author:
George Rose Smith, Justice. J. Fred Jones, Justice,
      John A. Fogleman, Justice,

text:
    Alex STREETT, Prosecuting Attorney, Fifth Judicial District v. Russell ROBERTS, Circuit Judge, Fifth Judicial District
    75-211
    529 S.W. 2d 343
    Opinion delivered November 10, 1975

      Alex Streett, Pros. Atty., Jim Guy Tucker, Atty. Gen., by: Jack Lassiter, Asst. Atty. Gen., for Petitioner.

      George Hartje, William M. Clark, for Respondent.
   George Rose Smith, Justice.

The petitioner, as prosecuting attorney of the Fifth Judicial District, seeks a writ of prohibition to terminate proceedings by a special grand jury in Faulkner County, impaneled by direction of the respondent as circuit judge of the district. The petitioner alleges that the order impaneling the special grand jury exceeds the authority of the circuit court and is therefore void. Three questions are raised by the pleadings in this court and discussed in the parties’ briefs.

First, does the petitioner, as prosecuting attorney, have standing to question the method by which the grand jury was selected? We have no doubt that he has. It is his statutory duty to “commence and prosecute” civil and criminal actions in which the State or any county in his circuit may be concerned. Ark. Stat. Ann. § 24-101 (Repl. 1962). If the grand jury proceedings are void it is clearly appropriate for the prosecuting attorney to commence and prosecute an action to avoid the waste of the taxpayers’ money necessarily involved in the futile trial of criminal cases that might be tainted with reversible error from the very outset.

Second, is the writ of prohibition the proper remedy? We have no doubt that it is. A basic purpose of the writ is to prevent a court from exercising a power not authorized by law, when there is no other adequate remedy. State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33 (1969). If the circuit court in this instance is exercising its authority in a manner contrary to law, prohibition is the only remedy to provide prompt and effective relief in the public interest.

Third, was the circuit judge’s method of impaneling a special grand jury contrary to law? We have no doubt that it was. There is no dispute about the facts. A regular grand jury selected according to law was in session at the May, 1975, term of the Faulkner Circuit Court. On July 2 the circuit judge discharged that grand jury. On July 15 the judge ordered the county sheriff to select 25 grand jurors from the county. That is the special grand jury whose legality is at issue.

The respondent’s action is defended on the basis of our holding in a number of cases, especially the Rowland case: Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370 (1948), cert. den. 336 U.S. 918 (1949); Brewer v. State, 137 Ark. 243, 208 S.W. 290 (1918); Wilburn v. State, 21 Ark. 198 (1860); and Straughan v. State, 16 Ark. 37 (1855). In some of those cases we recognized that in certain circumstances the circuit court could cause a grand jury to be selected not according to the statutes but “in the exercise of its inherent constitutional right.” Rowland v. State, supra. Neither the origin nor the extent of that inherent constitutional power is made clear by the decisions. Moreover, the court recognizes that even that inherent authority is subject to legislative control. For instance, in Rowland we cited Wilburn as authority for the existence of the inherent constitutional right, but in Wilburn the court took pains to say: “Whatever practical inconvenience may result from this construction, it must be remembered that the whole subject is within the control of the legislature, and that we have no authority to sanction a departure from what would seem to be an imperative provision of the statute.”

Even though the General Assembly apparently tolerated the courts ’ exercise of the asserted inherent power, the basic decisions were rendered in 1855 and 1860. That was shortly before the adoption of the Fourteenth Amendment and the better part of a century before the Supreme Court began to interpret that Amendment as severely limiting the freedom of the States in the selection and composition of grand juries and petit juries.

However long the legislative silence with regard to jury selection may have continued in Arkansas, it certainly ended in 1969, when Act 568 made the use of the jury wheel mandatory in the selection of grand and petit jurors. Ark. Stat. Ann. §§ 39-101 to -108 and 39-201 to -220 (Supp. 1973). That statute was obviously intended by the General Assembly to put an end to the possible constitutional infirmities in the earlier systems of jury selection. That the jury-wheel method of selection is imperative is made plain by Section 26 of Act 568: “No person shall be summoned to serve as a grand or petit juror who has not been selected under the provisions of this Act, unless this requirement is waived by the parties.” § 39-218. We cannot reasonably interpret the words “No person” to mean 25 persons, as the respondent’s argument would have us do.

We are not overlooking counsel’s reliance upon Ark. Stat. Ann. § 43-934 (Repl. 1964), which provides that when a grand jury is not in session the circuit court in its discretion may, by an order entered of record, impanel a special grand jury. That statute, originally part of the Revised Statutes of 1838, was amended by Initiated Act 3 of 1936. We do not construe it to exempt the courts from all legislative control in the matter of selecting special grand juries. The selection must still be made according to the governing statutes. Consequently the jury-wheel law was effective to fill the gap left by Section 43-934, even though the jury-wheel act did not receive the two-thirds vote that is required to amend an initiated act. There was no amendment, simply an implementation.

It follows from what we have said that the circuit court was without authority to impanel a special grand jury without complying with the safeguards and procedures contained in the 1969 act requiring the use of the jury wheel in the selection of grand juries and petit juries.

The writ of prohibition is granted.

Jones and Byrd, JJ., concur. Fogleman, J., dissents.

J. Fred Jones, Justice,

concurring. I concur with the majority opinion in this case but I desire to express my additional reasons for granting the writ.

The Criminal Code, Ark. Stat. Ann. § 43-901 (Repl. 1964), provides: “The selecting, summoning, and impaneling of a grand jury shall be as prescribed by law.” When Rowland v. State, 213 Ark. 780, 223 S.W. 2d 370, relied on by the respondent, was decided in 1948, Ark. Stat. Ann. § 39-201 (Repl. 1962) provided: “The circuit courts, at their several terms, shall select three (3) jury commissioners. . .” This section then prescribed the qualifications and oath to be administered to the commissioners. The duties of the commissioners in the selection of grand jurors were then prescribed and set forth in § 39-206. Section 39-213 then provided as follows:

“The grand jury shall be selected from those designated as grand jurors, but if any should be absent, incompetent to serve, or excused, the deficit shall be made up by taking a sufficient number of competent alternates present, in the order in which their names appear upon the list. If there shall not be a sufficient number of competent grand jurors and alternates present and not excused to form the grand jury, the court may compel the attendance of absentees, or order bystanders to be summoned to complete the jury.”

Section 39-222 then provided:

“If, for any cause, the jury commissioners shall not be appointed, or shall fail to select a grand or petit jury, as provided in this chapter, or the panel selected shall be set aside, or the jury lists returned in court shall be lost or destroyed, the court shall order the sheriff to summon a grand or petit jury of the proper number, who shall attend and perform the duties thereof, respectively, as if they had been regularly selected.”

Thus, it is seen that circuit judges and sheriffs had rather unlimited authority and discretion in the selection of grand jurors when Rowland v. State, supra, was decided, and it was apparently under this last section (§ 39-222) that the respondent circuit judge acted in the case at bar. Whatever may have been the authority and discretion in the impaneling of grand juries in 1948, that authority was limited to the procedure as prescribed by law in Act 568 of 1969. I do not question the authority of the Legislature to limit or prescribe the method and procedure of selecting grand juries.

Section 9 of Act 568 of 1969 provides for the appointment, qualifications and oath to be administered to not less than three or more than 12 jury commissioners, and Section 11 of the Act provides as follows:

“If any Commissioner shall become disqualified, die, or be excused, the Judge may, in his discretion, appoint a successor commissioner.”

Section 26 of the Act provides as follows:

“No person shall be summoned to serve as a grand or petit juror who has not been selected under the provisions of this Act, unless this requirement is waived by the parties.”

Section 25 of the Act provides for the drawing of grand jurors “from the wheel or box from which petit jurors are drawn,” and provides that “the Circuit Judge may direct the Jury Commissioners to provide the minimum number of names for a separate grand jury wheel or box. . .”

Section 20 of the Act provides as follows:

“If at any time it appears that a sufficient number of qualified jurors are not available to try scheduled cases, additional names may be drawn and recorded in the Jury Book in open court. These jurors shall be summoned as provided for in Section 18. The Circuit Judge may, at any time, in the exercise of his discretion direct the Jury Commission who selected the original names placed in the wheel or box or new Commissioners designated by him to meet and submit the names and last known addresses of additional registered voters whom the Commissioners believe to be qualified jurors. These names and addresses shall be placed by the commissioners within the wheel or box when it is next unlocked in open court and prior to any additional drawing of jurors, and a master list shall be presented to the court as provided in Section 13.”

Ark. Stat. Ann. §§ 39-206, 39-213 and 39-222, supra, were specifically repealed by Section 30 of Act 568, and Section 31 repealed all laws and parts of law in conflict with Act 568.

There is no question in my mind that the writ should be . granted.

Conley Byrd, Justice, concurring. The suggestion in Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370 (1948), that a circuit court has “inherent authority” not given to it by the constitution should be overruled. The Arkansas Constitution, Art. 4, § 1, provides:

“The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.”

The constitutional framers, therefore, built in a workable and desirable system of checks and balances to prevent or make harmless the abuse or usurpation of power by any one of the three departments of government. By observing how easily Mrs. Indira Gandhi of India flouted the election laws of her country through her control of both the legislative and executive branches of her country’s government, any student of government can understand the necessity for the zealous observance of the constitutional mandate on the separation of powers. Without such zealous observance of the separation of powers, any modern day Napoleon could arrogate unto himself the right to determine not only those who will be prosecuted but also those who will be elected. It should be remembered that Mrs. Gandhi caused a number of arrests to be made before the legislative branch exonerated her. Consequently, I respectfully suggest that any supposed inherent authority of any department of government to exercise the powers of another department should be disclaimed and denied at the first and every other opportunity.

For the reasons stated, I respectfully concur.

