author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    Felix D. TAYLOR; Joseph TAYLOR, Jr.; Claude V. NICHOLSON; Clarence T. NALLS, Jr.; and J. H. BOOKER v. Stephen SAFLY, Secretary, Arkansas State Board of Law Examiners; Charles B. ROSCOPF, Chairman, Arkansas State Board of Law Examiners; ARKANSAS STATE BOARD OF LAW EXAMINERS
    79-170
    637 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    Petitioners, pro se.

    G. Ross Smith, P.A., for respondents.
   Steele Hays, Justice.

This original action was filed on April 30, 1979, by petitioners, who are black, seeking admission to the bar of Arkansas without the requirement of an examination, and for the adoption of amendments to the rules of the Supreme Court governing admission to the bar. Petitioners are graduates of law schools accredited by the American Bar Association and have taken the examination of the State Board of Law Examiners at least twice, in some instances three times, and have failed to achieve a passing grade.

No evidence has been taken, consequently the only record before us is a brief stipulation of facts giving the name, age, law school and the dates and times each petitioner (other than Mr. Booker) has taken the bar examination. The stipulation recites that under Rule XII of the Rules Governing Admission to the Bar of Arkansas graduates of an accredited law school are not automatically admitted to the bar but are required to take an examination. Petitioners’ prayer for relief is that they be immediately instated as attorneys-at-law and solicitors in chancery without further qualification.

The original petition and supporting brief and argument allege a pattern and history of racial discrimination in Arkansas under segregation laws and practices. Petitioners all attended segregated grade schools and some attended black colleges. Three are graduates of the University of Arkansas School of Law, one a graduate of Howard University School of Law and one Lincoln University School of Law. Without attempting to repeat petitioners’ lengthy recitation, it can be said their brief adverts to the more obvious evils prevalent under segregation.

Petitioners also allege deficiencies in the procedures of the bar examination and grading practices, citing much statistical data relative to the percentage of successes and failures by black applicants and the number of black lawyers in practice in ratio to black populations of Arkansas counties, et cetera. It would serve no useful purpose to attempt to summarize the assertions.

Four points are argued in petitioners’ brief as grounds for the relief sought:

I
Petitioners should be admitted as attorneys-at-law and solicitors in chancery because of past and present racial discrimination by the State of Arkansas and the State Board of Law Examiners which are violative of petitioners’ right to equal protection of the law.
II
Petitioners should be admitted as attorneys-at-law and solicitors in chancery because the State Board of Law Examiners and the rules of this court violate petitioners’ right to due process of law.
III
Petitioners should be admitted as attorneys-at-law and solicitors in chancery since Ark. Stat. Ann. §§ 25-103 (1962, Repl.) has not been repealed.
IV
The court should use its powers under Amendment 28 and its inherent powers to insure equity in bar admission rules.

We need not consider the arguments originally presented, however, because Mr. Felix Taylor, spokesman for the petitioners, acknowledged in oral argument that during the three years this cause has been permitted to lie dormant, changes have occurred affecting the petitioners themselves and the relief sought. One petitioner is deceased, two are practicing elsewhere and one is no longer in Arkansas. Of the four points originally argued, Mr. Taylor asks only that we address the fourth, by directing the Board of Law Examiners to adopt procedures enabling an applicant to have access to the questions, his own answers and model answers. Similar procedures were ordered by the Alaska Supreme Court in Application of Peterson, 459 P.2d 703 (1969), so that a failing applicant would have some explanation and review wherein his answers were deficient. The Alaska Supreme Court stressed that procedures for review were essential to fair process and should be “as fully protected as these same occupational rights are when questions of moral character or discipline of the applicant are involved.” The court held that minimum standards of basic procedural fairness required that the applicant have access to the examination, his answers and model answers of the particular examination.

While we are reluctant to order the State Board of Law Examiners unilaterally to incorporate a review process into its practices, we are agreed the proposal has sufficient merit to justify our requesting the Board to give serious consideration to the proposal. We recognize that there may be practical problems involved, but there are obvious benefits as well, certainly to those who fail, if not to all in the broad sense of fair play. For an applicant to muster and invest the resources of time and effort necessary to meet pre-law and law school requirements, to graduate from an accredited law school, prepare for and undergo a rigorous bar examination, only to fail it, and again, and be told he is not entitled to know how he failed or why, only that he failed, has obvious shortcomings. The process offends a sense of fairness, at least viewed from the standpoint of the candidate whose career plans are shattered.

We reject the argument that such a step will inevitably lead to appeal — testing the sufficiency of the applicants’ answers against the model. But even if it did, is that, too, not to be accorded as a minimum standard of basic procedural fairness? In Schware v. Board of Bar Examiners, 353 U.S. 232 (1957), the Supreme Court said:

We need not enter into a discussion whether the practice of law is a “right” or “privilege.” Regardless of how the State’s grant of permission to engage in this occupation is characterized, it is sufficient to say that a person cannot be prevented from practicing except for valid reasons. Certainly the practice of law is not a matter of the State’s grace. Ex parte Garland, (U.S.) 4 Wall. 33, 379, 18 L.Ed. 366 [370].

Speaking for the court in Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926), dealing with the application of a certified public accountant to practice before the Board of Tax Appeals, Chief Justice Taft said:

The rules adopted by the Board provide that “the board may in its discretion deny admission, suspend or disbar any person.” But this must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.

In conclusion, we invite the Board to weigh whether the simple expediency of requiring each examiner to prepare a model answer as he prepares his questions is not worth the modest effort required. If for the sake of anonymity the examiner is unwilling to meet with the few failing candidates who might request a conference, then the model answers could at least be supplied to the secretary for dissemination to those who request them. On balance, our own view is that the added burden would be outweighed by the benefits inherent in a fairer, more open system.

For the reasons stated, the petitioners’ request that we order the Board to adopt a review procedure is now denied.

George Rose Smith, Hickman and Dudley, JJ., concur.

Darrell Hickman, Justice,

concurring. I disagree that we should suggest the committee consider model answers. We should either require such a practice or not. I would not require it.

George Rose Smith, J., and Dudley, J., join in this concurrence.


source: Caselaw Access Project

author:
Milas H. Hale, Special Justice.
      Darrell Hickman, Justice,

license: Public Domain

text:
    O. Porter HILLARD et al v. J. T. STEPHENS d/b/a STEPHENS PRODUCTION COMPANY et al
    81-231
    637 S.W.2d 581
    Supreme Court of Arkansas
    Opinions delivered July 12, 1982
    [Rehearing denied September 13, 1982.]

      Putman, Gallman it Dickson, by: James W. Gallman; and Niblock ir Odom, by: Walter R. Niblock and Priscilla Karen Pope, for appellants/cross-appellees.

      Spence A. Leamons and Ball, Mourton ¿r Adams, by: E. J. Ball, for appellees/cross-appellants.

      Warner & Smith, by: Gerald L. DeLung and G. Alan Wooten, for amicus curiae Tenneco Oil Co. and Shell Oil Co.
   Milas H. Hale, Special Justice.

This case is before the Supreme Court pursuant to Rule 29 (1) (n) as it presents issues of first impression regarding gas rights. Appellants, plaintiffs below, the “Hillards,” are lessors of seven gas leases in Franklin County, Arkansas. Appellees, “Stephens,” are the lessees.

The first lease was executed on or about February 6, 1957, and all of the gas produced from the wells, except that part used, retained and/or purchased by the Hillards under the leases and as modified by letter agreements was sold for use off of the premises under long-term gas purchase contracts. Stephens paid appellants over the years based on “net proceeds” which Stephens received for the sale of the gas under the long-term gas purchase contracts. Appellants contend that royalties have been underpaid.

All of the gas leases were on the same oil and gas lease form then in use in the State of Arkansas, and more particularly, the Arkhoma basin of Arkansas, but each such lease contained certain modifications. The first five of these leases provide for a royalty to the lessor as follows:

3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of “five cents” Prevailing Market Price at Well per thousand cubic feet while the same is being sold or used off the premises, measured according to Standard Measurement Law in the State in which the above described land lays.

The term “five cents” as set out in the foregoing provision was struck out and the term “prevailing market price” was inserted therein. Stephens paid royalty to the Hillards and the Hillards accepted the royalty payments without complaint until this suit was filed on June 28,1979, based on the “net proceeds” from the Ark-La contracts.

Two of the leases provided for a royalty to lessor as follows:

3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of five seven (7) cents per thousand cubic feet while the same is being sold or üsed off the premises, measured according to the Standard Measurement Law of the State in which the above described land lays.

The term “five” as set out in the foregoing provisions of the two leases was struck out and the term “seven (7)” was inserted therein. Stephens paid royalty to the Hillards under these two leases from the commencement of production of natural gas to July 21,1970, computed on the “net proceeds” received from the Ark-La contracts. After July 21, 1970, Stephens paid royalty to the Hillards computed at a set amount of approximately $ .16 per MCF and was unable to explain why it did not compute the royalty based on the “net proceeds” received from the sale of the gas as in the past. The Hillards accepted the royalty payments from Stephens without complaint until this suit was filed on June 28,1979.

