author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice, Darrell Hickman, Justice,

text:
    M. B. PURVIS v. Web HUBBELL, Mayor and Agent for Service for the City of Little Rock, Arkansas et al
    80-315
    620 S.W. 2d 282
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981
    [Rehearing denied September 21, 1981.]

      Harkey, Walmsley & Belew, by: M. B. Purvis, for appellant.

      Jack R. Magruder, III, City Atty., for City of Little Rock.

      Owens, McHaney & Calhoun, for Little Rock Advertising & Promotion Commission.

      Hoover, Jacobs & Storey, for Little Rock Center Associates, Ltd.
   Frank Holt, Justice.

This litigation arises from the proposed construction of a convention center-hotel complex in Little Rock and the issuance of approximately $27,375,000 of revenue bonds by the city to finance its share of the cost. Appellant, a taxpayer, brought this action for a declaratory judgment, challenging the legality of the project. The chancellor denied the petition, finding that the appellant had failed to show the actions of the appellees, Board of Directors of the City of Little Rock and the Little Rock Advertising and Promotion Commission, were unauthorized by law or unlawful or that they acted arbitrarily, unreasonably and oppressively; that the Board and the Commission acted with due diligence and deliberation with respect to the convention center project and in the public interest; that the appellant failed to show fraud or gross abuse of discretion by either the Board or the Commission; that the development of the convention center is in the public interest and is pursuant to Act 380 of the Acts of Arkansas of 1971, as amended; that the proposed bonds are not general obligations of the city and the full faith and credit of the city was not pledged for repayment of these bonds; that they are tourism revenue bonds within the meaning and intent of Act 380; and that Act 380 authorizes the city to do what it proposes. In summary, the repayment of the bonds is to be made out of the income or assets of this special project for which the debt is incurred and, therefore, Act 380 does not contravene Art. 12, § 4 (as amended by Amendment 10), Art. 16, § 1 (as amended by Amendment 13), nor Amendment 49, Art. 16; § 13, and Art. 12, § 5.

Appellant first asserts for reversal that “[t]he totality of circumstances under which benefits are derived by and payments of money made to and on behalf of the promoters renders the proposed convention center in violation of Article 16, section 1 of the Arkansas Constitution.” Appellant argues that the contract between the parties shows a substantial deprivation of the money and property of appellant and people of little Rock, and that the financial aid has been used for the advancement of private enterprise and for the benefit of the promoters as developers of the project.

Art. 16, § 1 of the Constitution of 1874, as amended by Amendment 13, in pertinent part, provides: “No municipality shall ever grant financial aid toward the construction of . . . private enterprises operated by any person, firm or corporation . . .” The project, owned by the city, is to be financed by bonds, without an election, issued pursuant to the popularly known “Tourism Act.” Act 380 of the Acts of Arkansas of 1971, as amended. Ark. Stat. Ann. § 13-1801 et seq. (Repl. 1979). Payment of the bonds would be solely from five sources: (1) revenues derived by the city from a tax of 2% upon gross receipts from hotel, motel, restaurant and other on-premises food consumption establishments as authorized by Act 185 of 1965 (Ark. Stat. Ann. § 19-4613 [Repl. 1980]), (2) revenues received by the city from the existing and new convention centers, (3) revenues received by the city from the parking facilities in conjunction with the center, (4) rent paid to the city by the developers, and (5) “state turnback revenues” which represent a pro rata or a partial turnback of state income and sales tax proceeds that are estimated to be generated by or derived from the proposed tourism project or convention center facilities as authorized by the provisions of Act 763 of the Acts of Arkansas of 1977, as amended. (Ark. Stat. Ann. § 19-5501 et seq. [Repl. 1980]).