John A. Fogleman, Justice,

dissenting. In order that this case be put in proper focus, we must consider the question we are really deciding. The question is “Does any circuit judge in Arkansas have the power, in his discretion, to impanel a special grand jury when the regular grand jury has been discharged and the jury wheel has been quashed?” I fear that this case has not been so viewed. We are not concerned here with the validity or propriety of the order quashing the jury wheel. There is nothing in this record to establish any improper, ulterior or arbitrary motives on the part of the circuit judge in the actions taken by him. We cannot presume that he has acted improperly. Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242. It is also important that attention not be diverted to a question not before us, i.e., the question whether the special grand jury selected met constitutional requisites that it be a representative cross section of the community, selected without discrimination against any recognizable group entitled to equal protection.

It is elementary that the writ of prohibition will not be granted unless the petitioner’s right to it has been clearly established and the tribunal against which it is sought is wholly without jurisdiction. Arkansas State Highway Commission v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125. If there were evidence that the circuit judge had acted from grossly improper motives, a different question would have been presented, and we might have been able to say that such a flagrant abuse of discretion had been manifested as would justify issuance of the writ, although the writ is not to be used to control the trial court’s discretion or correct erroneous action. State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33.

With the focus thus directed, we may examine the basic issue. In my opinion, this case is governed by the decision in Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370. There a grand jury selected by jury commissioners had been discharged. Thereafter, the circuit judge directed the sheriff to summon a special grand jury. The statute relied ujpon is Ark. Stat. Ann. § 43-934 (Repl. 1964), both there and here. That statute has remained intact. The source of its present language was Initiated Act No. 3 of 1936. We made certain specific and controlling statements in Rowland and no attempts to distinguish authorities cited in that opinion change these statements one whit. They are:

Appellant says that the Special Grand Jury should have been selected by the jury commissioners, rather than by the sheriff. But we have repeatedly held, as stated by Mr. Justice Hart in Brewer v. State, 137 Ark. 243, 208 S.W. 290, 291:
“Moreover, under our system, there are two modes by which a grand jury may be lawfully selected. One is where they are selected pursuant to the provisions of the statute; and the other is where the circuit court causes them to be selected in the exercise of its inherent constitutional right. Wilburn v. State, 21 Ark. 198, and Straughan v. State, 16 Ark. 37.”
To the same effect is Edmonds v. State, 34 Ark. 720. The omission, in section 33 of Initiated Act 3 of 1936, of the provision found in Section 3004, Crawford & Moses’ Digest - to the effect that the court might direct the sheriff to summon the Special Grand Jury - is immaterial, since we had said, in the quotation from Mr. Justice Hart above, that the court, in having a Grand Jury summoned by the sheriff, was acting under its “inherent constitutional right.” The existence or absence of a statute - authorizing the court to have the sheriff summon the jury - could make no difference when the circuit court was acting under its inherent constitutional right. So we hold that the circuit court had the power to empanel a Special Grand Jury just as it did in this case. (Emphasis mine.)

Neither legislative action nor silence was of any consequence when Rowland was decided. Since that time only the background and the personnel of the court have changed.

This brings us to an examination of the jury wheel law. Ark. Stat. Ann. § 39-101 et seq. (Supp. 1973). It requires the appointment of jury commissioners prior to November 2 in each year to select prospective jurors for the “following calendar year”. § 39-201, 205 (Supp. 1973). They are required to reconvene from day to day until they have selected the number of names required. § 39-205. Those names are placed in the jury wheel. § 39-206 (Supp. 1973). The circuit judge, in his discretion, may direct the commissioners who selected the original names to meet and submit additional names to be placed in the jury wheel. § 39-212 (Supp. 1973). This section does not apply when the jury wheel is quashed. The only provision prescribing action when the jury wheel is quashed is § 39-214 (Supp. 1973). When the circuit judge sustains a challenge to the wheel, he must appoint a jury commission of not less than three members to select a sufficient number of prospective jurors to constitute a panel of jurors for the trial of a cause. If that panel of jurors is exhausted prior to the formation of the particular trial jury, this new commission must be reconvened to place additional names on the list (not in the jury wheel), to be summoned as special jurors in such numbers as are deemed necessary to complete the jury for the trial of the cause.

This all leads me to certain inescapable conclusions. The first is that once the jury wheel has been filled, the jury commission originally appointed goes entirely out of existence and has no functions, duties or powers except as provided by § 39-212. The commissioners cannot be recalled to act as commissioners under § 39-214, because of the prohibitions of Ark. Stat. Ann. § 39-202 (Supp. 1973). There is no provision whatever for the selection of prospective grand jurors when the jury wheel has been quashed.

The only provisions relating to grand jurors are Ark. Stat. Ann. §§ 39-217 and 39-205 (Supp. 1973). Under these sections the circuit judge may either draw grand jurors from the jury wheel or require the original jury commission appointed to select the required number of names for a grand jury wheel. Names of a panel of grand jurors are to be drawn from the grand jury wheel, if there is one, and from the petit jury wheel, if there'is not. A grand jury so selected is to serve during the calendar year for which it is selected unless sooner discharged by the court. There is no provision whatever for the selection of a special grand jury after the regular grand jury selected has been discharged or, as here, when the jury wheel from which they might be selected has been quashed.

If § 39-218 has the impact accorded it by the majority, then there is absolutely no means of convening a special grand jury after the regular grand jury has been discharged. The General Assembly certainly did not mean to create such a void. We are actually left with the same situation that existed when Rowland was decided.

Such a void is wholly undesirable. Even though grand juries are not as important in the scheme of law enforcement as they were before the adoption of Amendment 21 to our constitution, they may still play a very vital role. The grand jury is still an arm of the circuit court. Spight v. State, 155 Ark. 26, 243 S.W. 860. It is an inquisitorial body with broad investigatory powers. Collins v. State, 200 Ark. 1027, 143 S.W. 2d 1; Ex parte Faulkner, 221 Ark. 37, 251 S.W. 2d 822. Grand jurors are required to present to the grand jury all law violations of which they have knowledge or may receive information. Ark. Stat. Ann. § 43-904, 909 (Repl. 1964). Grand juries are charged with inquiring into cases of persons, either in jail or on bail, who have not been indicted or informed against, into the condition and management of public prisons, into willful and corrupt misconduct in office of public officers and into all public offenses. Ark. Stat. Ann. § 43-908 (Repl. 1964). It may examine all public records and has access to all public prisons [Ark. Stat. Ann. § 43-910 (Repl. 1964)], and has the duty of examining the condition of accounts of collecting officers, dockets of justices of the peace, and matters relating to the common school fund. Ark. Stat. Ann. § 43-911 (Repl. 1964). It may discharge a defendant bound over, but not charged, from custody or exonerate his bail, subject to approval of the court. Ark. Stat. Ann. § 43-921 (Repl. 1964). It may compel a witness to testify even though he claims privilege against incrimination. Ark. Stat. Ann. § 28-532 (Supp. 1973).

As a cross section of the community, it is the voice of the citizens as distinguished from that of any official, elected or appointed. In the field of criminal prosecutions it may be an aid or supplement to a prosecuting attorney. Or it may fill a void where a prosecuting attorney is not using the powers of his office to institute prosecutions that should be commenced. If the grand jury is an arm of the court, it is absurd to suggest that a circuit judge who is made aware of investigations that should be conducted or law violations that are not being prosecuted must sit silently arid impotently until the next calendar year if the wheel from which a grand jury should be drawn has been quashed or exhausted and the regular grand jury, if one has been impaneled, has been discharged.

While I have found it unnecessary thus far to reach the question whether, under the separation of powers, the General Assembly may regulate and control the inherent constitutional powers of the judicial department, I cannot agree with the majority that it can do so, in spite of the language quoted from Wilburn v. State, 21 Ark. 198, decided before our last four constitutions came into existence. I do not mean to suggest that the doctrine of separation of powers did not constitute a part of the Constitution of 1836.1 do mean to suggest that the quotation seized upon from Wilburn was, in the first place, dictum, pure and simple, and that it was not addressed to its holding that there were two methods for selection of a grand jury, i.e. pursuant to statute and in the exercise of the inherent constitutional powers of the circuit court. The quotation was addressed to the construction of a statute governing the selection of a regular grand jury by the county court, not the circuit court. The question raised was the validity of an indictment because four of the grand jurors were not selected by the county court at the time required by law. The court held it invalid. The language which precedes that quoted in the majority opinion is:

If the County Court had general power to select grand jurors, we might be inclined to hold that so much of this provision as prescribed a particular time when the power is to be exercised, was directory merely. But it has no such power. The power given is a special one, and the enacting clause of the statute, which confers it, also expressly limits its exercise. And the conclusion that the legislature probably did not intend the County Court should select grand jurors at any other time than that mentioned, is forfeited by the third section of the act, which makes it the duty of the sheriff to select and summon the requisite number himself if the term of the County Court, at which they are to be selected, is not held. [Emphasis mine.]

I also mean to say that the language quoted by the majority from Wilburn has not been applied in other cases, before or after Wilburn was decided. In State v. Morrill, 16 Ark. 384, where we were dealing with the inherent constitutional powers of courts to punish contempt, we said:

The Legislature may regulate the exercise of, but cannot abridge the express or necessarily implied powers, granted to this court by the constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government: and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the governments of the American people.

We followed Morrill in stating that the legislature could not change the number constituting a jury from the common law requirement of twelve. Cairo v. Fulton Rlrd. Co. v. Trout, 32 Ark. 17. In holding that the General Assembly could not require this court to give written reasons for its decisions in Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751, we quoted from an opinion of Mr. Justice Field in Houston v. Williams, 13 Cal. 25.

He said:

If the power of the Legislature to prescribe the mode and manner in which the judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. If the Legislature can require the reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written and the ink which shall be used. And yet no sane man will justify any such absurd pretension; but where is the limit to this power if its exercise in any particular be admitted?