On June 30, 1981, the trial court held:

1. That the “prevailing market price at the well” provision of the royalty clause in the first five of the leases requires that Stephens’ royalty obligation be settled on the basis of “current sales” of the gas on a daily basis through November 8,1978, and thereafter by reference to § 105 of the Natural Gas Policy Act of 1978, 15 U.S.C.A. § 3315 which fixes the maximum price for such gas at the price specified in the existing contracts under which Ark-La purchased the gas from Stephens; and

2. That Ark. Stat. Ann. § 53-511 (Repl. 1971) converted the two leases from the fixed price of $0.07 per MCF leases to “proceeds” leases and required that Stephens’ royalty obligation be settled on the basis of the “net proceeds” received by Stephens for the sale of the gas to Ark-La under the contract. JThe trial court awarded Hillards a judgment for $193,749.00, with prejudgment interest. Hillards appealed and Stephens cross-appealed.

The Hillards contend on appeal:

1. That with respect to the first five of the leases, they are entitled to a royalty computed on the current market value of the gas in the field determined on a daily basis the moment the gas is produced and/or delivered to Ark-La under the gas purchase contracts;

2. That with respect to the last two of the leases (the fixed price leases of $0.07 per MCF) they were entitled to a royalty computed on the “net proceeds” received by Stephens from Ark-La from the sale of the gas under the contracts, because these leases were converted into “proceeds leases” under § 53-511, and alternatively, they own all of the gas produced under these two leases on and after June 28, 1974, because these two leases were forfeited retroactively by Stephens under Ark. Stat. Ann. § 53-514 (Repl. 1971).

Stephens contends on cross-appeal:

1. That the “prevailing market price at the well” under the five leases is determined by the contracts between Stephens and Ark-La, for the sale of the gas and Stephens’ payment to the Hillards of the royalty computed on the price per MCF received by Stephens under the long-term contracts discharges in full its obligation to pay royalty.

2. That § 105 of the Natural Gas Policy Act (NGPA), 15 U.S.C.A. § 3315, determines the “market value” of the Hillard gas on and after its effective date on November 9, 1978, and Stephens’ payment to the Hillards of the royalty computed pursuant to § 105 of the NGPA, 15 U.S.C.A. § 3315 (the price specified in the Ark-La gas purchase contracts) discharges in full its obligation to pay royalty.

3. That payment of royalty to the Hillards computed at the rate of $0.07 per MCF as specified in the last two leases discharges in full its obligation to pay royalty because §§ 53-511 and 53-514 do not apply to gas leases, since these gas leases constituted a present sale of gas in place with all the title to such gas being vested absolutely in Stephens and none in the Hillards.

4. That if §§ 53-511 and 53-514 convert the fixed price leases (the 0.07 per MCF) into proceeds leases, then all the gas leases are converted into proceeds leases by the statute.

5. Other grounds for relief based on the doctrines of estoppel and laches and Stephens objects to the awarding of pre-judgment interest.

The first issue to be decided here is whether the “contract price” that Stephens receives according to the gas purchase contracts with Ark-La is the “prevailing market price at well” under the five leases. We hold that it is. The gas lease constitutes a present sale of all of the gas in place at the time such lease is executed; and as the gas leaves the well head, the entire ownership thereof is in the lessee, none being reserved in the lessor. Once the lessee-producer drills a well resulting in the commercial production of natural gas on the leased premises, the lessee-producer has the immediate duty to market the gas. In order to market such gas effectively, it is the custom in the industry and is usually necessary for the lessee-producer to sell the gas under a long-term gas purchase contract. In Tara Petroleum Corporation v. Hughey, 630 P.2d 1269, 1273 (Okla. 1981), the Oklahoma Supreme Court stated:

We have recognized this necessity of the market, and we believe that lessors and lessees know and consider it when they negotiate oil and gas leases. Lessors and lessees also know that during the term of a gas purchase contract gas prices may increase, perhaps substantially. During the term a producer’s revenues, fluctuations in the production aside, will not increase. Yet if royalty must be paid on the basis of a “current,” steadily-increasing “prevailing price,” then the lessor’s share will take an even larger and larger proportion of the producer’s revenues.

Following the foregoing quotation, the Tara court considered an example of how the lessor would continue to receive a larger portion of the revenues for the sale of the gas, if the lessor’s contention were followed. Similarly, in this case, on December 1,1981, Stephens would be receiving from Ark-La under the gas purchase contracts the sum of $0.3390 per MCF for the Hillard gas, and the Hillards contend that they are entitled to be paid royalty computed on a “prevailing market price at well” of about $2.40 per MCF with their royalty portion amounting to $0.30 per MCF, while Stephens’ revenues per MCF will remain constant. If this were true, then Stephens will keep only $0.0390 per MCF from the $0.3390 proceeds received. As stated by the Oklahoma court in Tara, supra, p. 1273:

This would not be fair to the producers ... We do not believe that the lessors in this case... ever contemplated that the lessors’ royalty could be over half of what the producers... received for the gas. The better rule — and the one we adopt — is that when a producer’s lease calls for a royalty on gas based on the market price at the well and the producer enters into an arm’s-length, good faith gas purchase contract with the best price and term available to the producer at the time, that price is the “market price” and will discharge the producer’s gas royalty obligation.

See also, Henry v. Ballard & Cordell Corp., 401 So.2d 600 (La. Ct. Appeals, 1981). We recognize that the Texas courts have taken a Afferent approach, see Texas Oil if Gas Corp. v. Vela, 429 S.W.2d 866 (Texas 1968) and other Texas cases that followed it.

Here, the gas purchase contracts under which the Hillard gas was sold to Ark-La were effective as long as natural gas was produced from the Hillard wells. At the time these contracts were executed, all natural gas produced in Arkansas was then being sold to either Ark-La, or Arkansas Western Gas Company, or Arkansas Oklahoma Gas Company under long-term contracts. None of Arkansas production was sold or used outside the State of Arkansas. Stephens placed in evidence a substantial number of such gas purchase contracts that accounted for the sale of substantially all of the production in Arkansas with computerized graphs reflecting the comparison of the price per MCF of the Hillard gas received by Stephens under its contract with the price per MCF under the other Stephens gas purchase contracts, and in each such case the price per MCF of Stephens gas was substantially greater than the price per MCF received by the other producers in the field. In this respect, the circuit court found as a matter of fact that Stephens had fulfilled its obligations to market the Hillard gas and stated:

The Court, however, is of the opinion that the gas sale contracts entered into between Stephens Production Company and Arkansas Louisiana Gas Company were negotiated at arms-length and in good faith. Although there was no testimony introduced, questions were raised in the interrogatories to establish the percentage of interest of Stephens in Arkansas Louisiana Gas Company. The Court cannot conceive of businessmen of the caliber of the Stephens accepting a lesser amount for the sale of gas, the total of which would come directly to them, than they would receive as stockholders in a large gas distribution company which they would have to share with other stockholders and after additional distribution and administrative expense would reduce it further. The Court finds nothing in the record by which anyone in the early 1960s could have anticipated or predicted the inordinate increase in gas prices that has occurred in the 1970s.

We believe that this interpretation of “prevailing market price at the well” is consistent with the intent and understanding of both Homer Hillard, the Hillards’ predecessor in title, and Stephens, and it is the only interpretation that operates fairly for the producer. It is not unfair to the Hillards. As long as the gas purchase contracts were reasonable when entered into, and as long as the law recognizes long-term gas purchase contracts as binding in the face of escalating prices, the law should not penalize Stephens who was forced into the gas purchase contracts in a large measure by its duty to the Hillards to market the gas efficiently and effectively. However, if the long-term gas purchase contracts executed by Stephens and Ark-La were not reasonable when entered into, if they are not at a minimum fair and representative of other contracts negotiated at the time in the field, then a different result obtains, because Stephens has not then protected its lessors (the Hillards) in discharging its duty to market the gas efficiently and effectively and there is no policy in the law requiring the courts to protect the lessee (Stephens) in interpreting the leases. But here the evidence contained in the record makes it abundantly clear and the trial court so found, that the Stephens and Ark-La purchase contracts were fair and reasonable and that Stephens had discharged its obligation to the Hillards to market the gas efficiently and effectively. In any event, the burden of proving that the gas purchase contracts between Stephens and Ark-La were unfair or unreasonable at the time they were entered into is on the Hillards, Tara, supra, and in this case there is no hint that the contracts were unfair or unreasonable. Nor is it fair for the trial court to impose its own methodology and interpretation.

Since here the Stephens-Ark-La contract price per MCF of gas is the “prevailing market price at well,” the lessors (the Hillards) were not entitled to any additional royalties from the producer (Stephens). In this respect the j udgment is reversed on cross-appeal.

The last two leases provide for a royalty per MCF to the lessor (Hillards) as follows:

3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of five seven (7) cents per thousand cubic feet while the same is being sold or used off the premises, measured according to the Standard Measurement Law of the State in which the above described land lays.

The Hillards contend and the trial court held that the Hillards were entitled to have their royalty payments due them under these $0.07 per MCF leases computed on the “proceeds” received by Stephens under the long-term gas purchase contracts between Stephens and Ark-La because § 53-511 converted these last two leases from “fixed price” leases into “proceeds” leases. Section 53-511 provides:

It shall be the duty of both the lessee, or his assignee, and any pipe line company, corporation or individual contracting for the purchase of oil or gas under any oil, gas or mineral lease to protect the royalty or lessors interest by paying to such lessor or his assignees the same price including such premiums, steaming charges, and bonuses of whatever name, for royalty oil or gas that is paid such operator or lessee under such lease for the working interest thereunder.

Although the foregoing statute has been in effect since 1929, no cases were found where the statute was interpreted insofar as it applies to the production and marketing of natural gas.

