51 was presented on the General Election Ballot for Pope County, November 8,1988, as follows:

An ordinance submitting to the voters of Pope County, Arkansas, the question of issuing bonds under Amendment No. 62 to the Constitution of the State of Arkansas for the purpose of financing a portion of the cost of courthouse improvements (with another portion of the cost to be paid from excess proceeds of the tax levied to pay a county jail bond); selecting an underwriter for the courthouse bonds; employing bond counsel; prescribing other matters pertaining thereto; and declaring an emergency.
An issue of capital improvement bonds of Pope County in the maximum principal amount of $2,800,000 for the purpose of financing a part of the cost of the courthouse improvements to be payable from a continuing annual ad valorem property tax to be levied at the maximum rate of 0.6 mill on the dollar of the assessed valuation of taxable property in the county.

1. The jail money

Money raised by issuance of bonds for a public project may not be used for any purpose other than to retire the bonds or to pay interest and expenses directly connected with the bonds. That was our interpretation of Ark. Const. amend. 17 pursuant to which the jail construction bonds were issued. Morton v. Baker, 254 Ark. 444, 494 S.W.2d 122 (1973); Searcy v. Headlee, 222 Ark. 719, 262 S.W.2d 288 (1953); Stuttgart v. McCuing, 218 Ark. 34, 234 S.W.2d 209 (1950). The jail project was completed, and the bondholders were repaid by September 7,1988. Approximately $250,000 remained unspent.

Amendment 17 was repealed by Ark Const. amend. 62, passed in 1984, which is now the general constitutional authority governing issuance of local capital improvement bonds. Amendment 17 allowed only one purpose for bond issuance to be presented to the voters. Amendment 62, § 1.(a), provides:

The legislative body of a municipality or county, with the consent of a majority of the qualified electors voting on the question at an election called for that purpose, may authorize the issuance of bonds, to bear interest at a rate not to exceed two percent (2%) per annum above the Federal Reserve Rate at the time of the election authorizing the bonds, for capital improvements of a public nature, as defined by the General Assembly, in amounts approved by a majority of those voting on the question either at an election called for that purpose or at a general election. The General Assembly shall prescribe a uniform method of calling and holding such elections and the terms upon which the bonds may be issued. If more than one purpose is proposed, each shall be stated separately on the ballot. The election shall be held no earlier than thirty (30) days after it is called by the legislative body. The tax to retire the bonds may be an ad valorem tax on real and personal property. Other taxes may be authorized by the General Assembly or the legislative body to retire the bonds.

The parties agree that if the voters consent to it money from one public project may be transferred to another. While the only authority cited for that proposition is an obiter dictum in Searcy v. Headlee, supra, we do not quarrel with it. The question here, however, is whether the favorable response of the voters to the ballot established that consent.

If two purposes were stated on the ballot, that is, one to transfer the leftover jail money and one to issue bonds raising the additional money needed for the renovation, then it could be argued that Amendment 62 invalidated the ballot item altogether and both the money transfer and the courthouse bond issue would have been invalid. Keeton does not argue for that result. Rather, his argument, with which we agree, is that the parenthetical statement that the jail money is to be used simply did not constitute the statement of a “purpose” of the ballot. It did not inform the voter that he or she was deciding that issue, and thus it did not accomplish the transfer.

Keeton correctly notes that a parenthetical statement, by dictionary definition, is “A word, phrase, or sentence, by way of comment or explanation, inserted in, or attached to, a sentence which would be grammatically complete without it.” Black’s Law Dictionary, p. 1270, (Fourth ed. 1957). Even if the reference to the jail money had not been parenthetical, however, we could not conclude that a voter looking at the language would have known that a purpose of the ballot was to determine whether the money should have been transferred. While we have a duty to sustain an election where the information to the voters is sufficient to enable them to cast their ballots with fair understanding of the issue presented, Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982), we have no such duty where the voters do not have such information. We hold that the election did not authorize the transfer.

2. The parking lot

Ordinance No. 88-0-51 as passed by the Pope County Quorum Court contained language more specific than that in the ballot quoted above. The Ordinance described the courthouse improvements as follows: “acquire a site for and construct and equip a new building to house courts and public offices and renovate the existing Pope County Courthouse.” The County has acquired land for and constructed a parking lot as part of the project. Keeton argues the parking lot was not authorized by the language of the Ordinance. The County contends it was authorized because it was incidental to a courts building and no separate reference to it was necessary.