In keeping with the principle, we have held that the legislature cannot continue cases in the courts (Burt v. Williams, 24 Ark. 91), or prescribe rules of interpretation (Files v. Fuller, 44 Ark. 273), or require continuance of cases in which a legislator was an attorney, regardless of the time when he became associated with the case (McConnell v. State, 227 Ark. 988, 302 S.W. 2d 805).

Needless to say, I would deny the writ.

      It seems to me that United States Supreme Court interpretations under the Fourteenth Amendment have no other application. I am not aware of any case that has any impact upon the method of selection, so long as it does not result in discrimination.

      I am not aware of any contention that Ark. Stat. Ann. § 39-218 should be read “Twenty-five persons shall be summoned to serve as a grand or petit juror who [have] not been selected under the provisions of this Act, unless this requirement is waived by the parties.” Putting the issue thus begs the question.

      This is not intended to be an enumeration of every power and duty of the grand jury. I only intend to point out that the importance of avoiding any situation in which a circuit judge would have to sit and await the expiration of a calendar year.

      I do not mean to imply that such a situation exists in this case. I am speaking hypothetically only. The record before us has no such implication.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Eben ADKINS et al v. E. G. ADKINS and Elmer B. ADKINS
    75-124
    529 S.W. 2d 144
    Opinion delivered November 10, 1975

      Chambers & Chambers, for appellants.

      Anderson & Grumpier, for appellees.
   J. Fred Jones, Justice.

This is an appeal by a number of heirs and cotenants in estate lands from that portion of a chancery court decree of partition which awarded contribution against their distributive shares for back taxes and indebtedness paid by Elmer B. Adkins, one of the heirs and cotenants while in possession of the estate lands.

The second page is missing from the appellants’ brief but the facts appear as follows: Gus Adkins was the owner of the lands here involved when he died intestate in 1914. He was survived by his widow Mary Adkins and several children, including the plaintiff-appellants Gene Terrell and Eben Adkins and the defendant E. G. Adkins. E. G. Adkins died in the course of this litigation with his interest in the property passing to his widow, the appellee Elmer B. Adkins, by prior deed creating a tenancy by the entirety.

After Gus Adkins’ death in 1914, his widow Mary Adkins married a Mr. Russell. In 1938 Mary Adkins Russell executed a deed of trust on the estate property in favor of A. L. Rogers as trustee for M. E. Peace Building Supply, as security for building materials furnished and sold to Mr. and Mrs. Russell by Peace. In M$rch, 1939, E. G. Adkins paid the balance owing on this account and apparently took an assignment of the notes and the deed of trust. Different ones of Mrs. Russell’s children lived with her on the property here involved and in 1949 or 1950 E. G. Adkins and his wife, the appellee Mrs. Elmer B. Adkins, moved onto the property with Mrs. Russell. They continued to live in the home where Mrs. Russell occupied two rooms until her death in 1956, and they have continued to live on the property since Mrs. Russell’s death. E. G. Adkins paid the taxes on the property from 1949 through 1973 except in 1972 when the taxes were paid in the name of the estate by one of the appellants, Eben Adkins.

The original petition filed by the appellants was styled “Complaint in Equity” with E. G. Adkins and the appellee Elmer B. Adkins designated as defendants. The complaint set out the alleged individual interest of each of the parties and the description of the land. The complaint recited that the parties owned the land as tenants in common and had been unable to reach an agreement as to its division. The complaint then prayed for a partition in kind or if not susceptible to partition in kind, that the land be sold and the proceeds divided.

Answer was filed by E. G. Adkins and Elmer B. Adkins in which they alleged that the described land had forfeited for the nonpayment of taxes for the years 1927, 1932, and 1933, and that E. G. Adkins redeemed the property from said sale. The answer then alleged the payment of $602.49 to M. E. Peace Builders Supply at the request of the life tenant and the appellant-plaintiffs. The answer then alleged that in approximately 1946 the property became unoccupied and at the request of the cotenants, E. G. Adkins and Elmer B. Adkins moved onto the property and had paid the taxes thereon from 1946 to date. E. G. Adkins and Mrs. Adkins then prayed that the amounts they had paid be assessed as costs and declared a lien upon the property and that they recover said sums together with interest at the rate of ten per cent per annum from the dates the amounts were paid.

The appellants filed a “Reply to Answer of Defendants” in which they denied that the defendants had redeemed the property from the tax sale under forfeiture and alleged that if there was such redemption, their claim for same was barred by “laches and/or limitations.” The appellants denied the allegations in the answer pertaining to the Builders Supply account but alleged that if such payment was made as alleged in the answer, claim therefor was barred by laches and/or limitations. The appellants denied the allegations and answer pertaining to the payment of taxes but alleged “that any payment of taxes made by the defendants would be set-off for all benefits received for the use and enjoyment of said lands by the defendants.” The appellants then alleged that the defendants had cut timber and pulpwood from the lands involved and that they should be required to account to the appellants for their proportionate interest in the timber so cut and sold.

When the issues were finally joined in the trial court, the cotenants in possession, Mr. and Mrs. E. G. Adkins, were requesting contribution for the expenses they set out, including the taxes they had paid, and the appellant-plaintiffs were contending the statute of limitations had run against the claim for the material bill alleged by the defendants; that the claim for back taxes was also barred by limitations but, in any event, should be off-set against the rental value of the property. The chancellor entered a decree for partition setting out the respective interest of all the parties involved and ordered reimbursement to the appellee Elmer B. Adkins in the amount of S3,097.50 to be contributed by the appellants according to their respective interests as heirs and cotenants.

On appeal to this court the appellants rely on the following points for reversal:

“The trial court erred in holding that the three year statute of limitations did not apply to the contribution claims of appellees.
The trial court erred in holding that the appellees in possession should recover for taxes.
The trial court erred in holding that the three year statute of limitations did not apply to tax payments claimed against the tenants in common w'ith the tenant who paid taxes.”

The appellee Mrs. Elmer B. Adkins testified that the mortgage indebtedness incurred by Mrs. Russell amounted to $242.49 for lumber and materials used in buildings on the estate land, and $300 for additional materials purchased and used on other land. She said the indebtedness was past due with accrued interest amounting to $60; that Mrs. Russell was being threatened with foreclosure and sale of the property under the deed of trust, and that all the appellant heirs and cotenants, except one, requested her husband to pay the indebtedness and that they agreed to repay him. She said her husband paid the amounts as above set out and she itemized the taxes her husband had paid.

We are of the opinion the chancellor erred in misapplying the law to the facts in this case. The record is not clear as to how the chancellor arrived at the exact amount of the claim allowed but apparently interest accounted for a considerable portion of it. We find it unnecessary to attempt a determination of the correctness of the amounts involved for we are of the opinion the claim for reimbursement of the amount paid on the mortgage indebtedness was barred by the statute of limitations, and that the chancellor’s award for back taxes was against the preponderance of the evidence.

Apparently the chancellor considered the deed of trust executed by Mrs. Russell and subsequently sold to E. G. Adkins as creating a valid incumberance and lien on all the undivided interests in the land. According to the clear and uncontradicted evidence, however, Mrs. Russell only owned a life estate in the property when she executed the deed of trust in 1938, . which was purchased by E. G. Adkins the following year. Mrs. Russell’s life estate was extinguished by her death in 1956 and even at the time of her death, the statute of limitations had long since run on her personal indebtedness evidenced by the notes secured by the deed of trust; and, certainly, the statute had barred any claim E. G. Adkins might have had against the appellants on any oral promises of reimbursement they might have made to him in 1939. Under no stretch of the imagination could this claim of E. G. Adkins have constituted a valid claim against the estate of Gus Adkins or against the undivided interests of his heirs and co-tenants in his estate lands. The appellee Mrs. Elmer B. Adkins simply had no right of contribution from her cotenants on this thirty-six year old item.

We do not reach the question of the statute of limitations on the claim for back taxes because we agree with the appellants that the claim for taxes under the evidence in this case should be set-off against the rental value of the property. It is clear from the preponderance of the evidence that the appellees left their own property some two or three miles from the property here involved and moved onto the estate property in 1949 prior to the death of the life tenant Mrs. Russell. It is clear that they continued to live on and occupy the property, as they had a right to do as cotenants, from the date of Mrs. Russell’s death in 1956 until the present time without payment of rent. The appellees contend that such occupancy was effected at the request of the appellants, but the appellants denied that they made such request. There is no evidence at all as to the rental value of the property and no evidence as to improvements or value of improvements made thereon. The total taxes paid, as alleged and testified by the appellee Mrs. Elmer B. Adkins, amounted to less than $600 for the 20 years she and her husband occupied the property after 1949.

In Ward v. Pipkin, 181 Ark. 736, 27 S.W. 2d 523, we said:

“It is not shown what the rental value is, but in Patterson v. Miller, 154 Ark. 124, 241 S.W. 875, it was held that a tenant in common in possession, who has received rents enough to keep the taxes paid, is required to pay the taxes for the benefit of himself and co-tenants. In the absence of a showing to the contrary, it will be presumed that the rental value was sufficient to pay the taxes.”

We recognize that the Ward and Patterson cases, supra, are not squarely on all fours with the case at bar as to their facts but we conclude that where a cotenant in common of undivided estate property goes into possession and occupies the property and pays the taxes thereon while in possession, it is only equitable that the taxes so paid should be set-off against the rental value of the property and, in the absence of any proof of rental value, it will be presumed that the rental value amounts to at least as much as the taxes paid.

The decree is reversed and the cause remanded for such further proceedings, not inconsistent herewith, as may be necessary in the partition of the property here involved.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    The CARAWAY BANK v. UNITED STATES OF AMERICA
    75-127
    529 S.W. 2d 351
    Opinion delivered November 10, 1975
    [Rehearing denied December 8, 1975.]