The proposed center is to be constructed on the site formerly occupied by the Grady Manning and Marion Hotels. The proposal is that the promoters, Little Rock Center Associates, Ltd., would sell their land to the cit> for the amount they paid for it with interest from the date of their purchase to the date of purchase by the city. The city would build the convention center, and the promoters would build a 16 story-460 room hotel on top of the center at their expense, title to be in the city, with the promoters having the right or option to lease the hotel, together with shops and restaurants, for 53 years with the option to renew for two successive terms or a total of 103 years at a specified Base and Participation Rental. Furthermore, a restrictive convenant involving adjacent lands owned by the city provides that the promoters must agree to any proposed use of such lands before they can be so used. The promoters would receive a total of $200,000 for services rendered to date and not to exceed $200,000 for future services in the supervision of construction of the center and hotel. The city would pay the contractors chosen by the promoters a fee of $589,157 for supervising construction. Other expenses and savings were allocated between the parties, with the further provision that the promoters would contribute $3,000,000 toward the construction of the center in addition to the costs assumed by them as enumerated above. The promoters have the right to proceeds from the sale of salvage from the hotels formerly on the site, the city bearing the cost of the demolition.

In Williams v. Harris, Mayor, 215 Ark. 928, 224 S.W. 2d 9 (1949), we held this provision, Art. 16, § 1, as amended by Amendment 13, was violated where, from the language of the ordinance, it could be inferred that a manufacturer, rather than the city itself, might be or become the owner of the factory being built to which the city was contributing from the proceeds of the bonds. This is not true here. Another example where we have found a violation, as asserted here, is Halbert v. Helena-West Helena Industrial Development Corporation, 226 Ark. 620, 291 S.W. 2d 802 (1956), in which the municipality had purchased a membership in a corporation. This was found to be granting financial aid. In Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960), however, we held Art. 16, § 1, as amended by Amendment 13, was not violated even though a private corporation, as a lessee, might derive some benefit from an industrial plant, financed by a bond issue, since any benefit to it would be “merely incidental” and the “main benefits” would inure to the public. Title to the manufacturing facility would be in the city.

Here, as indicated, the promoters are building the hotel at their own expense, as well as substantially contributing to the costs of the convention center with title to the hotel, as well as the convention center, being vested in and to remain in the city. The promoters are to pay the city annual Base & Participation Rentals which the city deems reasonable. In the circumstances, the construction of this city owned project by the issuance of these revenue bonds is not violative of Art. 16, § 1, as amended, of our state constitution as asserted by appellant.

Appellant also argues that the city has exercised poor judgment in its negotiations resulting in a disadvantageous contract between the parties. We agree with the chancellor when he said:

The wisdom of governmental projects, such as the one now before the Court, is not a proper subject of judicial inquiry. Rather, the judicial problems in such matters center upon the questions of whether the project is legally authorized and lawfully programmed.

Further, the testimony adduced by the city that the contract is reasonable is uncontroverted. Whether the contract is improvident addresses itself to the wisdom of the appropriate city officials. See Miles v. Gordon, 234 Ark. 525, 353 S.W. 2d 157 (1962).

Appellant next contends that an election to approve the bonds is required by Act 380 of 1971, as amended, inasmuch as it implements Amendment 49 of our Arkansas Constitution (1874), which requires an election. Appellant further asserts that the act is unconstitutional in that it allows a term of a bond issue to be 40 years at 10% interest whereas Amendment 49 only allows a term of 30 years at 6%. Amendment 49 to the Constitution provides that “[a]ny city of the first or second class, any incorporated town, and any county, may issue, by and with the consent of the majority of the qualified electors of said municipality or county voting on the question at an election held for the purpose, bonds in sums approved by such majority at such election for the purpose of securing and developing industry within or near the said municipality holding the election, or within the county holding the election.” Act 380 makes tourism an industry within the meaning of Amendment 49. Ark. Stat. Ann. § 13-1801 (Repl. 1979).

Amendment 49 obviously is an extention of Art. 16, as amended by Amendment 13, to provide for industrial development. In Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W. 2d 223 (1934), this court found no violation of Amendment 13 (to Art. 16) where bonds, issued without election, were to be paid from revenue generated by the improvements to the waterworks system for which the bonds were issued. The court said:

Constitutional provisions should receive a reasonable construction, the purpose being to ascertain the meaning of the framers of the provision of the Constitution, and the intention of the electors in adopting the provision. It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.

In McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428 (1955), this court had before it an alleged violation of Amendment 20, which Amendment concerns the state issuing bonds pursuant to an election, whereas Amendment 49 is concerned with issuance of bonds by cities, towns and counties with electoral consent. Ths court there noted that the bonds, issued without approval at an election, were to be repaid by revenue producing sources consisting of state agéncy rentals, the proceeds from the sale of a state owned building, and enumerated costs levied and collected by courts and certain state agencies, all of which the legislature authorized as special funds for repayment of the bonds. We held that the bondholders could look only to those sources of revenue or special funds provided for repayment and that no claim could be asserted against the state should those sources prove insufficient. Therefore, issuance of the bonds, without election approval, was not violative of Amendment 20 nor Art. 16, § 1, as amended by Amendment 13.

Ark. Stat. Ann. § 13-1805 (Repl. 1979) specifically provides that tourism revenue bonds, as here, are not general obligations of the city, they are special obligations; in no event shall they constitute an indebtedness of the city “within the meaning of any constitutional or statutory limitation” and the bonds must “plainly” so state. In the circumstances, we find no violation, as asserted, of Amendment 49- It follows that since these bonds do not arise under that Amendment, there is no constitutional violation in the increase of the interest rate from 6% to 10% and the term of such bonds from 30 years to 40 years.

Even so, appellant argues the fact that the funds would be derived from the 2% sales tax upon gross receipts or gross proceeds from hotel, motel, restaurant and other on-premises food consumption establishments within the city, from the parking facilities and from the state turnback revenues emanating from this project “should have alerted the chancellor the proposal was illegal.” We find no merit in this contention. The revenues from the parking facilities are revenues generated by the project itself. The other two sources are authorized by statute specifically and solely for such purposes. The 2% sales tax is authorized by Act 185 of 1965, Ark. Stat. Ann. § 19-4613 (Repl. 1980). Section 19-4615 provides all such sums collected shall be credited to a specific purpose or fund; i.e., to the city advertising and promotion fund, created by the ordinance levying the tax. Section 19-4617 then provides these funds shall be used for certain enumerated purposes concerned with the promotion of the city or the construction, maintenance', repair, etc. of convention centers in that city and facilities necessary to such a center or for payments relating to bonds as authorized in the Act, issued in connection with convention center projects. Subsection (B)(3) of §19-4617 provides these bonds shall not be general obligations of the city but special obligations, secured and payable as provided in this section. Act 763 of 1977, as amended, § 19-5501 et seq. authorizes the pledging of turnback revenues. Under it the repayment of bonds issued for the construction of such a facility, as here, may be made from funds which are deemed attributable to the increased State Sales Tax revenues and State Income Tax revenues generated by the eligible facilities. § 19-5504 (g). This act defines “Revenue Bonds” as those issued which are limited or special rather than general obligations of the issuer and which are not payable from the proceeds of an ad valorem tax. § 19-5503 (j).

In McArthur v. Smallwood, supra, the court held the state, by issuing revenue bonds for the construction of the Justice Building, was not pledging its credit, that the pledging of state or public revenues is not prohibited by Amendment 20, requiring approval by election, as long as they are not obligations of the state. “The bondholders can look only to those sources of revenue made available by the act, and if they are insufficient, no claim of any nature can be asserted against the State” and “. . . the irrevocable pledging of state funds is condemned only when they are pledged to full faith and credit obligations of the State.” The court noted the funds were not available for general or other purposes and were designated as special funds. Therefore, no approval by the election process was necessary. To the same effect see also Miles v. Gordon, 234 Ark. 525, 353 S.W. 2d 157 (1962), where we upheld the validity of an act authorizing certificates of indebtedness, payable from special funds, issued by the State Reserve Fund Commission for financing construction of facilities at state supported colleges. Further, Holmes v. Cheney, 234 Ark. 503, 352 S.W. 2d 943 (1962), where we approved the validity of an act which authorized the issuance of bonds by the State Revenue Commission, without electoral consent, for the construction of a new state revenue building with the bonds being payable from fees collected from motor vehicle certificates of title and the recording of mineral leases.

In summary, the bonds, here, are clearly not general obligation bonds of the city. They are revenue bonds, payable, as authorized by the legislature, from special funds not available for general purposes. The purchasers of the bonds must look solely to these funds for payment. Neither the appellant, as a taxpayer, nor the city can ever be required to pay any part of them upon a default as a result of the insufficiency of these funds. We agree with the chancellor that there is no violation of the asserted constitutional provisions.