Keeton cites only Neal v. City of Morrilton, 192 Ark. 450, 92 S.W.2d 208 (1936). In that case we held that a complaint stated a cause of action in alleging that the City had exceeded its authority under Ark. Const. amend. 13, when it issued bonds for construction and maintenance of a hospital. Amendment 13 only permitted bonds to be issued for construction and equipment.

The County cites only Davis v. Waller, 238 Ark. 300, 379 S.W.2d 283 (1964). There we held that Amendment 17 permitted, by implication, bond money to be spent on equipping a hospital even though it was not mentioned in Amendment 25 pursuant to which a hospital could be constructed with bond money. We wrote that a hospital consists of more than a building, and equipment was essential to construction.

In Railey v. City of Magnolia, 197 Ark. 1047, 126 S.W.2d 273 (1939), we reached the same conclusion as in the Davis case. We held that approval by the voters of construction of a hospital was sufficient to imply authority to spend bond money for hospital equipment because the equipment was essential to the erection of a functioning hospital.

While these cases do not directly answer the question before us, we note that in the Davis case we characterized the issue as whether the equipment was “essential” to the hospital construction rather than “incidental.” In the Railey case we likewise noted that “A naked building would not be a hospital. It would require the essential equipment to make it such, and authorization to erect a hospital would import authority to equip it.”

The glaring difference between this case and the Davis and Railey cases is the fact that in those cases there was no evidence that the respective county and municipality already had hospital equipment on hand, while here it was clear that there was already a parking lot across the street from the courthouse for use of courthouse patrons. The lawyer who counseled the County on the bond issue, and who prepared the Ordinance but not the ballot title, testified he had been unaware of the existence of a parking lot for courthouse use across the street from the existing building. There was no other testimony on the issue.

It is tempting to say that in this day and age we could take judicial notice that parking space is an essential ingredient of the construction of any public facility and thus the requirement of Ark. Code Ann. § 14-164-308 (1987) that the purpose of the bond issue be stated in the ordinance was satisfied by implication. Even though Ark. Code Ann. § 14-164-304 (1987) requires that we construe liberally the requirement of § 14-164-308, approval of the County’s action, given the facts of this case, would make a mockery of the requirement that voters be informed of what they are asked to do. See Vandiver v. Washington County, supra.

It would have been very easy for the Pope County Quorum Court to have included the new parking facility in both the ballot and the Ordinance to which an inquisitive voter could have referred. We hold that it should at least have been a part of Ordinance No. 88-0-51 by which the Quorum Court decided to seek the approval of the voters for the project.

Reversed and Remanded.

Brown, J., concurs.

Hays and Glaze, JJ., concurring in part and dissenting in part.

Corbin, J., dissents.

Robert L. Brown, Justice,

concurring. The majority is correct in the result reached, but it does not go far enough in describing how the ballot should have informed the voters so that they could have intelligently consented to the transfer of the jail money. Two purposes were contained in the ballot: one to approve the issuance of bonds to pay for the courthouse improvements and second to authorize use of the jail money to pay for the same project. I agree with the majority that describing the transfer of jail money in a parenthetical phrase did not adequately inform the voters. But what would have?

Amendment 62 is dispositive on this point: “If more than one purpose is proposed, each shall be stated separately on the ballot.” Informed consent by the voters can only occur from following the dictates of Amendment 62 and, in this case, by describing the use of jail money in a separate paragraph.

The majority worries that affirming the clear dictates of Amendment 62 might invalidate the entire election, relief which not even the appellants request. I do not agree. Failure to state a purpose separately only invalidates that purpose. The appellants argue in their appeal that Amendment 62 requires that the approval of new courthouse bonds and the use of jail money be separately stated on the ballot. We should reach that issue in this decision, and we do not.

Tom Glaze, Justice,

concurring in part, dissenting in part. I agree with the conclusion reached by the majority that the voters failed to validly authorize the use of excess jail bond funds to help pay for courthouse improvements. At the November 8, 1988 General Election, the voters of Pope County were presented with two distinct propositions, viz., (1) whether the voters approved of issuing bonds under Amendment 62 to the Arkansas Constitution for financing courthouse improvements and (2) whether surplus tax collections from an earlier bond issue approved by the voters for jail construction could be used to underwrite a portion of the costs of the courthouse improvements.