      Douglas Bradley and Jon R. Coleman, for appellant.

      Fletcher Jackson, U.S. Atty., for appellee.
   Conley Byrd, Justice.

At issue here is the sufficiency of the description of real estate in a mortgage to have priority over a federal tax lien. Federal Law, 26 U.S.C. § 6323, recognizes that a federal tax lien is not superior to perfected security interests. The decisions interpreting the federal law point out that a competing non-federal lien is not perfected and choate until it is definite as to (1) the identity of the lienor, (2) the property subject to the lien, and (3) the amount of the lien, 94 ALR 2d 748, 755 § 3.

The Arkansas law with respect to the sufficiency of description is stated by Judge Lemley in United States v. Westmoreland Manganese Corp., 134 F. Supp. 898 (E.D. Ark. 1955), as follows:

“It is a well settled principled Arkansas law that a mortgage will not be held void for uncertainty, even as to third persons, where by any reasonable construction it can be sustained; and where the description used furnishes a key whereby a person, aided by extrinsic evidence, can ascertain what property is covered, such description is sufficient. ...”

Other laws bearing upon the issues here are Ark. Stat. Ann. § 17-1201 (Repl. 1968), which authorizes the subdivision of lands and the recordation of the plats thereof, and Ark. Stat. Ann. § 17-1203 (Repl. 1968), which provides that conveyances made according to the descriptions platted and recorded will be sufficient.

It is admitted that the federal tax lien was filed and a levy made upon the property subsequent to the mortgage to The Caraway Bank. That mortgage described the property as follows:

“A part of the SE!4 of SW!4 of Sec. 21, a part of the NE Va of NW Va of Sec. 28 all in Township 18 N., Range 5 W., all in Hidden Valley, more properly defined as follows:
Beginning at the Northeast Corner of Lot 21, Block 1, West Lake Shore Addition, thence North 84 degrees, 32 minutes West, 201 feet, thence North 80 degrees, 21 minutes West, 173 feet to the Southeast Corner of Lot 25, Block 3 of Ridgecrest Addition, thence North 10 degrees, 48 minutes West, 312 feet to the Northeast Corner of Lot 28, Block 3, of Ridgecrest Addition, thence South 79 degrees, 12 minutes West, 150 feet to the Northwest Corner of Lot 28, Block 3 Ridgecrest Addition, thence North 88 degrees, 32 minutes and 30 seconds West, 30.40 feet, thence North 7 degrees, 53 minutes East, 187.60 feet, thence North 34 degrees, 33 minutes East, 433 feet, thence North 5 degrees, 55 minutes East, 44.96 feet, thence South 85 degrees, 42 minutes East, 40 feet to the Northwest corner of Lot 8, Block 1 of Ridgecrest Addition, thence South 26 degrees, 47 minutes East, 476 feet to the Southwest Corner of Lot 14, Block 1, of Ridgecrest Addition, thence South 19 degrees, 32 minutes and 30 seconds East 95.51 feet, thence South 8 degrees, 46 minutes East, 258.95 feet, thence South 2 degrees, 05 minutes East, 140.70 feet to the point of beginning. Contains 7 acres more or less (one acre of this is in roads).”

The foregoing description is deficient in that Hidden Valley is not in Township 18 North. However, the recorded plat of Hidden Valley correctly shows that Hidden Valley is in Township 19 North. Thus, we see that the mortgage contains two general descriptions, one which erroneously describes the property as being in Township 18 North and the other which correctly describes the property as being “all in Hidden Valley.” Furthermore, the metes and bounds description, without the necessity of extrinsic evidence, furnishes the key to show the error in the stated township description in the deed. The actual metes and bounds description of the property involved is shown on plaintiff’s Exhibit 8 as follows:

Since it is shown that Hidden Valley was a properly recorded subdivision and that the mortgage itself furnished a key not only for correctly describing the property but also showed the error in the reference to “Twp.-18-N.”, it follows that the mortgage description is good as against a claim of a bona fide purchaser without notice, if the description is good as recorded against a bona fide purchaser, we can see no reason why it should not be good as against the federal tax lien pursuant to 26 U.S.C. § 6323.

The appellee, United States of America, relies upon McLain v. Jordan, 174 Ark. 738, 298 S.W. 10 (1927), to support the trial court’s ruling in its favor. There Jordan’s mortgage described the property as being in Section 15 rather than in the correct Section 16. We held a recorded and subsequent mortgage containing a correct description to be superior to Jordan’s. However, unlike The Caraway Bank’s mortgage, the Jordan mortgage did not furnish a key to show both the error and the correct description.

For the foregoing reasons, we hold that the trial court erred in holding that appellee’s tax lien was superior to the mortgage.

Reversed and remanded.

Harris, C.J., dissents.


text:
    PETE SMITH COMPANY, Inc. v. CITY of EL DORADO, Arkansas
    75-137
    529 S.W. 2d 147
    Opinion delivered November 10, 1975

      Plegge, Lowe & Whitmore, for appellant.

      J. V. Spencer, III, City Atty., for appellee.
   Conley Byrd, Justice.

The appellant Pete Smith Company, Inc., contracted with the appellee, City of EJ Dorado, Arkansas, to construct an 18-hole golf course for $230,329.88. After appellant had performed all of the clearing and dirt work in accordance with the contract specification, a torrential rainfall of 12.47 inches occurred in a 10 hour period. Substantial erosion resulted from this rainfall. The undisputed testimony is that it will cost in excess of $60,000 to restore the golf course to its condition prior to the rain. Appellant, by way of a declaratory judgment, sought relief under the doctrine of “Commercial Frustration.” The trial court denied relief. Appellant appeals raising only the issue of Commercial Frustration.

The commercial frustration doctrine is set forth in Restatement of Contracts § 288 (1932), as follows:

“Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears.”

The Restatement wording of the doctrine is criticized by Corbin, see 6 Corbin on Contracts § 1323 n. 19 (1962).

Judge Riddick stated the doctrine, in Pacific Trading Co. v. Monton Rice Milling Co., 184 F. 2d 141 (8th Cir. 1950), as follows:

“Under the doctrine of frustration as relieving a party from its contractual obligations, performance remains possible but is excused whenever an event not due to the fault of either party supervenes to cause a failure of consideration or destruction of the expected value of performance. ...”

Also, the doctrine is recognized between buyers and sellers of goods under the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-615 (Add’n 1961).

6 Corbin on Contracts § 1361 points out that a partial frustration by subsequent events is less likely to be held to discharge a contractor from duty than is total frustration. In the cases upon which appellant relies — i.e. Butterworth v. Tellier, 185 Ark. 357, 47 S.W. 2d 593 (1932) — there was a total frustration.

The contract before us here provides:

“Section 1, INSTRUCTIONS TO BIDDERS, § 1-02, Local Conditions: Bidders shall read and examine the Specifications and Plans, and make their own estimates of the existing facilities and difficulties which will attend the execution of the work called for by these Contract Documents, the Specifications and the Plans, including local conditions, uncertainty of the weather, and all other contingencies. Bidders shall satisfy themselves by personal examination of the location of the proposed work, and by such means as they may choose, as to actual conditions and requirements. Information derived from the Plans and Specifications or from the Engineer or his assistants shall not relieve the bidder of this responsibility.
Section 2, GENERAL CONDITIONS OF THE SPECIFICATIONS, § 2-06, The Contractor: It is understood and agreed that the Contractor has, by careful examination satisfied himself as to the nature and location of the work, the information of the ground, the character, quality and quantity of the materials to be encountered [in] prosecution of the work, the general location conditions, and all other matters which can in any way affect the work under this Contract. No verbal agreement or conversation with any office, agent or employee of the Contracting Authority, either before or after the executing of this contract shall affect or modify any of the terms or obligations herein contained.
Section 2, GENERAL CONDITIONS OF THE SPECIFICATIONS, § 2-13, Protection of Work and Property: The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Contracting Authority’s property from injury or loss arising in connection with the Contract. We shall make good any damage, injury, or loss, except such as may be directly due to errors in the Contract Documents or caused by agents or employees of the Contracting Authority. He shall adequately protect adjacent property as provided by law and the Contract Documents. He shall provide and maintain all passageways, guard fences, lights, or other facilities for the protection required by public authority of local conditions.”

Thus, from the foregoing it follows that the chancellor did not err in denying appellant relief under the commercial frustration doctrine whether such denial be placed upon the theory that the contract expressed a contrary intent or the theory that the doctrine is not applicable in the event of only a partial frustration that only increases the cost of performance.

Affirmed.


author: PER CURIAM

text:
    James J. KELLY v. Robert L. ROGERS
    75-140
    529 S.W. 2d 647
    November 10, 1975

      James J. Kelly, Pro Se, for appellant.

      Hartman Hotz, for appellee.
   PER CURIAM

The appellant, James J. Kelly, apparently wishing to practice law without taking and passing the bar examination, filed a complaint in the circuit court against “Robert L. Rodgers [Rogers], Secretary and Law Examiner Board.” No service of process appears to have been had, but Rogers filed a demurrer to the complaint. The court sustained the demurrer and dismissed the complaint. We affirm.

The complaint states no facts constituting a cause of action against Rogers, who is secretary of the State Board of Law Examiners, or anyone else. The practice of law is not a profession open to a person simply because he wishes to engage in it. “The right to practice law is not an absolute right, but a privilege only.” Wernimont v. State ex rel. Little Rock Bar Assn., 101 Ark. 210, 142 S.W. 194, Ann. Cas. 1913D, 1156 (1911). Kelly’s complaint states no facts showing either that he is entitled to take the bar examination or that he is entitled to practice law as a matter of constitutional right.

Affirmed.