After carefully considering our previous decisions, it appears there has been a gradual expansion of the concept of revenue producing bonds, which require no popular approval, as was authorized for instance in Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W. 2d 223 (1934). However, a change should not be made retroactively, after public agencies and investors have relied on our decisions; but in other instances we have given notice that an interpretation of the Constitution may or will be changed. Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959); Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952). Accordingly, we give notice of our intention to prospectively reconsider our cases at the next opportunity after the present opinion becomes final.

Affirmed.

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

Richard B. Adkisson, Chief Justice,

dissenting. This is an appeal from a Pulaski Chancery Court Decree upholding a Little Rock City Ordinance authorizing the issuance of revenue bonds pursuant to Act 380 of 1971, as amended (Ark. Stat. Ann. § 13-1801 et seq.). Act 380 states that “this Act, and the authorities conferred hereby are in implementation of [Arkansas Constitutional] Amendment No. 49 and necessary for the full accomplishment of the public purposes contemplated by the people in adopting that Amendment.”

Amendment 49 was voted upon and approved by the electorate in the general election of November, 1958. It is composed of six sections and approximately 800 words and provides for the issuance of bonds by a vote of the affected electorate at a maximum interest rate and for a specific number of years. Section 3 of the Amendment provides for the retirement of the bonds and was construed in Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960) as allowing the retirement of the bonds by either a general obligation tax or by special obligation revenues. It is noted that, of the six sections contained in Amendment 49, three expressly provide for an election to be held for the purpose of issuing bonds. Section 4 limits their maturity to a period of thirty (30) years. And, Section 2 sets a maximum interest rate of six percent (6% ) per annum and provides for a public sale.

The majority is holding that in passing Amendment 49 the people voted on only eight words authorizing a bond issue “for the purpose of securing and developing industry.” In arriving at this conclusion they rely on cases construing Amendments 13 and 20 which hold that an election is not necessary for the issuance of bonds to be retired by special revenues as opposed to the general obligations of the governmental unit. Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W. 2d 223 (1934); McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428 (1955). These cases were decided prior to Amendment 49 and did not intend to forever foreclose the people from requiring an election before the issuance of bonds to be paid for by taxes. Yet, this Court is so holding today contrary to the clearly expressed and unequivocal wording of Amendment 49.

There is no question that, under the terms of the Trust Indenture, this bonded indebtedness obligates not only the citizens of the City of Little Rock but also those of the entire state. Under state statutes the following revenue sources have been pledged for repayment of these proposed bonds: a 2% hotel, motel, and restaurant sales tax within the boundaries of the Issuer; revenues derived from the parking facilities financed from the proceeds of bonds being refunded; and state turnback revenues derived from State income and sales tax. This trust indenture constitutes a contract between the bondholders and the city, and no subsequent laws may impair its obligations; therefore, it is clear that the taxpayers’ moneys, both state and local, will be committed for a number of years under this agreement. See Jones v. Cheney, 253 Ark. 926, 489 S.W. 2d 785 (1973).

The appellees have expressly urged this Court to hold that the only effect of Amendment 49 is to authorize bond issues “for the purpose of securing and developing industry.” Regardless of prior constructions given by this Court to Amendments 13 and 20, the people must retain the right to require a vote of the electorate before issuance of bonded indebtedness. This right was adopted under Amendment 49 is unmistakable language, and to hold that this constitutional right is nonexistent is to fail to uphold the Constitution of the State. The people of this State will certainly be surprised to discover that the six sections of Amendment 49 providing for prior election before the issuance of bonded indebtedness, the setting of the interest rate and the maturity date, and the manner of sale of such bonds are superfluous and that, in effect, they voted only on eight words authorizing bond issues “for the purpose of securing and developing industry.”

For the reasons stated, I would reverse.

I am hereby authorized to state that Purtle, J., joins me in this dissent.