If, as the trial court held, § 53-511 converts all “fixed price” gas leases into “proceeds” leases, it follows that fixed prices favorable to a lessor or higher “fixed price” leases would be converted into “proceeds” leases. That is not the intent of the statute. Nor is it to prohibit fixed price contracts for oil and gas leases. Absent indications previously referenced, it is clear that §§ 53-511 and 53-514 are inapplicable in this case and could not under the circumstances cause Stephens to forfeit the leases to the Hillards.

We hold that Stephens’ payment of royalty to the Hillards computed at the rate of $0.07 per MCF discharges its obligation to pay royalty under these leases.

Stephens contends that it is entitled to a judgment against the Hillards for the excessive payment of royalty under these $0.07 per MCF leases because it paid excess royalties. The record disclosed that Stephens did pay the Hillards additional royalties but the record fails to disclose evidence that such royalty paid was due to a “mutual mistake of fact” on the part of both Stephens and the Hillards. We hold that Stephens is not entitled to a judgment against the Hillards for the excessive royalty payments under the $0.07 per MCF leases.

I

Several other issues were raised on appeal. Holding as we have, we find it unnecessary to decide those questions.

The trial court is affirmed in part and reversed in part.

Adkisson, C.J., and Holt, J., not participating.

George O. Jernigan, Special C. J., joins in the opinion.

Hickman, J., concurs in part and dissents in part.

Darrell Hickman, Justice,

concurring in part, dissenting in part. The trial judge in a comprehensive and detailed set of findings meticulously gave his reasons for his decision in this complicated lawsuit. The majority has reversed those findings in every respect.

This is an oil and gas case and essentially there were two kinds of leases in question. The leases were signed by Homer Hillard and his wife as landowners and Stephens Production Company as lessee. Homer Hillard died and his heirs pursued this lawsuit to interpret and enforce the leases according to the law.

The first set of leases in question contained a clause which read:

The lessee shall pay lessor as royalty for the gas equal one-eighth of the value of such gas calculated at the rate of prevailing market price at well per thousand cubic feet...” [Emphasis added.]

The threshold question concerning the interpretation of this italicized language, which is largely ignored by the majority, is whether the language is plain and unambiguous. The trial court found that it was and, therefore, did not consider the abundant testimony offered by the Hillards and Stephens as to what the parties actually meant; or what “prevailing market price at well” meant to the oil and gas business community in the Arkhoma Basin where the land is located. So, to the trial court, the issue was not what the parties may have actually intended but whether the parties should be bound by the plain and ordinary meaning of the language in the lease. The trial court found:

... This court is not convinced that these words should not be considered in their ordinary and commonly understood meaning.
Even though the witnesses who testified and who were handling the day-to-day business for Stephens Production Company may have had in mind that the amount which Arkansas Louisiana Gas Company was willing to pay for the gas at that time constituted the prevailing market price, it may have been an unfortunate selection of words which did not in reality express Stephens’ real intent.
The words ‘market price’ have a very common and ordinary meaning with which all of us are familiar. They are used in various transactions and simply refer to what the commodity will bring when placed on the market. And, of course, the word ‘prevailing’ refers to the conditions in existence at any given time and are changeable from day-to-day or at other given periods.
It is my view, therefore, that the testimony as to the intent of the parties was not necessary to arrive at an interpretation of the words used in the lease with reference to the rate of royalty payments and, even though the Court heard this testimony, it has not influenced this finding.

Why does the majority find that ‘‘prevailing market price at well” cannot have a commonly understood meaning? The majority simply does not satisfactorily answer that question but considers only what it determines to be the real intent of the parties. Necessarily this means that careful consideration should be given to all evidence presented to the trial court during this lengthy trial. That the majority has not done.

Stephens argued to the trial court, and on appeal, that the language is ambiguous and that it was actually meant to create a “proceeds” lease; that is, the Hillards were to be paid a royalty from the proceeds Stephens received from a long term sale agreement it had made with Arkansas Louisiana Gas Company. There was evidence that officers of Stephens knew what a “proceeds” lease was and they could have easily inserted that term but chose not to. Instead, Stephens prepared and signed the lease which contained the common phrase “market price.” I would submit Stephens knew exactly what it was doing. As the court stated in Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1 (1977), when it considered similar leases: “There are two commonly recognized types of leases employed in the gas industry, ‘proceeds’ leases and ‘market value’ leases.” There is no doubt there were lengthy negotiations between Hillard and Stephens and there is evidence that unless Stephens had signed such a favorable lease agreement with Hillard, he would have gone to a competitor. In that regard, the court made this finding:

Both parties admit that Arkansas Louisiana Gas Company, Arkansas Western Gas Company, and Arkansas Oklahoma Gas Company were all three buying and transporting gas intrastate from or in the Arkhoma Basin during this period although not a highly competitive situation. And, yet, there was testimony that Arkansas Western Gas Company maintained a pipeline not more than one mile from some of the Hillard Wells. This clearly could have constituted a competitive situation for the purchase of the Hillard gas; and since Mr. Walker testified that the negotiations between Stephens and Arkla were arms length and resulted from lengthy and extended conferences, it is the Court’s opinion that Mr. Walker would not have hesitated to have gone to Arkansas Western had there been a substantial price differential.

Several states have considered the effect of similar language in natural gas leases. Generally Oklahoma and Louisiana have sided with the producers and the lessees in determining that the phrase “market value at well” actually means “proceeds.” Tara Petroleum Corporation v. Hughey, 630 P.2d 1269 (Okla. 1981); Henry v. Ballard & Cordell Corp., 401 So.2d 600 (La. Ct. Appeals, 1981). The leading authorities for the other position, and that adopted by the trial court, are the states of Texas, Montana, and Kansas. Texas Oil & Gas Corporation, 630 P.2d 1269 (Okla. 1981); Montana Power Company v. Kravik, 586 P.2d 298 (Mont. 1978); Lightcap v. Mobil Oil Corporation, supra.

Finding that the language of the lease should be given its ordinary meaning, the trial court proceeded to determine the market price. In doing so, the court, in my judgment, correctly rejected the exaggerated claims of both the lessors and the lessees, finding a reasonable middle ground. The lessors essentially wanted the trial court to consider interstate sales in determining the market value; the lessees wanted the court to make the lease over into a “procéeds” lease, or at least limit the market to Franklin County. The trial court recognized the peculiar matter of the market in the Arkhoma Basin, there being essentially no strong competition between buyers and, as the finder of fact, used the available evidence to determine a fair market value. In doing so, the trial court considered the "fair field price”, which is a price determined by the Arkansas Public Service Commission. Certainly, I would not agree that the fair field price would always be the controlling factor of the market value, but it was a factor to be considered and because of the peculiar nature of the market in that area, I cannot say the trial court was clearly wrong in its finding regarding the market value.

I agree with the majority that Act 222, Acts of Arkansas, 1929, [Ark. Stat. Ann. §§ 53-509 — 514] does not void the second types of leases. The Act is penal in nature and must be strictly construed. It only allows for three remedies: Forfeiture of rights, treble damages, or criminal sanctions. Ark. Stat. Ann. §§ 53-514 and 53-515. There are no provisions in the Act to revise the lease as the trial court did. Furthermore, the Act was obviously designed to penalize lessees that received kickbacks, or otherwise dealt improperly to deny a lessor his usual minimum royalty. There is no evidence at all Stephens acted in any way improperly. In fact, to the contrary, it appears the leases were entered into at arms length in every respect.


author: Per Curiam.

text:
    Frank BROWN, Jr. v. STATE of Arkansas
    638 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Anthony W. Bartels and Jim Burton, for appellant.

      Steve Clark, Atty. Gen., by: A lice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Frank Brown, Jr., by his attorneys, has filed for a rule on the clerk.

His attorneys, Anthony W. Bartels and Jim R. Burton, have attached an affidavit admitting that the record was tendered late due to a mistake on their part.

We find that such an error, admittedly made by the attorneys for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Vester Mae ELLIS v. STATE of Arkansas
    637 S.W.2d 588
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      James E. Smedley, for appellant.

      Steve Clark, Atty. Gen., by. Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

The appellant has filed a second motion for belated appeal after we rejected his first motion. In an attached affidavit, attorney James E. Smedley concedes that it was his mistake in not timely filing the appeal. Therefore, pursuant to the Rules of Criminal Procedure and Nelson v. State, 272 Ark. 287, 613 S.W.2d 598 (1981), the belated appeal is granted.

Rules of Criminal Procedure, Rule 36.26, reads:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

The method for taking the appeal is set out in Rule 36.9.

We rendered an opinion on this subject in the case of Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). In Finnie we stated:

Even though the trial court was without authority to grant the appeal, this Court had such authority. No request has previously been made to this Court for belated appeal. We held in Goodwin v. State, 261 Ark. 926, 552 S.W.2d 233 (1977), that filing of notice of appeal within the time prescribed by Rule 36.9 is not jurisdictional as to this Court.

We went on to explain that if counsel intended to withdraw from the case he must comply with Supreme Court Rule 11 (h). We also pointed out that an attorney, in obtaining permission to withdraw from a case, should include a statement of the reasons therefor in his motion. A copy of the motion should be sent to the defendant and if the motion to withdraw is granted a copy of the order should be furnished to the defendant.

In view of the fact that the present attorney did not follow the procedure prescribed for withdrawal, we must still consider him the attorney of record and hold him responsible for the duties imposed upon him by the rules, statutes and opinion of this court as recited above. The belated appeal will be granted and a copy of this opinion forwarded to the Committee on Professional Conduct.


author: Frank Holt, Justice. John I. Purtle, Justice, Steele Hays, Justice,

text:
    Honorable Frank WHITE, Governor and Raymond PRITCHETT v. H. T. HANKINS
    82-39
    637 S.W.2d 603
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982
    [Rehearing denied September 13, 1982.]