Fogleman, J., not participating.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Arthur Lee BOTANY v. STATE of Arkansas
    CR 75-34
    529 S.W. 2d 149
    Opinion delivered November 17, 1975

      Bart Mullis, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Arthur Lee Botany, was convicted of felony murder in the shooting of K.B. Allen during the perpetration of robbery. His punishment was fixed at life imprisonment without parole. Inasmuch as a clear-cut prejudicial error requires a new trial, we discuss that point and other asserted errors that may arise upon a second trial.

The decedent was shot in the course of a robbery at his shoe shop. The information jointly charged J.C. Bell, Timothy Armstrong, Jr., and Botany with first degree murder, but Botany was tried separately. The State called Bell as a witness, who denied that he had done anything wrong or had had any part in the crime. The prosecutor was then allowed to question Bell in detail about a confession, which Bell asserted to have been the product of coercion. The State was also allowed to introduce Bell’s confession, through the testimony of the officer who obtained it. That procedure was reversible error, for the reasons stated in Lang v. State, 258 Ark. 504, 527 S.W. 2d 900 (1975), and Comer v. State, 222 Ark. 156, 257 S.W. 2d 564 (1953).

We need mention the other points only briefly. The State should not have been allowed to prove that when Botany was arrested there was a pistol in the car, for that weapon had nothing to do with the offense on trial. Rush v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964). Upon a retrial the defense should be permitted to show that Botany’s handwriting deteriorated between the time he signed a waiver of rights and the time he signed a confession. On the other hand, there was no error in allowing the State to interrogate the defense witness Hart about the commission of misdemeanors, for no effort was made to impeach him by proof of such convictions. Gray v. State, 253 Ark. 261, 485 S.W. 2d 537 (1972); Bacquie v. State, 171 Ark. 589, 285 S.W. 2d 18 (1926). The court may have been unduly restrictive in limiting defense counsel’s voir dire examination of prospective jurors, but we cannot anticipate what questions will be asked upon a new trial. Finally, we must assume that there will be no recurrence of an incident in which defense counsel was perhaps criticized too severely in the presence of the jury.

Reversed.

Harris, C.J., not participating.

Foglemaiv and Jones, JJ., dissent in part.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I concur in the reversal and in all of the majority opinion except that part pertaining to the admission of the pistol found in the car when Botany was arrested, because I think it was relevant as evidence of conduct, subsequent to the crime, indicative of guilt, because it had a bearing on questions of his consciousness of guilt and whether he was fleeing from justice at the time, and because it tended to connect him with the crime. It should be noted that this point was not even argued by appellant’s counsel, but, of course, we are bound to review any prejudicial error.

The robbery in which K.B. Allen was killed with a firearm occurred on February 9, 1974. It was stipulated that his death was caused by gunshot wounds to his head inflicted by a .38 caliber weapon. The information charged that the weapon used was a .38 caliber pistol. J. C. Bell and Arthur Lee Botany were placed at the scene of the crime. There was considerable evidence to indicate that they were accomplices in the crime. Botany was apprehended just outside the city limits of Gould by Officers Jerry Green and Henry Tong about 10:00 p.m. on February 10, 1974. After the arrest, a gun was found on the right floorboard of the vehicle. Botany was in the right front seat when the officers stopped the car. Botany bent over with his head toward the dashboard as Sgt. Tong stepped out of his police vehicle. There was a bright light shining on Botany. It appeared to Sgt. Tong that Botany was trying to hide something. The weapon retrieved from the floorboard was a .38 caliber Colt.

Luke Gray was the driver of the vehicle in which Botany was riding when the latter was arrested. Gray testified, without any objections having been made, that Botany had the weapon on his person when the officers stopped his vehicle and that Botany put it on the floorboard when the police turned the light on him. Two witnesses for defendant testified that they had never known Botany to carry a gun. One of these and other witnesses testified that Botany did not have a gun on the day the crime was committed. William Hart was with J. C. Bell when the latter was arrested and told Arthur Botany about the arrest. Thereafter he said he and Botany went first to Goatshed and then to Gould. They were stopped by “a state man” leaving Gould early the next morning but were allowed to proceed. This was prior to the apprehension of Botany.

Botany testified that he had obtained the pistol from “Chee Baby” by letting him have $20 in a gambling game, taking the weapon as security.

Generally, the acts and conduct of an accused at the time of his arrest and the facts and circumstances attendant thereon are admissible in evidence, if they logically tend in any degree to connect him with the perpetration of the crime or show a consciousness of guilt. Banning v. United States, 130 F. 2d 330 (6 Cir., 1942); State v. McGee, 336 Mo. 1082, 83 S.W. 2d 98 (1935); Grigsby v. Commonwealth, 302 Ky. 266, 194 S.W. 2d 363 (1946); 1 Wharton’s Criminal Evidence (13th Ed.) 437, 440, §§ 209, 210; 22A CJS 472, Criminal Law § 628; People v. DePompeis, 410 Ill. 587, 102 N.E. 2d 813 (1951); People v. Beltowski, 71 Cal. App. 2d 18, 162 P. 2d 59 (1945). See also, Lenzi v. State, 456 S.W. 2d 99 (Tex. Cr. App., 1970); Oliver v. State, 491 S.W. 2d 125 (Tex. Cr. App. 1973).

It is relevant to show that after the crime the defendant had in his possession a weapon of the same kind with which the crime had been committed, or which was suitable for its commission, or that he owned or had access to a weapon with which the crime could have been committed. State v. Krebs, 341 Mo. 58, 106 S.W. 2d 428 (1937); Commonwealth v. O’Toole, 326 Mass. 35, 92 N.E. 2d 618 (1950); State v. McLeod, 131 Mont. 478, 311 P. 2d 400 (1957); Banning v. United States, supra; Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235 (1946); 1 Wharton’s Criminal Evidence (13th Ed.) 440, 441, § 221; People v. Gambino, 12 Ill. 2d 29, 145 N.E. 2d 42 (1957); People v. DePompeis, supra; People v. Beltowski, supra. In Silver v. State, 110 Tex. Crim. R. 512, 8 S.W. 2d 144, 60 ALR 290 (1928), it was held that there was no error in permitting the state to prove that three pistols, one of which was .38 caliber, were found in appellant’s car when he was arrested for robbery with firearms, when a .38 caliber bullet had been removed from the body of the victim. See also, Franks v. State, 139 Tex. Crim. R. 42, 138 S.W. 2d 109 (1940). In State v. Long, 195 Ore. 81, 244 P. 2d 1033 (1952), evidence that a rifle and ammunition, used by the defendant at the time of his arrest, which were of the same caliber and kind as that used to shoot and kill the victim in a murder was held admissible. If the weapon was suitable for commission of this crime, it does not matter that the state does not contend that it is the weapon used. People v. Gambino, supra; People v. DePompeis, supra; People v. Beltowski, supra.

It is relevant to show that, when arrested, a defendant reached for a weapon. 22A CJS 476, Criminal Law § 628; Williams v. State, 105 Tex. Crim. R. 22, 285 S.W. 616 (1926). The possession of a loaded weapon by one who is attempting to flee after the commission of a crime is a circumstance to be considered along with all other facts and circumstances in evidence as tending in some degree to prove a consciousness of guilt. Martinez v. State, 140 Tex. Crim. R. 159, 140 S.W. 2d 187 (1939). See also, Grigsby v. Commonwealth, supra. We have held that evidence of the conduct of an accused during the period of his flight from a crime, including any criminal conduct constituting an inseparable párt of the flight, is generally admissible. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884. Action of one fleeing is a circumstance to be considered along with other evidence in determining probable guilt. Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887. The possession of a weapon at the time of arrest, even though not the same type as that used in the crime, is admissible as a circumstance tending to show that the accused contemplated resisting arrest. State v. Hart, 309 Mo. 77, 274 S.W. 385 (1925).

It seems quite clear to me that the weapon found in appellant’s possession was properly admitted in evidence.

I am authorized to state that Mr. Justice Jones joins in this opinion.


author: John A. Fogleman, Justice.

text:
    John O. MAY v. Dell EDWARDS et al
    75-165
    529 S.W. 2d 647
    Opinion delivered November 17, 1975
    [Rehearing denied December 15, 1975.]

      Appellant, Pro Se.

    No brief filed for appellee.
   John A. Fogleman, Justice.

This appeal questions the propriety of the judgment of the circuit court sustaining the demurrer of appellees to appellant’s complaint alleging that he was entitled to the office of alderman of the second ward of North Little Rock and that appellee Edwards was usurping that office. Appellant May also sought to recover from the City of North Little Rock his legal fees incurred in seeking to establish his right to the office. The court, upon sustaining the demurrer, dismissed the complaint. We affirm as to the City of North Little Rock but reverse as to Dell Edwards.

In arriving at our conclusion, we must, in this usurpation action, as in any other, construe the complaint in favor of the pleader. Neal v. Packer, 200 Ark. 10, 139 S.W. 2d 41. See also, Faulkner v. Woodard, 203 Ark. 254, 156 S.W. 2d 243. The plaintiff alleged in his complaint, filed in November, 1974, that: he was duly elected second ward alderman for a four-year term ending December 31, 1974; that he was convicted of inducing an abortion and sentenced on May 23, 1972, but the conviction was reversed and, upon remand, the charge was dismissed on motion of the state on May 30, 1974; on June 12, 1972, the North Little Rock City Council directed the city attorney to obtain a judicial determination of May’s status, but when the Council heard a legal opinion rendered by this attorney, it illegally elected Dell Edwards in the place of May, upon the basis that a vacancy in the office was created by the conviction of May; Dell Edwards is usurping the office and should be removed upon authority of Ark. Stat. Ann. § 34-2201 (Repl. 1962); Edwards should be required to pay the compensation he will receive while usurping the office to May pursuant to Ark. Stat. Ann. § 34-2208 (Repl. 1962).