Darrell Hickman, Justice,

dissenting. The majority’s decision is a bad precedent for two reasons. First, the bonds in this case are not pure revenue bonds. The money that will be used by the city to pay off the bonds will not consist wholly of revenue produced by the project, but will also consist of money taken from the regular income of the City of Little Rock. Little Rock receives turnback money from the State of Arkansas which is the city’s portion of the state income and sales tax. An unknown amount of that money will be used annually hereafter to pay these bonds. Act 763 of 1977 is the vehicle being used to circumvent the constitutional prohibition against bonds issued without a vote by the people. Ark. Const, art. 16, amend. XIII. If Act 763 is allowed to stand then any part of the general income of a city, county, or state can be used to pay bonds not approved by the public. That is a dangerous as well as illegal practice. The pretext used in this case is tourism. Exactly what tourism is and exactly how much money will be set aside from the turnback funds to pay the bonds is unknown and really any such designation has to be arbitrary and speculative.

The second reason the decision is a bad precedent is that it violates Article 16, Section 1 of the Arkansas Constitution, as amended by Amendment 13. Amendment 13 reads:

. No municipality shall ever grant financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation, and no money raised under the provisions of this amendment by taxation or by sale of bonds for a specific purpose shall ever be used for any other or different purpose. . . . [Emphasis added.]

The majority holds that no aid has been granted to a private developer in this case because the city owns the property. The title to the complex is vested in the City of Little Rock with the developer granted a 103 year lease. The fact that the city holds bare legal title is used as an excuse for finding that the project is city owned and, therefore, the constitution is not violated. The city in this case will pay up to $400,000 to the private developer for his services. The contractor will be paid a fee of nearly $600,000. The developer will receive a lease for 103 years, which no doubt exceeds the useful life of this project. The substance of this deal between the city and the developer is that the city will finance the project and the developer will operate it for its useful life. If this is not a case of a city granting financial aid to a private enterprise then none can ever exist.

Arkansas’s constitution is drafted so that the state, cities, and counties will remain solvent. The people of this state decided that the future income of this state would not be pledged without the voter’s consent at the polls. Numerous efforts to avoid these constituitonal provisions have been made and many of them have been successful. For example, the building in which this court is housed is financed by so-called revenue bonds that are really state bonds. To be specific, the money that is used to pay the bonds on the Justice Building comes in part from appropriations made to state agencies as rent. One of those appropriations was for the Public Service Commission. When the Public Service Commission moved from this building, the Court of Appeals was allowed money, called rent, which is paid to the bondholders. In other words, the General Assembly is appropriating money every two years to pay these bonds off. In McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428 (1955), a special court approved the bond issue for the Justice Building and closed its eyes to the realities of the situation. That has been the pattern generally followed by this court regarding attempts to evade the constitution.

Even so, the case before us presents a far more dangerous precedent that those set in the past. Now a part of the general revenue of the cities, counties, or state can be directly set aside to pay bonds which have not been approved by the voters. There will be no pretext of “rent.” Now city governments can openly, blatantly, and baldly enter into an agreement with a private developer in contravention of the Arkansas Constitution.

The fact that the complex contemplated in this case would be good for the City of Little Rock or even the State of Arkansas is wholly irrelevant. So is the fact its construction has begun. Any legal question should have been resolved long before now. That was a responsibility of the city officials and private interests.

The people trust this court to enforce the constitution. Our record in regard to the enforcement of Amendment 13 is poor.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    GEORGIA PACIFIC CORPORATION v. Jessie RAY
    81-93
    619 S.W. 2d 648
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Langston & Moore, by: Dewey Moore, for petitioner.

      Griffin, Rainwater & Draper, and Joe K. Bridgforth, for respondent.
   Frank Holt, Justice.

This is a workers’ compensation case. The commission held that the respondent-claimant could not invoke the 15% penalty for an alleged violation of a safety statute, that he was not entitled to an award for disability to the body as a whole, and that he could not hold petitioner-employer liable for additional medical expenses. The court of appeals affirmed the commission except with respect to the alleged violation of the safety statute. Ray v. Georgia Pacific Corp., 1 Ark. App. 196, 614 S.W. 2d 676 (1981). We granted certiorari since the interpretation of certain statutes are in issue as well as the applicability of a previous opinion of the court of appeals. Ryan v. Napa et al, 266 Ark. 802, 586 S.W. 2d 6 (1979).