      Steve Clark, Atty. Gen., by: Frederick K. Campbell, Asst. Atty. Gen.; Thomas B. Keys and Christopher O. Parker, for appellants.

      Pickens, Boyce, McLarty ir Watson, by: James A. McLarty, for appellee.
   Frank Holt, Justice.

The issue in this case is whether the appellant Governor Frank White’s appointment of appellant Raymond Pritchett, confirmed by the senate, to the Arkansas State Highway Commission was contrary to Amendment 42, Ark. Const. (1874), which provides “that no two Commissioners shall be appointed from any single Congressional District.” Shortly after the appointment appellee sought a declaratory judgment that Patsy Thomas-son, an existing member of the Commission, and Raymond Pritchett were both residents of Pulaski County or the same Congressional District. The appellee later filed a motion for summary judgment together with a discovery deposition of Thomasson, a copy of her voter registration card from Cleveland County, an affidavit showing the exercise of her voting rights in that county, her appointment showing her address as Rison, Cleveland County, maps showing the existing Congressional Districts (6) when Amendment 42 became effective in 1952, and the present Congressional Districts (4) following the 1970 census. The appellee took a voluntary nonsuit as to Thomasson. The appellants resisted the motion for summary judgment alleging that factual matters remained in dispute and a hearing on the merits was necessary. Also, they sought dismissal of the action. The trial court granted appellee’s motion for summary judgment, holding that Pritchett and Thomasson were both residents of Pulaski County, which is located in the old (1951) Fifth Congressional District; therefore, Pritchett’s appointment is null and void inasmuch as it contravenes Amendment 42 which was enacted in 1952. The court considered the Congressional Districts, six in number in 1951, “frozen” by that amendment. Hence this appeal.

Appellants first contend the appellee lacked standing to bring this action as he has shown no injury in fact nor alleged grounds sufficient to show he is the proper party to bring this action. Appellee’s complaint states: “The Plaintiff claims standing to seek this declaration as a citizen and taxpayer of the state and as a resident of Northeast Arkansas who is now deprived of representation on the Arkansas State Highway Commission as a result of Governor White’s appointment of Raymond Pritchett to that body.” He further alleged that he was a resident of Independence County which placed him in the old (1951) Second Congressional District and that he (his Congressional District) is without representation. He did not allege nor does he contend that he is entitled as a matter of right or law to have a Commissioner from his Congressional District — he merely argues that he has standing as a citizen and taxpayer to object to the improper appointment of Pritchett. The trial court agreed stating that as a taxpayer, appellee had a right pursuant to Art. 16, § 13, Ark. Const. (1874), to challenge the appointment of Pritchett, who, as a Commissioner, would be responsible for spending tax dollars levied on the people of this state. Art. 16, § 13 provides:

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

In Green v. Jones, 164 Ark. 119, 261 S.W. 43 (1924), we held that under Art. 16, § 13, that each citizen and taxpayer has an interest, where his pecuniary or property rights are involved, in seeing that no administrative board shall discharge its duties in a manner violative of the statute creating it. We feel this reasoning is applicable here. It is clear that the State Highway Commission is entrusted with the authority and responsibility, among other things, of spending large sums of state funds. Therefore, the trial court correctly held that appellee has standing to challenge the appointment.

We next consider and agree with appellants’ contention that the trial court erred in holding that Amendment 42 requires selection of highway Commissioners on the basis of the 1951 Congressional Districts. The trial court’s interpretation of Amendment 42 would require a finding that it was intended to “freeze” the six 1951 Congressional Districts as the relevant boundaries for the selection of Highway Commissioners. Amendment 42 § 2 provides:

Within ten days after the convening of the General Assembly of the State of Arkansas in the year 1953, the Governor, by and with the advice and consent of the Senate, shall appoint five persons who are qualified electors of the State to constitute the State Highway Commission .... The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District.

The Highway Commission established by Amendment 42 is, in a large measure, patterned after the Game and Fish Commission which was established by Amendment 35. Both use Congressional Districts as a criterion in the selection of Commissioners. Congressional Districts are known to change with population fluctuation, and their use insures a periodically updated rough balance of population and geographical considerations. In construing a similar provision in Amendment 35, which is self-executing as is Amendment 42, we said in Drennen v. Bennett, Atty. General, 230 Ark. 330, 322 S.W.2d 585 (1959):

In the oral argument before this Court, appellant made the contention — not contained in the pleadings —that when Amendment No. 35 was adopted in 1944 it ‘froze’ the Congressional Districts insofar as the Amendment No. 35 was concerned. That is to say, appellant argued that the words, ‘Each Congressional District must be represented on the Commission’, meant that each Congressional District as Congressional Districts were constituted in 1945 must be represented on the Commission. We think such contention is unsound for at least two good reasons of statutory construction.
In the first place: constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that such operation was intended (16 C.J.S. 121). If the framers of Amendment No. 35 had intended to say what the appellants now claim, then the framers of the Amendment would have said, ‘Each Congressional District as now constituted must be represented on the Commission’. The failure to place the italicized words in the Amendment shows the fallacy of the appellants’ argument.
Secondly: we know that when Amendment No. 85 was adopted, there had been, theretofore, a series of Acts changing the Congressional Districts in Arkansas; and if the framers of the Amendment had intended that the Congressional Districts could not be changed, insofar as Amendment No. 35 was concerned, they would have been obliged to say so. By the Act of January 3, 1853, Arkansas was divided into two Congressional Districts; by the Act of April 24, 1873, there were four Congressional Districts; by the Act of March 23,1883, there were five Congressional Districts; by the Act of April 9,1891, there were six Congressional Districts; and by the Act of May 23,1901, there were seven Congressional Districts. So, with a long history of changes in Congressional Districts, it was certainly clear that Congressional Districts would continue to be changed as population requirements rendered such changes necessary or advisable. So the Amendment No. 35 did not ‘freeze’ the Counties comprising the various Congressional Districts.

We feel this reasoning is controlling here and hold that Amendment 42, § 2, did not “freeze” the Congressional Districts as they existed in 1951, but rather it reflects a method and desire of the framers to insure equal representation of the Highway Commission from all parts of the state with an odd number (to avoid tie votes) constituting that membership. Historically, they were aware of the fluctuation in the number of Congressional Districts following each census or every ten years. If they had intended that the Congressional District boundaries be inflexible, even though they historically change, the drafters could have said so or used another method such as dividing the state into geographical areas, which would not be subject to changing boundaries. Arkansas presently has four Congressional Districts and five Highway Commissioners. As the legislature has recently recognized, it would be impossible to comply strictly with § 2 of Amendment 42 requiring that no two members be from the same district, inasmuch as two members of the Commission would certainly have to be residents of the same district. See Ark. Stat. Ann. § 76-201.1a (Repl. 1981) and the preamble of the Act. We take judicial notice of the fact that as the present Commission is constituted all four districts are represented regardless of whether Thomasson is considered to be from Pulaski or Cleveland County. The prohibition against two members serving from the same district cannot control here; that provision, of course, is not stricken and will be effective if Arkansas were to have five or more Congressional Districts.

Since one district of the present four Congressional Districts must always have two of the five members of the Commission, it is irrelevant whether Thomasson is or is not a qualified elector from Pulaski or Cleveland County. Therefore, the appointment of appellant Pritchett is permissible.

Reversed and dismissed.

Purtle, J., concurs.

Hays, J., dissents.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority but for a different reason. The language relating to the qualifications and appointment of members of the State Highway Commission is found in § 2 of Amendment 42 to the Constitution of the State of Arkansas. The language is as follows:

Within ten days after the convening of the General Assembly of the State of Arkansas in the year 1953, the Governor, by and with the advice and consent of the Senate, shall appoint five persons who are qualified electors of the State to constitute the State Highway Commission for terms of two, four, six, eight and ten years respectively. The terms of the persons so appointed shall be determined by lot. The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District. . .

The language above-quoted is clear and simple to the effect that no two commissioners shall be appointed from any single congressional district. At the time Amendment 42 was adopted and went into effect, the state had six congressional districts. Therefore, there was no problem in appointing five members with no two being qualified electors of the same district. The same would hold true when the state was reduced to five congressional districts following the 1960 federal census. However, it was not known, and could not reasonably have been anticipated, that in 1970 the state would be reduced to four congressional districts. When the state was reduced to four districts then it was no longer possible to comply with the mandatory requirement that no two commissioners should be qualified electors of the same district. Therefore, it is obvious to me that the intent of the wording in the amendment was to freeze the number of districts at six. By giving Amendment 42 this interpretation it becomes obvious that there would never be a conflict with having more commissioners than there were congressional districts.

It is argued that Amendment 35 was the same type of amendment relating to the Game and Fish Commission. The qualifications in Amendment 35 are as follows:

Commissioners shall have knowledge of and interest in wildlife conservation. All shall be appointed by the Governor. The first members of the Commission shall be appointed by the Governor for terms as follows: one for one year, one for two years, one for three years, one for four years, one for five years, one for six years and one for seven years. Each Congressional District must be represented on the Commission.

From a plain reading of Amendment 35 it would not matter how many congressional districts existed in the state of Arkansas, so long as there were no more than seven and that each district would be represented on the commission. There is no prohibition against more than one commissioner residing in the same district. This subject was treated in the case of Drennen v. Bennett, Attorney General, 230 Ark. 330, 322 S.W.2d 585 (1959). The complaint in that case alleged that one district did not have a representative on the Game and Fish Commission. However, Dr. J. H. Burge of Lake Village was serving as a member at large and resided in the district which claimed not to have a representative. In Drennen, the court stated:

The fact that Dr. Burge was and is designated as “member at large” does not gainsay the fact that he resides in the present 6th Congressional District.