These allegations must be taken as true. Faulkner v. Woodard, supra. Although a complaint must state facts constituting a cause of action as something more than mere conclusions, when considered on demurrer, it is sufficient if they are stated according to their legal effect, without stating the evidence of the facts alleged. Driesbach v. Beckham, 178 Ark. 816, 12 S.W. 2d 408.

Our statutes have been held to afford a plain, complete, and adequate remedy at law for one entitled to an office but not in possession of it. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667. One entitled to an office has a right to protect his incumbency or to sue an usurper to recover it. Wood v. Miller, 154 Ark. 318, 242 S.W. 573. See also Jessup v. Hancock, 238 Ark. 866, 385 S.W. 2d 24. The action may be maintained against one who is exercising the functions of an office which he cannot hold against his adversary, by reason of a superior right in the latter. Wheat v. Smith, 50 Ark. 266, 7 S.W. 161. For the purpose of such cases, the term usurper is used not merely to denominate one who intrudes himself into an office without color of title, for, as against one having a better right to it, one exercising a public office without an absolute right to it, is regarded as a usurper. Wheat v. Smith, supra. In a usurpation action a defective title is no greater protection than no title at all, and there cannot be a de facto officer when a de jure officer already fills the office. Neal v. Parker, 200 Ark. 10, 139 S.W. 2d 41.

Unless we can say that, as a matter of law, a vacancy existed in the office when May was convicted, without regard to the fact that the conviction was not only subsequently reversed, but the charge dismissed, May has stated a cause of action against Edwards. Meal v. Parker, supra. In this connection, it appears that the trial court may have accepted the argument of appellees, advanced in a memorandum brief accompanying their demurrer, that the matter was res judicata. We cannot sustain the court’s action on this basis. Res judicata is an affirmative defense, which ordinarily must be raised by answer. Hurst v. Hurst, 255 Ark. 936, 504 S.W. 2d 360. It cannot be raised by motion to dismiss. Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531. Since it is an affirmative defense, it cannot be raised by demurrer unless the essential facts appear upon the face of the complaint. In this case they do not. No mention is made in the complaint of any previous litigation between the parties, and courts cannot take judicial notice of prior litigation in other cases even between the same parties. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505; Hurst v. Hurst, supra. Furthermore, in order for the doctrine of res judicata to apply, it must appear that the particular matter involved was raised and determined or that it was necessarily within the issue and might have been litigated in the previous action. Hurst v. Hurst, supra; Fisher v. Fisher, 237 Ark. 321, 372 S.W. 2d 612; Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432. None of these requisites appears on the face of the complaint.

This case is unlike May v. Edwards, 255 Ark. 1041, 505 S.W. 2d 13, where the plea of res judicata was sustained. There the parties stipulated that the same issues had been involved in a previous suit between the same parties, but we held that the issue of Edwards’ tenure and May’s reinstatement had not been involved in the first case. The only contention made in May v. Edwards, supra, was that Edwards’ tenure ended when May’s conviction was reversed. Applying res judicata, we held that it was not, based upon the assumption that a vacancy existed, as had been previously determined, but neither judgment has been pleaded in this case.

Thus, in considering May v. Edwards, supra, on this appeal, we can accord it only precedential value, just as if the parties had been Jones on the one hand and Smith on the other. We did not decide whether there was a vacancy, because the plea of res judicata as to that question was sustained. So we are now faced with the question whether a conviction, which was not Final, automatically created a vacancy in the office, or, if not, whether the city council had the power to declare it vacant on that account.

Art. 5 § 9 of the Constitution of Arkansas provides that no person convicted of infamous crime shall be capable of holding any office of trust or profit in this state. As pointed out in May v. Edwards, supra, no enabling legislation has ever been passed and it was there unnecessary to decide whether this provision is self-executing. We did, however, recognize that it is the fact of conviction that disqualifies one from holding public office, under the authority of Ridgeway v. Catlett, 238 Ark. 323, 379 S.W. 2d 277. This disqualification, under Ridgeway, cannot even be removed by pardon. See also, State v. Irby, 190 Ark. 786, 81 S.W. 2d 419. We have not held the provision to apply automatically, without enabling legislation, except as a disqualification to taking office after election following both conviction and pardon. See State v. Irby, supra. We did, in May v. Edwards, hold that a reversal of a conviction did not restore the right of the person convicted to the office, assuming that there was a vacancy because of the conviction. In this case, the charge has been dismissed, and the presumption of May’s innocence is unimpaired.

The reason one who has been convicted of an infamous crime is prevented from taking office is because he is thereby rendered ineligible just as he would be if he did not possess other qualifications required by law. State v. Irby, supra. It is quite a different matter to consider the effect of ineligibility upon an incumbent. We have said that an office does not ipso facto become vacant when a condition of ineligibility of the incumbent arises after he takes office, if he was eligible when he took office, and the subsequent ineligibility merely affords grounds for removal. Stafford v. Cook, 159 Ark. 438, 252 S.W. 597. We recognized in May v. Edwards, supra, that there were countervailing equities but that conflicting considerations should be resolved in the public interest. This would not require that one absolved of guilt be forever deprived of any benefits of the office to which he was elected by the sovereign people. But May could not be restored to office in this action, because the term to which he had been elected has expired. The only possible result of this suit, insofar as Edwards is concerned, would be recovery of compensation paid for some part of the term to which May was elected. Still, the constitutional section, insofar as an incumbent is concerned, is penal in nature. See Summerour v. Cartrett, 220 Ga. 31, 136 S.E. 2d 724 (1964). There is no applicable act providing for suspension or removal of one charged with an infamous crime such as was applied in Gray v. Independence County, 166 Ark. 502, 266 S.W. 465 and Winfrey v. State, 133 Ark. 357, 202 S.W. 23, even though the legislature might well have adopted such an act. In the absence of legislation providing for suspension or removal or authorizing one or the other by action of some officer, agency or tribunal, this constitutional provision should not be construed to operate as an automatic ouster of an incumbent merely because he has been found guilty of an infamous crime and sentenced when that sentence is not and does not become final. The disqualification is not a part of the punishment for the crime. State v. Irby, supra. It is a collateral effect, not flowing from the offense, but resulting to the offender by reason of the constitutional provision. Arnett v. Stumbo, 287 Ky. 433, 153 S.W. 2d 889, 135 ALR 1488 (1941). We have, on previous occasions, decided what constituted conviction of a felony insofar as enforcement of collateral effects are concerned. We have consistently held that, before such effects are enforced, the judgment must not only not be subject to reversal, but it must also have been carried into effect by actual imposition of sentence. See Owen v. State, 86 Ark. 317, 111 S.W. 466; Huddleston v. Craighead County, 128 Ark. 287, 194 S.W. 17; State Medical Board v. Rogers, 190 Ark. 266, 79 S.W. 2d 83; Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888; Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724. There is no reason why the word “convicted” should be taken to mean something different, even if Art. 5 § 9 be taken to be self-executing, so that an incumbent must be ousted from office upon being found guilty of an infamous crime, without awaiting the final disposition of the case. A judicial definition of the word “convicted” different from any we have previously given it should not be the basis of the highly penal effect of removal of an incumbent when the legislature has not provided either for removal or suspension before the conviction has become final. Other jurisdictions have held that the word “convicted”, in the same or a similar constitutional provision, is to be given the strict legal meaning we have accorded it in the cases above cited and not its popular meaning, so that a conviction must be based upon a final judgment not subject to review. Summerour v. Cartrett, supra. Commonwealth v. Reading, 336 Pa. 165, 6 A. 2d 776 (1939); People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 18 LRA (ns) 684 (1908). Cases based upon constitutional provisions or statutes which expressly declare that an office becomes vacant when the holder is convicted of a felony or infamous crime, such as State v. Sullivan, 66 Ariz. 348, 188 P. 2d 592; McKannay v. Horton, 151 Cal. 711, 91 P. 598; State v. Jurgensen, 135 Neb. 136, 280 N.W. 886; re Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Vogel, 65 N.D. 137, 256 N.W. 404; State v. Levi, 109 W. Va. 277, 153 S.E. 587; People v. Enlow, 135 Col. 249, 310 P. 2d 539; Bell v. Treasurer of Cambridge, 310 Mass. 484, 38 N.E. 2d 660; Atty. Gen. v. Montgomery, 275 Mich. 504, 267 N.W. 550 are neither controlling nor persuasive. We would have an entirely different situation if our constitutional provision so read or if we had such a statute.

This means that May has, on the face of the pleadings, stated a cause of action against Edwards. The reversal of the judgment in favor of Edwards may be a short-lived victory for May when and if the defense of res judicata is properly raised.

Little need be said about the action against the city. May seeks by it to recover only his attorney’s fees in litigation he has conducted in seeking to recover his office. Generally speaking, in this state there can be no recovery of attorney’s fees in the absence of statutory or contractual authorization. There are, of course, exceptions to this general rule. There is no allegation in the pleadings to bring the suit into that category in which attorney fees are sometimes considered when punitive or exemplary damages are to be awarded. See, e.g., Annot 72 ALR 2d 943, 947 (1960). There is no statute authorizing their recovery in a case of this sort. There is no contract that the city breached, even if such damages should be recoverable in such an action (see Fox v. Pinson, 182 Ark. 936, 34 S.W. 2d 459, 74 ALR 583; Restatement of the Law, Contracts 531, § 334.) and the action is not basically one in tort, even if attorney’s fees should be recoverable in an action of that nature. See Restatement of the Law, Torts, 591, § 914.