Here petitioner challenges the correctness of the court of appeals’ decision in which it held the commission erred in refusing to consider any evidence by respondent, as a matter of law, of a violation of Ark. Stat. Ann. § 81-108 (a) (Repl. 1979), which reads:

Every employer shall furnish employment which shall be safe for the employees therein and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees; ...

Respondent seeks to invoke the penalty provision of Ark. Stat. Ann. § 81-1310 (d), which provides:

Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided for by this Act shall be increased by fifteen percent (15%). This fifteen percent (15%) increase shall be paid into the Second Injury Fund, less any attorney’s fee attributable to it.

The administrative law judge, in declining to hear the claimant’s evidence on the asserted safety violation, dismissed the claim. The commission affirmed. The court of appeals disagreed and reversed and remanded on this issue.

Petitioner-employer contends that § 81-108 (a) is not part of the Workers’ Compensation Law and is merely a general recital of the duties of an employer and not specific standards to measure an employer’s conduct. Therefore, it urges that this statute does not meet the requirements of § 81-1310 (d) for imposition of the penalty, citing Ryan v. Napa et al, supra, in support of its position. There the court of appeals noted that the claimant cited no specific safety statute or official regulation as being violated except § 81-108 (a). Furthermore, the statute is not a part of the Workers’ Compensation Law and is phrased only in general terms. However, the commission had permitted and considered evidence of an alleged violation of this statute. The court of appeals affirmed on the basis that the rejection of the claim by the commission was supported by substantial evidence. Here the" court ofappeals held, in construing Ryan v. Napa et al, supra, that § 81-1310 (d) does not require “that the violated statute or regulation be a part of the Workers’ Compensation Act ...” Suffice it to say, we think the court of appeals was correct in relying upon our decision in Harber et al v. Shows et al, 262 Ark. 161, 553 S.W. 2d 282 (1977), as being controlling here. There the commission did not rule on an asserted violation of § 81-108, basing its decision instead on a violation of certain federal regulations. We held the latter inapplicable. There, as here, the claimant unsuccessfully tried to offer proof “that the employer had failed to provide a safe place to work in violation of § 81-108 (Repl. I960).” We remanded the case to the commission for a rehearing to permit this proof. Thus, in effect, we held that a violation of that statute, upon the required proof, would support a penalty under § 81-1310 (d). Consequently, we agree with the court of appeals that the respondent, upon remand, should be allowed to present evidence on the asserted violation of this statute.

We also agree with the court of appeals that the commission did not err in its finding that the claimant did not sustain any disability to the body as a whole. Dr. Hartmann, who treated the claimant in the hospital, found no impairment to the body as a whole, although Dr. Lester found 5-10% impairment. There was testimony by two of respondent’s fellow workers that, after he returned to work, he gave no indication of any back problems nor did he complain of any that would indicate any disability during the two years subsequent to the accident. He voiced no complaint and this work performance appeared to be the same after the accident as it was before. It is for the commission to determine where the preponderance of the evidence lies; however, upon appellate review, we consider the evidence in the light most favorable to the commissions’ decision and uphold that decision if supported by substantial evidence. Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W. 2d 590 (1981). Here there is ample evidence to uphold the commission’s finding of the disability issue.

It is next argued that the commission erred in finding the petitioner was not liable for additional medical expenses. The evidence shows respondent received medical treatment by Dr. Hartmann until he returned to work. Subsequently, he sought treatment from Dr. Lester on his own without the knowledge or permission of the employer. Neither did he petition the commission for a change in physicians as required by Rule 21 of the commission, which rule allows a claimant to change treating physicians if certain requirements are met. Therefore, we agree with the court of appeals that the commission was correct in its holding such treatment was unauthorized and therefore not the liability of respondents.

Affirmed.

Dudley, J., not participating.


text:
    Kenneth Lee DERRING v. STATE of Arkansas
    CR 80-241
    619 S.W. 2d 644
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of capital murder, Ark. Stat. Ann. § 41-1501 (Repl. 1977), and sentenced to life without parole. Hence this appeal.