Therefore, the court held that each congressional district was at that time represented by a member on the commission. I concur with the reasoning in that holding. The court rejected the argument that the amendment, in stating that each congressional district must be represented, meant the districts as they existed in 1945. It was completely unnecessary to rule on this contention because the court had already properly disposed of the argument presented by the appellants.

The difference in Amendment 35 and Amendment 42 is that the latter states that no two commissioners shall be appointed from any single district. The only way this could possibly be done is to treat the districts as being frozen at the time the amendment became effective or, in any event, not to allow the number of districts to be reduced below five. Amendment 35 allowed more than one member from each district but required that there be at least one member from each district. Amendment 42 prohibits two commissioners serving who are qualified electors of the same district. There is no mention of domicile or residence in this amendment. The proof is clear and unequivocal that Patsy Thomasson was and is a qualified elector of a different district from that of Commissioner Pritchett. However, there must be no other members who are commissioners from the same present congressional district. In order to avoid further litigation I would simply hold that the districts from which the commissioners are to be appointed were frozen as of 1953. If the authors of Amendment 42 had meant to hold highway commissioners to the same standard in qualificiations as game and fish commissioners, they would have used the same language as in Amendment 35.

Steele Hays, Justice,

dissenting. I agree with the majority that the appellee had standing to challenge the appointment of Mr. Raymond Pritchett to the Highway Commission. However, I disagree that it was error for the trial court to interpret Amendment No. 42 as requiring that the six congressional districts be treated as “frozen” for purposes of the appointment of Highway Commissioners. I believe the trial court was correct and any other interpretation leads, eventually, to the destruction of the clear intent of the Constitutional Amendment. Since I come to that view I disagree, of necessity, that it is irrelevant whether Ms. Patsy Thomasson is “from” Pulaski County or Cleveland County within the meaning of the amendment. I regard that as the crucial issue.

Section 2 of Amendment No. 42 reads, in part:

The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District. (My italics.)

I cannot say the trial court was mistaken in finding that Ms. Thomasson and Mr. Pritchett were “from” the same congressional district as the word is ordinarily used and understood. A person is “from” the place where his home and job are located, where he keeps his bank account, the place he gives as his address on his driver’s license and tax returns, where he pays real and personal property taxes. Applying such criteria to Ms. Thomasson the court found she was “from” the same congressional district as Mr. Pritchett, whose residency in Pulaski County was not disputed. She did maintain her voting registration in Cleveland County but that appears to have been motivated by sentiment alone and cannot outweigh the strong evidence that her home and employment for ten years have been in Pulaski County.

I agree with Justice Purtle that the result reached in Drennen v. Bennett, Attorney General, 230 Ark. 330, 322 S. W.2d 585 (1959), was the correct decision on the facts, but I believe it is a mistake to accept the dictum of the case as precedent for a presumption that the Legislature intended the boundaries of congressional districts to change as congressional seats increase or decrease unless the words “as now constituted” are used. The argument would have been more persuasive if the framers of Amendment No. 42 had had the benefit of the decision in Drennen v. Bennett before they drafted the amendment, but they did not, as the amendment was adopted nearly a decade earlier. Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S.W.2d 631 (1932). The dictum of Drennen v. Bennett is unreliable as precedent for this because: it could lead to a result clearly inconsistent with the express language of the amendment itself. The Drennen court noted that Arkansas had consistently gained congressional seats: in 1853 there were two, by 1873 there were four, by 1883 five, by 1891 six, and by 1901 seven congressional districts (which remained fixed for fifty years). However, had Arkansas continued to gain seats (as might have been expected) and added a district as a result of the approaching 1960 census, the dictum of Drennen v. Bennett would have been impossible to follow, as Arkansas would have had eight congressional districts and a Constitution that fixed its Game and Fish Commission at seven members, yet mandating that each district “must be represented” — a literal impossibility.

Similarly, to follow the same flawed reasoning in this case results in the destruction of the plain objectives of Amendment No. 42. The amendment states simply that “no two Commissioners shall be appointed from any single Congressional District.” It would be impossible to make that provision any clearer. Yet the decision reached today, using rules of construction which are to be followed only when statutes or constitutional provisions are ambiguous, effectively invalidates that provision.

Amendment No. 42 was overwhelmingly adopted by the electorate. It had a two-fold objective recognized as historical fact: to remove the Highway Commission from politics, so far as possible, and to preserve regional representation within the five member commission. Today’s decision permits two members to be “from” the same congressional district, the 5th, and leaves two districts, the 2nd and 6th, unrepresented. I believe the result defeats the letter and the spirit of our Constitution as amended and I would affirm the trial court.


author: John I. Purtle, Justice. Robert H. Dudley, Justice,

text:
    WARREN-MERRITT ENTERPRISES, INC. et al v. Donald H. BRIDGES and Wade THOMAS
    82-118
    637 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982
    [Rehearing denied September 13, 1982.]

      Callahan, Wright, Crow, Bachelor Lax, by: Carl A. Crow, Jr., for appellants.

      Hobbs, Longinotti ér Bosson, for appellees.
   John I. Purtle, Justice.

The trial court found that the airport commission for the city of Hot Springs, Arkansas, was operating within its authority when it authorized appellee to operate vehicles for hire between the airport and other points, although such vehicles were not licensed pursuant to an ordinance enacted by the city council. There were several other matters considered by the trial court. This appeal is from that portion of the decree denying an injunction against appellee’s continued operation of Airport Limousine Service without first obtaining a permit and license approved for that purpose by the Hot Springs City Council.

Appellants urge that the airport commission of the city of Hot Springs is not empowered to authorize operation of motor vehicles for hire as such power is vested exclusively in the city of Hot Springs. The trial court reached the correct decision although relying in part on the wrong authority. We affirm its decision.

Resolution No. 399 by the city of Hot Springs, Arkansas, approved the original airport limousine franchise agreement between the city of Hot Springs and the appellee’s assignor on June 8, 1953. The Airport Limousine Service has continued to operate since that time. Resolution No. 546 of the city of Hot Springs approved the second airport limousine franchise agreement between the city and the Airport Limousine Service on March 4, 1963. On January 4, 1965, the appellee, Bridges, acquired the right to operate the limousine franchise service and has continued to operate said service since that date. The court found that the city council never formally confirmed the assignment to appellee Bridges of the rights under the second airport limousine franchise agreement. In 1968, the city of Hot Springs enacted Ordinance No. 2963, codified in the Hot Springs Code as §§ 4-12.11 through 4-12.20 which created the Hot Springs Airport Commission. Section 4-12.15 lists the duties and powers of the airport commission as follows:

The airport commission as hereunder appointed shall have full and complete authority to manage, operate, improve, extend and maintain the Hot Springs Municipal Airport, its related properties and facilities, and shall have full and complete charge of said airport, its related properties and facilities, including the right to employ or remove any and all assistants and employees of whatsoever nature, kind or character, and to fix, regulate and pay their salaries, it being the intent of this article and the act under which it is authorized to vest in said airport commission unlimited authority to operate, manage, maintain, improve and extend said Hot Springs Municipal Airport, its related properties and facilities, and to have full and complete charge therefor.

The appellants operate a fleet of taxicabs pursuant to authority granted by the Hot Springs City Council. In fact, the taxicabs operated by the appellants were acquired from the appellee. The appellants obtained their present license from the city of Hot Springs although they were granted the franchise by the airport commission. Both the Airport Limousine Service and the taxicabs obtain their license from the city of Hot Springs. The basic question presented to this court is whether the airport commission may grant authority, on a bid basis, to operate an airport limousine service for persons who are arriving and leaving from the Hot Springs Municipal Airport. There is no dispute but that the city issued the first franchise for an airport limousine service and continued to do so until they created the airport commission at which time they apparently attempted to give the commission the authority to award a franchise for the operation of the airport limousine service. We have set forth above the powers delegated to the airport commission. There is no specific authority to award a franchise to operate a limousine service. However, the commission sought bids and renewed the agreement for Airport Limousine Service which was in existence at the time of the creation of the commission. The franchisee is required to obtain a license from the city of Hot Springs. For a period of almost 30 years the Airport Limousine Service has operated from the Hot Springs airport and for about 18 years has rented a stand for the Airport Limousine Service across the street from the Oaklawn Race Track.

In the case of Bridges v. Yellow Cab Co., 241 Ark. 204, 406 S.W.2d 879 (1966), the present appellee brought an appeal against the Yellow Cab Company in an argument over the operation of the same limousine service at the municipally owned airport. The question presented was not exactly the same but we did hold that Bridges had a right to operate. Airport Limousine Service has an exclusive franchise granted by the City of Hot Springs. Therefore, we have expressed by precedent that the city of Hot Springs has the power to authorize the right of Airport Limousine Service to operate. The question before us is whether the city of Hot Springs has, indeed, authorized the operation of Airport Limousine Service. The city of Hot Springs has been aware of this decision as it continued to issue the license for the service which we upheld in the foregoing opinion. We must determine whether the powers enumerated in setting up the airport commission included, at least by implication, the power to award a franchise for an airport limousine service. We do not think that the ordinance creating the airport commission granted the commission sole authority to grant such a franchise. However, since the commission is responsible to the city government and the city has continued to honor and approve the franchises granted by the commission by collecting a fee and licensing each vehicle, we think the city has ratified the actions of the commission.