The parties have rendered us little assistance in the matter. The City of North Little Rock has considered the appeal so frivolous, it has not favored us with a brief. May, acting pro se, has not favored us with any authorities on any point. The only authorities of which we are aware that would come near to supporting recovery of attorney fees in an action for wrongful removal from office are the Massachusetts cases exemplified by Stiles v. Morse, 233 Mass. 174, 123 N.E. 615, 4 ALR 1365 (1919) and the New York decisions of which McGraw v. Gresser, 226 N.Y. 57, 123 N.E. 84 (1919) is typical. But we think the better rule is that expressed in Burch v. Hardwicke, 30 Gratt. (Va.) 24, 32 Am. Rep. 640 (1878) and O’Neill v. Register, 75 Md. 425, 23 Atl. 960 (1892), holding that there can be no recovery of damages unless the unauthorized removal was accomplished maliciously, dishonestly or for gratification of personal hostility. Certainly malice, corruption or personal hostility cannot be attributed to the municipality, or even to its officers, who allegedly acted upon the advice of the city attorney. There is a complete absence of any allegation that the city or any of its officials have acted dishonestly or out of malice or hostility. Furthermore, the cases which more nearly support appellant’s position are unlike May’s suit in that they are actions against the removing officials personally and not against the municipalities. In any event, the city is by statute immune from liability in an action for damages. Ark. Stat. Ann. §12-2901 (Supp. 1973).

The judgment as to the City is affirmed, but as to Edwards, it is reversed and remanded for further proceedings.


text:
    Jimmy Ray PARKER v. STATE of Arkansas
    CR 75-97
    529 S.W. 2d 860
    Opinion delivered November 17, 1975
    [Rehearing denied December 22, 1975.]

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Walter W. Nixon, III, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Jimmy Ray Parker was found guilty of robbery of Mrs. Walter Kliner in the taking of her purse containing her checkbook, food stamps, credit cards and money on December 17, 1974. He was charged jointly with Mikel Edward Parker and Terry Eugene Caldwell. He was also found to have been convicted of a felony on at least one previous occasion and sentenced for ten years.

Parker’s motion to suppress any oral statements made by him to the police was denied. The “purse snatching” was reported to the Fort Smith Police Department. The victim described a “purse snatcher” to Patrolman Frank Hartman. The manager of a Ben Franklin store, who came to the aid of Mrs. Kliner when he heard her cries, told the officer that he pursued the person who had taken Mrs. Kliner’s purse and saw him get into a green Dodge automobile bearing license No. BWZ 051. Mike Jordan, a Salvation Army representative, stated that there were two other persons in the vehicle. The police ascertained that this license was registered to a man named Caldwell in Charleston. Mrs. Kliner told the officer that her assailant took the purse, her personalized checkbook, her credit cards and identification, but said that her billfold dropped out of the purse as he fled. The information about the vehicle was given to the State Police. When Officer Hartman was advised that the State Police Trooper Acoach had seen the vehicle at the Suburban Liquor Store, he proceeded there, arriving at about the same time as Officer Sweeten. They found there a green Dodge Coronet bearing the license number reported to the police and saw Parker, his brother Mikel and Caldwell in Acoach’s vehicle.

Acoach had known Caldwell. He saw the vehicle parked at the liquor store and stopped there and arrested Caldwell and Mikel Parker, whom he found sitting inside the Caldwell vehicle. After searching and handcuffing them he placed them in his police vehicle and went into the liquor store where he found the proprietor and Jimmy Parker. He asked Jimmy if he had been in the Caldwell vehicle. Upon receiving an affirmative reply, Acoach arrested, handcuffed, and searched Jimmy Parker. Appellant had not been advised of his constitutional rights by the officer. The answer given by appellant to Acoach was the only statement involved.

Appellant contends that this statement should have been suppressed, arguing that it was custodial interrogation because the investigation had focused on him. We do not agree. The information furnished the police was that three persons had been in the vehicle in which the “purse snatcher” fled the scene. When the police officer found two persons in the vehicle which fit the description furnished him, it was natural and proper for him to inquire in the vicinity for a third person. When he went into the liquor store, he may well have intended to ask the proprietor what other persons he had seen in the vicinity. When appellant was found there the inquiry made of him was a natural part of the officer’s investigation and there is no indication that appellant’s freedom had been interfered with in any way before he answered.

Police inquiry is purely investigatory and proper until the suspect is restrained in some way. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1965). The warnings mandated by Miranda are not required where the person interrogated has not been arrested or deprived of his freedom in any significant way. Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275; Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. The statement in this case readily falls within the class in which we held oral statements to police officers admissible in Stout v. State, 244 Ark. 676, 426 S.W. 2d 800; Chenault v. State, 253 Ark. 144, 484 S.W. 2d 887 and in Johnson v. State, supra. In Stout, we held that affirmative answers to the questions of a police officer who arrived soon after a shooting in response to a call by the accused as to the whereabouts of the weapon used and whether the gun produced was the one used were admissible, in spite of the fact that no warnings had been given,- because the investigation had not reached the accusatory state, even though the accused was arrested immediately after answering the questions. In Johnson, a police detective, who had gone to a hospital to see the victim of a “shootout” and who interrogated the accused there in making his investigation of a reported gunshot wound for which the accused was receiving treatment, was permitted to testify that, in response to his questions, the accused identified himself by an incorrect name and gave an account of his activities that proved to be untrue, even though one of the purposes of the interrogation wa-s to see whether or not he was involved in the “shoot-out”. No warnings were given the accused. We said that the officer would have been derelict in his duty if he had not asked the questions he did. In Chenault, the police officers found the body of a murder victim in the front room of his home and the accused, his wife, standing by the kitchen wall with a gun it her hand. When an officer asked her for the gun she handed it over, saying that she had shot the victim. When asked who the victim was, she replied that he was her husband. Even after this, and without any warnings having been given, the officer asked her what happened and she responded, “I shot him. I killed him.” Only after this answer was she warned not to say any more. These utterances, without others were held admissible as spontaneous utterances.

The inquiry here was quite similar to that in Dickson v. State, 254 Ark. 250, 492 S.W. 2d 895, where we found the answers given admissible. We find no error in the admission of appellant’s answer to the inquiry made by the police officer.

Appellant next contends that his motion for directed verdict should have been granted because the statement he made to Officer Acoach should have been suppressed and because there was no identification testimony to support the verdict. This contention actually turns, upon the disposition of appellant’s first argument and must fall with it.

Another of appellant’s points for reversal is his contention that, since he was charged as a principal, the circuit judge erred in giving a jury instruction defining accessories and advising that an accessory could be punished as a principal. The instruction is a proper statement of the law and was properly given. Appellant argues that the abolishment of the distinction between principals and accessories makes the instruction erroneous. To the contrary, this is the only means of making known to thejury that aiders, abetters and advisers in the commision of a crime are principals and punishable as such. Roberts v. State, 254 Ark. 39, 491 S.W. 2d 390. See Fleeman v. State, 204 Ark. 772, 165 S.W. 2d 62. Appellant’s reliance upon Simmons v. State, 184 Ark. 373, 42 S.W. 2d 549 is misplaced. In the first place, the instruction there was requested by the defendant, but we held it abstract under the facts of that case, because the defendant in that case was either a principal or innocent. In the second place, the case was decided before the distinction between principals and accessories was abolished. See § 25, Initiated Act 3 of 1936; Ark. Stat. Ann. § 41-118 (Repl. 1964).

We do not agree with appellant that the trial court erred in refusing to give instructions defining grand larceny and petit larceny as lesser offenses included in the charge of robbery. The evidence here shows that whoever took Mrs. Kliner’s purse, took it by force sufficient to constitute robbery. She said that when someone attempted to grab her purse she “put up a fight,” the robber hit her in the face and the purse was simultaneously “yanked” from her with force sufficient to break her purse strap, so that after the purse was taken she stll held the strap in her hand. She said she was knocked down with such force that she thought she must have blacked out momentarily and was assisted to her feet by a Salvation Army member. She said that she suffered two abrasions and three bruises on her face. Officer Hartman interviewed Mrs. Kliner after the incident was reported. Although he saw no marks on her face at the time, he said that she had “a red.flushed look about her face and cheeks.” Detective Earl Sharp interviewed Mrs. Kliner on the next day. She exhibited a scratch and a bruise on her right cheek.

It is quite true that the mere snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person or there be some struggle for possession of the property prior to the actual taking or some force used in order to take it. Routt v. State, 61 Ark. 594, 34 S.W. 262. See also Coon v. State, 109 Ark. 346, 160 S.W. 226. The evidence was certainly sufficient to sustain a conviction of robbery. Lloyd v. State, 253 Ark. 839, 489 S.W. 2d 240.

It is error to refuse to give a requested instruction defining a lesser included offense when there is testimony on which the defendant might be found guilty of the lesser, rather than the greater, offense. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. It would not have been error to have given an instruction on larceny. But it is not error to refuse such an instruction when the evidence clearly shows that the defendant is either guilty of the greater charge or innocent. Catón v. State, supra. In this case, there seems to be little reason for doubting that there was a struggle for possession of the purse before the taking was accomplished and that Mrs. Kliner was struck in the face, however slightly. She did retain the purse strap in her hand after the assailant had taken the purse. Even though the abrasions on her face did not immediately appear, her face appeared to the police officer who came to the scene to be red and flushed and it is certainly commonly known that a bruise does not appear immediately after a blow and surface scratches may appear at first only as inflammations. We find no error here.