Unfortunately, while these were two separate and distinct propositions, the question appearing on the ballot offered the voters only one choice — whether they approved the issuance of Amendment 62 bonds to finance the cost of courthouse improvements which would also be paid in part from excess or leftover proceeds of the tax earlier levied to pay for jail construction bonds issued pursuant to Amendment 17.

The general rule is that two or more distinct propositions cannot be submitted as a single question. See 29 C.J.S. Elections, § 170 (1965); 26 Am. Jur. Elections § 222 (1966). If, however, a natural relationship exists between the objects to be voted for, they can be submitted in one proposition. Id. Amendment 62 is clearly in accordance with the foregoing general rule since it provides that, if more than one purpose for calling or holding the election is proposed, each proposition shall be stated separately on the ballot.

Under the situation presented here, I see no natural relationship between the proposition regarding Amendment 62 bond issue for courthouse improvements and those involving tax monies left from the county’s prior jail project. One proposition calls for issuance of bonds for the sole purpose of funding courthouse improvements under Amendment 62. The second proposition has no connection with the Amendment 62 bond issue except a forced one — whether surplus funds from the taxes levied for a prior jail bond shall be used to help pay for the courthouse improvements proposed under the new bond issue. Because the Pope County voters were not given the opportunity to vote separately on the two foregoing propositions, I agree with the majority that the voters never approved the diversion of excess jail bond funds to pay for part of the courthouse improvements.

However, I disagree with the majority’s conclusion on appellant’s second point for reversal. Appellant argues that since the county’s enabling ordinance authorizing issuance of the bonds did not specifically describe the acquisition of land and construction of parking facilities, such action by the county quorum court violated Amendment 62 and its enabling legislation. In this connection, Ark. Code Ann. § 14-164-308 (1987) provides that an ordinance authorizing the issuance of bonds must specify the purpose or purposes for which the bonds are to be issued. However, Ark. Code Ann. § 14-164-304 (1987) provides that the bond issue provisions shall be construed liberally to effect the legislative intent and that “all powers herein shall be broadly interpreted to effectuate the intent and purposes and not a limitation of powers.”

The case of Railey v. City of Magnolia, 197 Ark. 1047, 126 S.W.2d 273 (1939), involved a bond ordinance which failed to provide that the funds would be used for equipment as well as for the construction of a hospital. The taxpayers argued that the election was ineffective and it was held for the purpose only of determining whether a hospital should be erected, because the ordinance made no reference to its equipment. In rejecting the taxpayer’s argument, the court held that authority to erect a hospital would imply authority to equip it. The court further stated that a hospital would require the essential equipment to make it functional as such, and authorization to erect a hospital would import authority to equip it.

Here, in giving § 14-164-308 its broadest interpretation so as not to limit Pope County’s power in issuing bonds, I believe the county’s ordinance, when providing for a new courthouse building (annex) and renovations to the existing Pope County Courthouse, implies the authority to provide access to the new facility. Undoubtedly, a new courthouse facility with additional employees will require added access in the form of parking facilities. No evidence was offered to show that the existing parking lot could meet access needs for the new courthouse facility. Contrary to what appears to be the majority court’s view, I am convinced that in this day-in-time, parking lot access is an implied need or essential to the construction of a new building. Therefore, I would uphold the chancellor’s holding to this effect.

For the reasons stated, I would reverse only that part of the chancellor’s decision which upheld the use of the excess funds from the prior jail project, because I believe that issue should have been presented and approved by the voters as a separate proposition on the November 8, 1988 ballot.

Hays, J., joins this opinion.

Donald L. Corbin, Justice,

dissenting. I agree with the majority’s decision that the people of Pope County, Arkansas, were not adequately apprised so as to give an informal consent to the transfer of excess monies of the jail bond tax levy into the courthouse construction project.

I dissent to the majority’s finding thht the parking lot is not essential to the courthouse construction. In this day and time parking is essential to any public or private offices. Today, any architect submitting an architectural scheme of plans which fails to include parking, and for that matter sidewalks and even perhaps landscaping, would be subject to harsh criticism from his peers. I would, under the facts of this case, include the parking lot as being essential to the courthouse construction under the authority of Davis v. Waller, 238 Ark. 300, 379 S.W.2d 283 (1964).