Affirmed.

Adkisson, C.J., Hickman and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. In 1965 the City of Hot Springs enacted a comprehensive “vehicles for hire” regulatory ordinance, the cornerstone of which is that no vehicle for hire may be operated within the city without the issuance of a permit by the city council. Appellees’ airport limousines are vehicles for hire which are operated within the city and appellees do not have the required permit.

Instead of having a permit issued by the city council, the appellees have a permit issued by the airport commission. The majority opinion quotes the 1968 airport commission ordinance and then states: “There is no specific authority to award a franchise to operate a limousine service.” That ordinance does nothing more than empower the commission to manage the “airport, its related properties and facilities.”

The last sentence of the majority opinion declares the rationale that the permit from the city council has been obtained through the doctrine of ratification: “However, since the commission is responsible to the city government and the city has continued to honor and approve the franchises granted by the commission by collecting and licensing a fee on each vehicle, we think the city has ratified the actions of the commission.” Yet, nothing in the record and nothing in the majority opinion indicates that since the enactment of the “vehicles for hire” ordinance in 1965 the city council has ever approved, or ratified, or even known about, the airport limousine franchise given by the airport commission. In addition, it is undisputed that the city clerk’s issuance of licenses to appellees was unauthorized.

The city council has not issued a permit. The city council has not ratified a permit. Therefore, I respectfully dissent.

I am authorized to state that Chief Justice Adkisson and Mr. Justice Hickman join in this opinion.


author: John I. Purtle, Justice.

text:
    Bonnie Barbara NICHOLS v. Grace CLEVELAND, Guardian of Mary Alice NICHOLS
    82-136
    637 S.W.2d 609
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982

      Ross é1 Ross, by: Mark Ross, for appellant.
    No brief for appellee.
   John I. Purtle, Justice.

In August 1980 Grace Cleveland, acting as guardian of Mary Alice Nichols, filed suit No. 80-684 in the Garland County, Arkansas, Chancery Court. She sought to set aside a deed from Mary Alice Nichols to Bonnie Rowland, a/k/a Barbara Nichols, a/k/a B. B. Nichols. Both Grace Cleveland and Barbara Nichols are daughters of Mary Alice Nichols. Appellee alleged the deed was a forgery and that Mary Alice Nichols was incompetent on July 24, 1976, when the deed was signed. Upon request of the appellant, Chancellor Chesnutt recused himself from the case. Chancellor Gayle Ford was assigned by Chief Justice Fogleman to try Case No. P79-345 in the Probate Court of Garland County, Arkansas, and was authorized to handle all ancillary proceedings in connection with that case. The probate case dealt with the issue of vacating the guardianship of Mary Alice Nichols.

Chancery Case No. 80-684 was decided by Chancellor Gayle Ford sitting on exchange for Chancellor Chesnutt, by a decree dated June 10, 1981. In the final order, from which this appeal is taken, he determined that the incompetent did not intend to divest title from herself and invest title in the defendant during her lifetime. He also held that the deed and accompanying bill of sale should fail as an attempted testamentary disposition of the real property involved in this case. The deed of July 24, 1976, which purported to convey the property from Mary Alice Nichols to the appellant was cancelled. There were no other findings of fact or conclusions of law accompanying or included in the decree. There was no order at any time made which allowed the pleadings to be amended to conform to the proof.

On appeal the appellant alleges (1) there was insufficient evidence to show the deed to be forged as alleged in the complaint and the court made no such findings; (2) there was insufficient evidence to show Mary Alice Nichols was incompetent on the date the deed was executed; (3) the court erred in refusing to grant a new trial because the decree was based upon grounds not raised by the pleadings; (4) the court erred in refusing to grant a continuance until the probate case seeking to vacate the guardianship was heard; and (5) the court erred in entering an order denying a new trial after the court had recused from the case.

The facts and pleadings are very complicated due in large part to the appellant’s pro se actions which included one 20 page typewritten pleading. There were many other handwritten exhibits and pleadings included. Also, the case had undergone the recusal of two chancellors. Additionally, the attorney for the appellant was allowed to withdraw after the trial.

A deed was either forged or executed by Mary Alice Nichols in which the property in question was conveyed to the appellant on July 24,1976. A bill of sale of the same date on the same land was also allegedly executed by Mary Alice Nichols. In fact, Mary Alice Nichols had executed the deed to the same property to her son, Royce, on April 6, 1976. The deed to Royce was never recorded and the record indicates he died in 1979. However, the appellant recorded her deed and bill of sale on June 16, 1980.

In the meantime, Grace Cleveland filed a probate action to have herself appointed guardian of her mother, Mary Alice Nichols, and was so appointed on April 21, 1980. On May 5, 1980, appellant filed a petition, in probate Case No. P79-345, in which she sought to set aside the order appointing her sister, Grace Cleveland, as guardian of their mother. The appellant became unhappy with Chancellor Chesnutt and petitioned for his recusal. He obliged and on April 5,1980, Chief Justice Fogleman appointed Chancellor Gayle Ford to hear the probate case and all ancillary matters arising out of said proceedings.

Appellant and her attorney strenuously objected before Chancellor Ford to the hearing of the chancery case on January 26, 1981, insisting that the probate case must necessarily be decided first. They argued that if Mary Alice Nichols was declared not to be incompetent at that time then Grace Cleveland would have no standing to bring the chancery court proceeding in which she sought to declare the deed and bill of sale to the appellant invalid.

There was an order prepared by Chancellor Chesnutt disqualifying himself from Case No. 80-684 on January 21, 1981, and requesting Chancellor Ford to hear it for him. Chancellor Ford accepted the assignment on January 26, 1981, which was the date the chancery case was commenced. There was no order from the Arkansas Judicial Department or the Chief Justice appointing Chancellor Ford to hear the chancery case. Arguments for a continuance were heard and overruled before the trial commenced. The trial court did acknowledge pendency of the probate case and stated it was at least going to hear the chancery matter on that date and if it could be shown that the probate case could be decided first it would go ahead and do that but the same testimony could not be used for both trials. The court stated there was no reason not to go ahead and take testimony in the chancery matter and it would consider the request to hear the other case. The court agreed to reserve the question of the guardian’s standing. This issue was never ruled upon by the court nor has the probate case been tried at the present time.

The pleadings were never amended to conform to the proof. In fact, Grace Cleveland testified that her mother was competent on April 6, 1976, when she executed a deed to Royce Nichols. The notary public who acknowledged the signature on the deed to Royce testified that Mary Alice Nichols was all right at the time she executed the deed. The notary public who witnessed the signature on the deed to the appellant was deceased but his daughter positively testified that the signature of her father was real. Grace Cleveland testified that her mother was incompetent at the time she signed the deed to appellant. However, she either accompanied or sent her mother to the office of attorney Julian Glover on March 20, 1980, where Mary Alice Nichols revoked a previous power of attorney in favor of the appellant. The revocation was prepared by attorney Glover and filed of record with the Garland County Circuit Clerk. On August 5, 1979, Mary Alice Nichols executed a notice to quit against the appellant and caused the sheriff to serve it on October 22, 1979. Witness Harold Lavender testified that Mary Alice Nichols seemed rational enough at the time she signed the deed to Royce. Witness Robert H. Scott testified he was acquainted with all of the parties and that in 1976 Mary Alice Nichols seemed normal with no incapacity. He thought she understood her actions.

There is evidence that the appellant was in possession of the house and did a considerable amount of repairs. Various papers indicate that she assumed some indebtedness against the property and paid her mother additional sums.

Larry Bryan, Vice President and Trust Officer of the First National Bank, testified that the signature on the deed to the appellant did not appear to be that of Mary Alice Nichols. He did not claim to be an expert, and the court stated, “There is no doubt he is not an examiner of questioned documents.”

Doctor Driver Rowland testified that Mary Alice Nichols was last seen by him on December 20,1976. He had talked to her over the telephone but had not seen her since that time. He was treating her for heart trouble at that time. He stated that her ailments probably contributed to her mental ability or deficiency and that he felt that she was senile and unable to care for her own needs. He stated, “I did not see her and this was just noted in passing.” He further stated that he had recommended in 1972 that a guardian be appointed because of her mental and physical ailments. He admitted that people could improve from conditions similar to hers but he would not expect her symptoms to entirely disappear. He stated, “I certainly wouldn’t say it was not possible that there were times in 1976 when she was competent to make decisions for herself.” No other witnesses testified in this case.

The complaint in chancery alleged the deed was a forgery and that the grantor was incompetent. Apparently, these are alternate pleadings. The count of forgery was actionable in chancery but the matter of competency was a probate subject. If the probate case had been heard first, it is possible the appellee would not have had standing to file suit in her mother’s behalf. In any event, the guardianship order was notentered until April 21,1980, which was almost four years after the alleged execution of the deed here in question. The probate order is not a part of the record and therefore there is no evidence, other than that previously stated, that Mary Alice Nichols was incompetent at the time the deed in question was executed. In fact, it does not seem there was any evidence that on the date the deed was executed Mary Alice Nichols was, indeed, incompetent.

In view of the fact that the trial court made no findings relating to the alleged forgery or as to the competency of the grantor it does not seem the case was fully tried. The matter of standing is still pending so far as the record indicates. The trial court has recused itself from any further proceedings in the chancery case. Therefore, it appears the only manner in which this case can properly be disposed is to remand it for a hearing on the probate matter and a retrial on the chancery case.

Reversed and remanded.