Appellant’s remaining point for reversal questions the propriety of proving his prior convictions. The evidence offered was in the form of commitments to the penitentiary, which appellant describes as “transcripts of the judgment.” Appellant argues that this evidence was inadmissible because strict construction of the statute only permits introduction of a duly ceritified copy of the judgment of conviction. It is true that the statute is penal and to be strictly construed. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. But there is nothing in the statute which prevents proof of prior convictions by admissible evidence other than the two items of documentary evidence mentioned in Ark. Stat. Ann. § 43-2330 (Repl. 1964). That section provides only that when either of these items of evidence is introduced, it constitutes prima facie evidence. This section of the statute makes a duly certified copy of the record of a former conviction and judgment of a court of record for imprisonment in the penitentiary against the person indicated prima facie evidence of the conviction. The commitments admitted into evidence are certified by the clerks of the respective courts as “transcripts of the judgment and sentence of said court in the cause therein mentioned.” The identity of the court and case appear as a caption at the very beginning of each of the instruments. A reading of the instruments indicates that they are actually literal recitations of thejudgments in the respective cases. Each concludes with an order of the court that its clerk make out and deliver a certified copy of the judgment as authority for the agent or keeper of the penitentiary or the Department of Correction to receive and confine the defendant Jimmy Ray Parker. There was no error in the admission of these documents in evidence.

The judgment is affirmed.

Roy, J., not participating.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    James OWENS v. BILL & TONY’S LIQUOR STORE and MARYLAND CASUALTY Company
    75-178
    529 S.W. 2d 354
    Opinion delivered November 17, 1975

      James F. Dickson, for appellant.

      Pearson & Pearson, for appellees.
   Conley Byrd, Justice.

This litigation arises out of an altercation between appellant James Owens and W. E. House, one of the partners in appellee, Bill & Tony’s Liquor Store. Appellee Maryland Casualty Company is the Workmen’s Compensation Carrier. Following the altercation Owens filed a common law action against House for an intentional and malicious assault. Owens then filed a claim for compensation with the Workmen’s Compensation Commission. The Commission allowed the claim and awarded compensation. On appeal to the Circuit Court the claim was dismissed on the theory that the filing of the common law action constituted an election of remedies. Owens appeals, raising only that issue. Appellees have filed in this Court a motion to dismiss for failure to comply with Ark. Stat. Ann. § 27-2127.1 (Supp. 1973).

MOTION TO DISMISS. Appellees point out that Ark. Stat. Ann. § 27-2127.1, limits the authority of trial courts in granting of extensions to file the record on appeals to those situations where it is necessary to include transcribed testimony. We recognized the problem in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), and promulgated Supreme Court Rule 26A requiring that application for extensions be served upon opposing counsel. The record here shows that there was no transcribed testimony to be included in the record. However, within the 90 day period appellant filed a motion for extension and properly served appellees. The appellees purposely did not object to the extension and did not raise the issue here until after the action at law had been dismissed and appellant had filed his brief in this Court.

Since Ark. Stat. Ann. § 27-2106.1 (Repl. 1962), provides that the failure to file the record in this Court within 90 days, or any extension thereof, does not affect the validity of the appeal but only furnishes ground for such action as we deem appropriate, we must decide what action is appropriate. When we consider that the purpose of the restriction placed in Ark. Stat. Ann. § 27-2127.1, by Act 206 of 1971, was to eliminate unnecessary delays in the docketing of appeals, we hold that an appellee who does not object to the obtaining of such an extension at the first opportunity will be deemed to have waived the error. Nothing said herein should be construed as affecting our decisions with reference to the filing of the record after the 90 day period when no extension has been obtained or records filed beyond the seven months limit. See Bernard v. Howell, 254 Ark. 828, 496 S.W. 2d 362 (1973); Stebbins & Roberts, Inc. v. Rogers, Trustee, 223 Ark. 809, 268 S.W. 2d 871 (1954); and West v. Smith, 224 Ark. 651, 278 S.W. 2d 126 (1955).

ELECTION OF REMEDIES: The appellees, to sustain the trial court’s ruling that appellant is barred by the doctrine of election of remedies, point to the reasoning of this Court in Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350, 230 S.W. 2d 28 (1950). In that case we held that the Workmen’s Compensation Act did not bar an employee’s common law action against an employer for a malicious and intentional assault and battery. In so holding we quoted from numerous authorities, including Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 ALR 108 (1930), and concluded:

“. . . We conclude that the ruje laid down in Boek v. Wong Hing, supra, is supported by sound reasoning and that appellant is entitled to elect to either claim compensation under the compensation act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. . .

Heskett v. Fisher Laundry & Cleaners Company, Inc., supra, did not involve the issue of whether such remedies were inconsistent and, of course, is not a binding precedent on that issue.

All authorities recognize that the election of remedies doctrine is a harsh one and that it should not be unduly extended, 25 Am. Jur. 2d Election of Remedies § 3 (1966). The Workmen’s Compensation authorities, 2 A. LARSON, Workmen’s Compensation Law § 67.22 (1975), point out that the doctrine is too harsh to be applied in Workmen’s Compensation cases. We pointed out in Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736 (1962), that in “Workmen’s Compensation cases there appears to be an even less strict adherence to the election rule than in other cases.” However, we need go no further than the Workmen’s Compensation Act, Ark. Stat. Ann. ? 18-1318(e) (Supp. 1973), which specifically recognizes that the filing of an action at common law is not an irrevocable election of a remedy.

Furthermore, the record here shows that the same facts would support either a claim for compensation or an action at common law and that the defense would be the same to either action. Consequently, it is only by a slavish recognition of the doctrine and by a mechanical application of a fictional legal theory that it can be said that the two remedies are inconsistent.

Having determined that the doctrine of election of remedies is not applicable to Workmen’s Compensation claims made subsequent to the filing of an action at law, it follows that the circuit court’s order of dismissal should be reversed and the Commission’s award reinstated.

Reversed and remanded with directions.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

concurring in part, dissenting in part. In 1950, Owens would have been barred from pursuing a workmen’s compensation claim after having filed his suit. Heskett v. Fisher Laundry & Cleaners Co., Inc., 217 Ark. 350, 230 S.W. 2d 28. It appears that he would have been barred in 1962. Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736. Only today has this court even remotely suggested that the doctrine of election of remedies did not apply to a workmen’s compensation claim.

Obviously, I do not agree with the majority’s interpretation of Heskett. As I read it, it did involve the issue of inconsistency of common law and workmen’s compensation remedies. The first depends upon the severance of the relationship of master and servant. The second depends upon its existence. In Heskett, we quoted from Horovitz on Workmen’s Compensation in his recognition that the weight of authority gives the employee the choice of suing the employer at common law or accepting compensation. In reaching our conclusion in Heskett, finding the rule of Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 ALR 108, to be sound, we held, not just that the Workmen’s Compensation Act did not bar the common law action, but that the employee was entitled to elect to either claim compensation under the act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. We held that Heskett had elected to pursue the common law action. We quoted extensively from Boek. Some of the language we found to constitute sound reasoning was:

*** By committing a felonious assault upon a servant the master willfully severs the relation of rrtaster and servant and should be held to have left it to the election of the servant either to consider the relation still existing and seek redress through the Compensation Act, or else to consider the relation terminated and seek redress under the common law.

How much more inconsistent could remedies be? The inconsistency is at least as great as that requiring election between specific performance of a contract and damages for its breach and as the pre-Commercial Code requirement of election between repossession of property conditionally sold and collection of the balance of the sale price. See Sutterfield v. Burbridge, 223 Ark. 854, 268 S.W. 2d 900; Roy v. Notestine, 216 Ark. 447, 226 S.W. 2d 66. Heskett would certainly have been hard put to reverse his course and seek workmen’s compensation in 1950.

We said something in Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736 that is disregarded by the majority. That was:

We have likewise concluded that appellant’s suit in Federal Court did not amount to an election of remedies as contemplated under Ark. Stats. § 81-1304. Undoubtedly, under this section, if appellant had not sued the railway company, his suit against appellee in tort would have been an election and thereafter he could not have maintained a claim for compensation, assuming, of course, that appellant sued as an employee of Jett. However, when appellant obtained a judgment against the railway company in tort, he thereby (under the Oklahoma law to which we must give full faith and credit, the action being in tort) released all other tortfeasors (including appellee) from liability. So, when appellant filed his complaint against appellee in tort there was no such cause of action in existence. That being true appellant did not have two causes of action to elect between — he had only the right to claim compensation. ***

That is the holding in Gentry in capsule. I agree that a different result would have been an unwarranted extension of the doctrine of election of remedies, but there is clear recognition in Gentry that a tort suit against the employer would have barred a claim for compensation.

I have read and reread Ark. Stat. Ann. § 81-1318 (e) and fail to find even a remote possibility that it could have any application whatever to this or any similar situation. That provision comes into play only when recovery in an action at law has been denied on the sole ground that the employer and employee were subject to the act, i.e., that the Workmen’s Compensation Act provided the exclusive remedy. That is not the case here. If a claimant met the bar of this section of this statute in a common law action, obviously he had no election and the holding in Gentry would apply.

There should be no doubt that there was an election of remedies here. In Butler Bros. v. Hames, 193 Ark. 77, 97 S.W. 2d 622, in holding that an action to recover a debt for merchandise purchased was an acknowledgment and ratification of a sale, and inconsistent with a later suit to set aside the sale of merchandise by the debtor which proceeded on the theory that the creditor had repudiated the transaction, we quoted from 20 CJ 9, § 8, viz:

“ *** Ordinarily, the question of inconsistency may be determined by a consideration of the relation of the parties with reference to the rights sought to be enforced as asserted in the pleadings. * * * To make them inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demands which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.”

An election once made is irrevocable, even though it has not been acted upon by another to his detriment, and is a conclusive and absolute bar. Roy v. Notestine, supra. The election is made when the first pleading is filed. Eastburn v. Galyen, 229 Ark. 70, 313 S.W. 2d 794; Belding v. Whittington, 154 Ark. 561, 243 Ark. 808; Bigger v. Glass, 226 Ark. 466, 290 S.W. 2d 641. It does not matter that a decision on the merits has not been reached in the common law action and its dismissal without prejudice does not affect the election made by filing suit. Belding v. Whittington, supra; Eastburn v. Galyen, supra; Bigger v. Glass, supra.

I submit the circuit judge was right and he should be affirmed. I concur on the motion to dismiss.