Appellant first asserts that the court erred in denying his motion to dismiss the information pursuant to the Interstate Agreement on Detainers Act. Ark. Stat. Ann. § 43-3201 (Repl. 1977). Appellant was charged in August, 1978, with the alleged offense while he was incarcerated in a federal facility in Missouri. On January 10, 1979, he requested disposition of the Arkansas charges under the Interstate Agreement. He was returned to Arkansas on May 10. A public defender was appointed a few days later, who moved for a continuance until the November, 1979, term of court. The written motion, signed by appellant and his attorney, was granted on June 7. Appellant was returned to federal custody on July 11 or two months later. Subsequently, while appellant was still in federal custody, a second motion for a continuance was sought until the April, 1980, term of court. This motion, signed also by appellant and his attorney, was granted. Appellant was returned to Arkansas on February 28, 1980. On March 3 he filed a motion to dismiss relying on the provisions in the Interstate Agreement on Detainers Act. Art. Ill (d) provides that a prisoner’s request for a final disposition of an indictment, information or complaint pending another state operates “as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged” in the state. This article then provides:

If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Appellant thus contends this provision is mandatory and requires dismissal since he should not have been returned to federal jurisdiction until the charge against him was disposed of.

We first observe that, upon being returned to Arkansas, appellant requested and was granted a five month continuance. He made no objection, after two months local incarceration, when he was retransferred to the federal facility. There he requested and was granted another extension, i.e., six months. He never objected in any manner to his retransfer. It appears he acquiesced in the procedure about which he now complains. Furthermore, this issue has been decided in the federal courts in regard to Art. IV of this act, which applies when the state and not the prisoner requests he be made available for trial. It includes the same language which requires a trial or disposition of charges before the prisoner is returned. In Camp v. United States, 587 F. 2d 397 (8th Cir. 1978), the court held a violation of Art. IV (e) is a nonjurisdictional error and, therefore, waivable by a defendant in that case by a guilty plea. The court rejected the idea that a “knowing and intelligent waiver” is required as to rights which are not guaranteed constitutionally, noting the Interstate Agreement on Detainers Act is a set of procedural rules only. Here, appellant, also, argues that he was prejudiced by the lack of opportunity to consult with his attorney. We cannot agree. He was in a local jail facility for a period of approximately two months, represented by counsel, before being returned without objection to the federal facility. As an inmate there, he sought and was granted a second continuance through his attorney. He was returned to the local jurisdiction one and a half months before trial. He sought no further continuance. In the circumstances we find no prejudicial error. See United States v. Hach, 615 F. 2d 1203 (8th Cir. 1980).

The second point on appeal is that the trial court erred in admitting character evidence of the victim contrary to the Uniform Rules of Evidence, Rule 404 (a) (2). That rule provides that character evidence is not admissible to prove the victim acted in conformity therewith on a particular occasion, with certain enumerated exceptions, none of which are applicable here. Rule 406 makes habit testimony admissible to prove the conduct of the person on a particular occasion was in conformity with the habit.

Because the victim’s body was never found, the state introduced considerable evidence of his habits to establish the fact he did not disappear on his own volition. He had not been heard from since June of 1977, nearly three years at the time of trial. The evidence adduced from various witnesses was all to the effect that the victim was very dependable in his routine, kept a fairly rigid schedule, always had breakfast with the same person each day, attended school regularly, had no bad habits, and returned home to his apartment at the same time each evening. His father testified that his son regularly contacted him and his mother, and they had not heard from him after June 16, 1977. There was testimony, also, as to the victim’s good Samaritan tendency to stop and aid people in need, including hitchhikers, which was offered to show he stopped to help the appellant, who was seen afoot on the highway near where the victim was last seen stopped in his car and talking to a black man. Appellant is black. Further evidence along this line was introduced of the victim’s religious habits, such as “witnessing” wherever he was and regularly attending his church.

The state urges that evidence of a person’s good habits naturally leads to an assumption of good character, but that does not preclude its introduction. As stated in McCormick on Evidence § 195 (2nd Ed. 1972):

Character and habits are close akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. ‘Habit,’ in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation ... A habit ... is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct ...
Character may be thought of as the sum of one’s habits though doubtless it is more than this.