Hickman, J., would affirm under Rule 9 (d), Supreme Court Rules.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION et al v. Frances HAYES
    82-137
    637 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982
    [Rehearing denied September 13, 1982.]

      Tom Tanner, for appellants.

      Warner & Smith, by: James M. Dunn, for appellee.
   Robert H. Dudley, Justice.

The principal issue in this complex case is whether there was a claim of the debtor’s homestead exemption which would allow title to real estate to be conveyed free of a judgment lien. In January, 1978, Patricia Stanley filed suit for divorce against Harvey Stanley. They agreed to sell their home in Pulaski County, which they owned as tenants by the entirety, and the proceeds of the sale were to be paid into the registry of the court for division. On January 29, 1979, Harvey Stanley vacated the home and since then has not occupied it. On February 12, 1979, appellee Frances Hayes obtained a judgment in Pulaski County against only Harvey Stanley in the amount of $12,755.95. Judgment was entered the same day and Harvey Stanley did not appeal. Thus a judgment lien was created. Harvey Stanley has never claimed the judgment debtor’s homestead exemption from the judgment lien.

Meanwhile, Patricia Stanley and the two minor children occupied the home. On February 21, 1979, the Stanleys executed a contract for the sale of their home and agreed to withhold $10,000 from the proceeds of the sale for the court to divide. The remainder of the net proceeds were to be divided equally. On March 20, 1979, the court in an interlocutory decree approved the agreement and, on the same day, the Stanleys conveyed the property by warranty deed to appellants James R. and Jeanette Morrison. Patricia Stanley in the warranty deed released her homestead rights in the lands.

On April 4, 1979, appellee Frances Hayes filed a writ of garnishment on the court clerk, who was withholding $10,000 from the sale of the property. Subsequently half of the money was paid to Patricia Stanley and the other half was paid to appellee Frances Hayes, the judgment creditor.

Next, appellants James R. and Jeanette Morrison conveyed the property by warranty deed to appellants Robert A. and Marsha Elliott who mortgaged the property to appellant Arkansas Savings and Loan Association who, in turn, assigned the mortgage to appellant Worthen Bank and Trust Company. Appellee Frances Hayes, the judgment creditor, then commenced this action by seeking to foreclose her judgment lien against the property for the balance of the judgment. Appellants Robert A. and Marsha Elliott wanted to sell the property but found the litigation to be a severe obstacle. They did not want to wait on a final decree and so they impleaded $10,000 and in their petition stated:

Petitioners herewith submit $10,000.00 to be paid into the Register of the Court and be substituted for the property of the defendants against which the lien is claimed. All rights and claims, all defenses and encumbrances which any party to the litigation may have against the real estate be transferred and in the same manner be impressed upon the fund placed in the Register of the Court. That the Court order and direct the property herein before described, the property of the litigation, be released and the lien discharged as to this real estate.

The parties subsequently agreed to an order which provides that the $10,000 is substituted for the real estate and is to be treated in the same manner as if it were real estate.

Appellants, who are subsequent purchasers and mortgagees argue they are entitled to assert the homestead exemption of the Stanleys. The trial court denied the homestead exemption and held that the judgment lien was a valid first lien on the $10,000.00. We reverse.

The sale of a homestead can convey title free of a judgment lien in existence at the time of the sale, Stanley et al v. Snyder et al, 43 Ark. 429 (1884), and it is well established that as to a homestead there are no creditors. White v. Turner, 203 Ark. 95, 155 S.W.2d 714 (1941). Once the property is occupied as a homestead nothing more need be done to give the debtor the right to claim the personal privilege against a judgment creditor’s sale. Snider et al v. Martin, 55 Ark. 139, 17 S.W. 712 (1891). Atone time, in order to claim the homestead exemption, the judgment debtor was compelled to file a schedule of the property claimed and have the clerk issue a supersedeas staying the sale under execution. Norris et al v. Kidd, 28 Ark. 485 (1873). Today the judgment debtor does not lose the right to claim the exemption by the failure to claim the homestead before sale, but instead may wait until suit is brought before asserting his exemption. Ark. Stat. Ann. § 30-210 (Repl. 1979); Davis v. Day, 56 Ark. 156, 19 S.W.2d 502 (1892). However, once putting the debtor’s homestead right at issue, the burden of proof is on the one claiming the right to the exemption. Chastain v. Arkansas Bank & Trust Co., 157 Ark. 423, 249 S.W. 1 (1923). For an excellent comment on the subject see Pryor, Establishment of the Homestead Exemption in Arkansas, 9 Ark. L. Rev. 37 (1954).

Harvey Stanley did not, and does not now, seek to exercise his right against execution. Thus his right to the exemption has now been forfeited. Snider et al v. Martin, supra. The appellants, who are subsequent purchasers and mortgagees, cannot claim the judgment debtors’ right to the exemption because it is a personal right which must be exercised by the party who seeks its benefits, Jones v. Thompson, 204 Ark. 1085, 166 S.W. 1036 (1942). However, appellants correctly contend that Patricia Stanley has claimed the right of exemption. She was entitled to the exemption for when a husband refuses or neglects to claim the homestead as exempt, the wife may do so. Section 30-210, supra; Hollis v. State, 59 Ark. 211, 27 S.W. 73 (1894). It is not disputed that the home was her homestead and that she claimed it as such. Therefore, the sale of the homestead conveyed title free of the judgment lien which existed at the time of the sale. Stanley et al v. Snyder et al, supra. The trial court erred by allowing foreclosure of the exempted homestead.

Reversed.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Jean S. ROY and Eugene ROY v. Roger D. ATKINS and THE DARRAGH COMPANY
    82-121
    637 S.W.2d 598
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982

      James D. Sprott, for appellants.

      Mel Sayes and Tom Forest Lovett, P.A., by: Mel Sayes, for appellees.
   Steele Hays, Justice.

Appellants, husband and wife, filed suit to recover for Ms. Jean Roy’s personal injuries and Mr. Eugene Roy’s property damage, sustained as the result of an automobile collision. The appellees admitted liability and the j ury rendered a verdict in the amount of $2,500.00 for the injuries of Ms. Roy and $2,000.00 for Mr. Roy. The single issue on appeal is whether the trial court erred in instructing the jury to disregard Mr. Roy’s testimony regarding a list of medical expenses totaling $2,977.74 because it was not supported by sufficient evidence. We cannot say the evidence was admissible as a matter of law and, accordingly, we sustain the trial court.

At trial the appellants offered no medical testimony nor did they introduce any medical bills, drug bills, receipts or cancelled checks. The only medical evidence was from the appellees. Dr. William Blankenship testified that he found no objective evidence that Mrs. Roy sustained any permanent impairment as a result of the accident. (T. 85) Mr. Roy testified that he and his attorney had compiled a list of expenses incurred by Mrs. Roy using receipts and cancelled checks; however, neither he nor his attorney produced them at the trial. On cross-examination Mr. Roy admitted that this list included expenses for drugs for his entire family, not just for his wife. (T. 57) The list was not introduced into evidence nor was it itemized by Mr. Roy’s testimony. He simply stated his wife’s medical expenses attributable to the accident totaled $2,977.74. Upon appellees’ motion to strike, the trial court directed the jury:

Ladies and gentlemen, you are instructed by the Court, that you are to disregard the testimony of the last witness, with regard to the incurrence of medical bills and expenses, in the amount of two thousand nine hundred seventy seven dollars and seventy four cents ($2,977.74).

Appellants correctly state that the reasonableness and necessity of medical expenses are questions of fact to be decided by a jury. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Appellants contend the trial court improperly withheld from the jury the question of the reasonableness and necessity of medical expenses. The fallacy of the argument is that the trial court’s action here did not withhold from the jury all evidence of medical expenses but instructed the jury to disregard only Mr. Roy’s testimony concerning medical expenses because a sufficient foundation had not been laid. In Blissett, supra, Justice Fogleman stated at 247:

We also believe that the trial judge has some discretion in deciding whether there is sufficient foundation for the admission of testimony giving the amount of certain expenditures. . . .

We recognize that expert testimony by a physician is not necessary in every case to prove the reasonableness and necessity of medical expenses of an injured plaintiff. McCullough v. Ogan, 268 Ark. 881, 596 S.W.2d 356 (1980). Appellants interpret the ruling of the trial court as a breach of that rule, but we disagree. Mr. Roy failed to itemize the expenses by physician, or as to medication, or type of service, he simply presented a total amount of $2,977.74. He was unable to verify the figure and he acknowledged that it included expenses not properly recoverable from the appellees. We think the trial court found, correctly, that Mr. Roy’s testimony failed to provide a sufficient foundation in support of his wife’s medical expenses. It is within the trial court’s discretion to determine if the witness’s foundation is sufficient to support his testimony. Blissett v. Frisby, supra.

Appellants argue that the trial court denied the jury the right to consider any medical expenses. But we disagree. The appellants failed to proffer an instruction which included medical expenses as an element of her damage, even though they had presented evidence by Ms. Roy that her expenses were between 2,000 and 3,000 dollars, which would have warranted such an instruction. Had an instruction covering medical expenses been proffered by the appellants it would have been reversible error to deny it. However, it was appellants’ duty to tender such an instruction to the trial court before claiming error. Christensen v. Dady, 238 Ark. 577, 383 S.W.2d 283 (1964).

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I am shocked by the majority opinion in this case. I have never found any jurisdiction, including Arkansas, which prohibited a person from giving oral testimony about medical expenses incurred as a result of a personal injury. In order to reverse a case it is my understanding that we must stick with the abstract and arguments presented by opposing sides. I have adhered to this standard in this dissent. Mr. Eugene Roy testified that the medical expenses alone totaled $2,977.74 and that the above amount represented bills to doctors and hospitals that his spouse had testified about earlier. He stated also that he expended the sum of $150 to hire a wrecker to return the car to his residence. Additionally, he said they had traveled 3,200 miles during this time as a direct result of the consequences of the accident and figuring the operation of his vehicle at 15 cents a mile this amounted to $480. He stated that the vehicle involved in the accident was worth $1,900 immediately before the accident and it had no value at all after it was demolished in the collision. On cross-examination the appellees’ attorney asked:

Question: You have testified to a list of damages there, medical expense and what not, totaling some $2900, and also some transportation expenses. Do you have any statements from any of the doctors to document these amounts?
Answer: My lawyer has.
Question: Could I see them, please?
Answer: Haven’t you got the statements?
# # #
Question: Do you have any cancelled checks, where you paid those charges?
Answer: No, sir, I have them at home.
Question: Not here today?
Answer: Not here today.

There is absolutely no question in my mind but that this was proper testimony and it was for the jury to determine the credibility and value of the testimony. Following Eugene Roy’s testimony the court made the following statement:

Ladies and gentlemen, you are instructed by the court, that you are to disregard the testimony of the last witness, with regard to incurrence of medical bills and expenses, in the amount of $2,977.74.

I think the reason for the scarcity of cases on this subject is that practically no court in the United States would consider excluding such testimony. The defense certainly had the opportunity to present evidence showing the reasonableness of the various items mentioned in the testimony of Mr. Roy. We stated in the case of Lynch v. East Arkansas Builders’ Supply Co., 193 Ark. 1004, 104 S.W.2d 205 (1937):

... the testimony of a party interested in the suit is not to be considered as undisputed, but the question must be submitted to the jury.

We have also held in the case of Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970), that:

A defendant who conceives that expenses incurred for medical treatment are unreasonable certainly may, and probably should, offer evidence to support his view ... [and] the reasonableness and necessity of any expenditure for medical treatment is a question of fact for the jury (or a judge sitting as trier of the facts).

I know of no rule of law or statute which requires a plaintiff to introduce the actual medical bills and statements into the record and to prove the reaonableness of same. Testimony is left to the wisdom of a jury to determine its properness, credibility and whether it was necessary in the circumstances of the case.

I would reverse and remand for a new trial.


author: Clint Huey, Special Justice.

text:
    Evelyn R. GREEN et al v. Mac CARDER, Administrator of the Arkansas Alcoholic Beverage Control Division et al
    82-77
    637 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982

      Jack T. Lassiter, for appellants.

      Friday, Eldredge ér Clark, by: Joe D. Bell, for appellee Edward Stewart Allen.

      Donald R. Bennett, for appellee ABC Division.
   Clint Huey, Special Justice.

The Alcoholic Beverage Control Board granted a license to the Heights Liquor Store located at 5008 Kavanaugh Boulevard in Little Rock, Arkansas, on March 20,1980. Appellants immediately filed a petition for review in Pulaski County Circuit Court wherein they challenged the decision of the ABC Board. Appellants relied upon Ark. Stat. Ann. § 5-713 (Supp. 1980) as well as Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) in their appeal to the circuit court. The trial court required them to elect which statute they would use as their remedy. They chose Ark. Stat. Ann. § 48-311 (E). Some months thereafter the Supreme Court of Arkansas declared the de novo portion of this statute unconstitutional. Appellants then sought to transfer their cause to Ark. Stat. Ann. § 5-713. The court denied the request holding their election of remedies to be irrevocable and dismissed the petition.

On appeal the single point relied upon is that the court erred in granting the appellees’ motion to dismiss because they had elected a remedy which was subsequently abolished.

At the time the appellants filed their complaint they had two avenues of approach in order to obtain a review and possible reversal of the ABC Board decision. Upon motion of the ABC Board the court required appellants to elect which remedy they would follow, and they elected Ark. Stat. Ann. § 48-311 (E). Under this statute they thought they would have been allowed a complete de novo hearing in circuit court rather than a review of the ABC Board’s decision. Under Ark. Stat. Ann. § 5-713 the decision of the board is reviewed by the court and a decision is rendered based upon the record made before the board. This court subsequently ruled unconstitutional that portion of Ark. Stat. Ann. § 48-311 (E) which granted a de novo trial insofar as it disregarded the findings of the board.

We must decide whether the appellants were entitled to proceed under either remedy or whether their right to appeal under Ark. Stat. Ann. § 48-311 (E) was abolished by the ruling in Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980). Neither side has been able to locate a case from any jurisdiction precisely on point. Therefore, we must decide this issue for the first time in this case. The appellants have cited cases which hold that when a plaintiff mistakenly selects a remedy that does not exist he has not made an election. Williams v. Westinghouse Credit Corp., 250 Ark. 1065, 468 S.W.2d 761 (1971). To the same effect see Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934 (1935). Appellants also cited cases from other jurisdictions which hold that the election of a remedy which did not exist was no election at all.

“We have generally held that when a statute is declared unconstitutional it must be treated as if it had never been passed.” Huffman v. Dawkins, 273 Ark. 520 at p. 527, 622 S.W.2d 159 (1981), citing Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947); State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S.W.2d 340 (1928); and Cochran v. Cobb, 43 Ark. 180(1884).

We have consistently held that “án essential element to an election of remedies is that both remedies are available.” Williams v. Westinghouse Credit Corporation, 250 Ark. 1065, 468 S.W.2d 761 (1971), quoting Eastburn v. Gaylen, 229 Ark. 70, 313 S.W.2d 794 (1958). We have also stated that the pursuit of a remedy which does not exist is not an election but only a mistake as to an available remedy. The mistake may be one of fact or of law. Williams v. Westinghouse, supra, citing Sharpp v. Stodghill, supra. See also, Restatement, Judgments, § 62, and Restatement, Contracts, § 383, to the effect that the remedy relied on as a bar must have been available to the elector.

We hold that the remedy sought was declared unconstitutional and we must treat the litigants as though that statute had never been passed. The elected remedy was not available to appellants and, therefore, there was only a mistake, not an irrevocable election of remedies.

The exception concerning a mistake of law or fact was clearly recognized in Dudley E. Jones Co. v. Daniel, 67 Ark. 206, 53 S.W. 890 (1899), where the court stated:

But to this rule there is the exception, based on reason and justice, that an election made without fault, and in ignorance of material facts, is not binding, when no other person’s rights have been affected thereby.

Therefore, the proper remedy is to reinstate the petition of the appellants and allow the court to continue from that point.

Reversed and remanded.

Holt, J., not participating.

Hays, J., not participating.

Troy Henry, Special Justice, joins in the opinion.


text:
    Melvin Glenn HANEY v. STATE of Arkansas
    637 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982

      Harold W. Madden, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Melvin Glenn Haney, by his attorney, has again filed for a rule on the clerk. In a Per Curiam opinion issued June 28, 1982, we denied a similar motion.

His attorney, Harold W. Madden, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam dated February 5, 1969, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    James SURRIDGE v. STATE of Arkansas
    637 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered July 19, 1982

      John Belew, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

James Surridge was convicted in the Circuit Court of Desha County of first degree murder. He was sentenced to a term of 50 years imprisonment in the Arkansas Department of Correction. Retained trial counsel, John Belew, filed a timely notice of appeal on July 24,1981, and secured Surridge’s release from custody on bail. Surridge was subsequently arrested for bank robbery and his bail was revoked.

Belew filed a motion with us on March 22, 1982, to be relieved as counsel and tendered a partial record. The clerk refused to accept it as untimely, and we denied the motion to be relieved. We said that if Belew would concede in a subsequent motion that it was his fault the record was not timely filed we would grant the motion. Although nearly three months have passed, Mr. Belew has not filed a second motion for rule on the clerk.

When it appears that the attorney is at fault, but he has not conceded as much, it is the practice of this Court to deny a motion for rule on the clerk. See our Per Curiam opinion dated February 5, 1969, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. It is made clear, however, that a subsequent motion will be granted if the attorney admits his error or gives other good cause for granting the motion.

Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

The method for taking the appeal is set out in Rule 36.9. In the case at bar, the attorney Belew was not relieved as counsel by the trial court before he filed the notice of appeal. Once the notice of appeal was filed, he was obligated to obtain permission from this Court to withdraw in accordance with Supreme Court Rule 11 (h). Ellis v. State, 276 Ark. 560 (July 12, 1982). Rule 11 (h) in pertinent part states:

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after the notice of appeal has been given shall be addressed to this Court, shall contain a statement of the reason for the requests, and shall be served upon the defendant appealing.

Counsel, whether retained or appointed, cannot file the notice of appeal and sit idle. When a person convicted of a crime desires an appeal, his constitutional right to effective assistance of counsel is denied where counsel fails to pursue the appeal. See Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). It is imperative that counsel abide by the rules of procedure, and it is incumbent upon this Court and the trial courts to see that the rules are consistently followed. To do otherwise leads to selective enforcement of the rules and confusion as to what constitutes proper appellate procedure.

In light of his failure to follow the procedure prescribed for withdrawal from a case, Belew remains attorney of record. He is therefore responsible for the duties imposed on him by the rules, statutes and opinions of the Court. Since the appellant has furnished this Court with an affidavit attesting to his indigency and is eligible to have counsel appointed, we will grant Belew’s motion to be relieved as retained counsel and appoint him counsel on appeal. A writ of certiorari shall be issued to prepare the record.

A copy of this opinion shall be forwarded to the Committee on Professional Conduct.