Although there may have been some overlapping of character and habit, here the trial judge, upon objection, admonished several times that he was admitting this evidence on the issue of habit, and not as character evidence. Furthermore, no limiting instruction was requested. See Wood v. Burris, 241 Ark. 118, 406 S.W. 2d 381 (1966); City of Springdale v. Weathers, 241 Ark. 772, 410 S.W. 2d 754 (1967); and Miller v. Goodwin and Beavers, 246 Ark. 552, 439 S.W. 2d 308 (1969). Preliminary questions about the admissibility of evidence are decided by the trial court. Rule 104 (a), Uniform Rules of Evidence, Reeves v. State, 263 Ark. 227, 564 S.W. 2d 503 (1978). Our responsibility on review is to determine if there has been an abuse of discretion on the part of the trial court. White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216 (1978). Appellant has not shown an abuse of that discretion.

Appellant next contends that there was insufficient evidence to support the finding of capital murder. The argument is that the corpus delicti was not proved. We disagree. The corpus delicti may be proved by circumstantial evidence, i.e., there was in fact a death and that the deceased came to his death by the criminal agency of another. Edmonds v. The State, 34 Ark. 720 (1879); Hall v. State, 209 Ark. 180, 189 S.W. 2d 917 (1945); Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959); Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975); and 1 Underhill’s Criminal Evidence § 37 (5th Ed. 1956). As noted previously, the victim was a person of strict routine. On the last day he was seen, June 16, 1977, he had breakfast as usual with his friend and left about 7:30 a.m. for classes at a vo-tech school, driving his blue and white Dodge Dart. At about the same time the appellant was present at a nearby service station. Appellant left there afoot going toward Interstate 55, the highway the victim took to get to school. An instructor at the school testified he looked south from school and saw the victim on the viaduct standing beside his car talking with a black man about 7:50 a.m. The victim did not attend classes that day nor had the instructor seen him since. The victim would have completed his training in three months. A fellow student, on his way to school, saw the victim as the student crossed the interstate. A black man was in the passenger seat.

Sometime around the middle of June, 1977, the appellant attempted to sell a blue and white Dodge Dart in Sikeston, Missouri. The junk dealer testified that appellant was careful not to touch the car with his hand, pulling his sleeve down to cover his hand when he touched the car, even to open the door, and stated he wanted to “destroy the car.” This dealer reported the incident to the police. When appellant was arrested in Sikeston, a .32 caliber revolver was taken from his person as well as an Arkansas safety inspection sticker from the victim’s car. A search of the vehicle resulted in finding papers with the victim’s name on them and a Bible with his name on the inside. School test papers, pictures, bank account records and his car license plate were found in the trash can behind the residence where the appellant was staying. Appellant told an acquaintance in Sikeston that he had shot and killed a man in Arkansas, had thrown him in the river, and was driving the “guy’s car he had killed.” Later, appellant told a fellow inmate at the Mississippi County jail that he had shot a man with a .32 caliber revolver at the school in June of 1977 and had thrown his body off a bridge into a ditch about four miles from the school.

Here, independent of the confessions, there was substantial circumstantial evidence of the corpus delicti, i.e., that there was in fact a death and that the deceased came to his death by the act of one other than himself. Its weight and sufficiency was for the jury. This evidence, coupled with the appellant’s confession, amply supports the court’s refusal to direct a verdict of acquittal.

Appellant next contends that it was error to allow into evidence the appellant’s out-of-court confessions before the crime itself had been sufficiently proved, relying on Charles v. State, 198 Ark. 1154, 133 S.W. 2d 26 (1939), and Ark. Stat. Ann. § 43-2115 (Repl. 1977). That statute provides an out-of-court confession alone will not warrant a conviction, but must be corroborated by other proof that such an offense was committed. In Charles v. State, supra, we held that the test is not whether there is sufficient evidence to support a conviction under § 4018 of Pope’s Digest, the forerunner of § 43-2115, supra, requiring corroboration of a confession. The test is rather whether there was evidence that such an offense was committed. Here, at the time the confessions were introduced, all the corroborating evidence, as previously discussed, had been introduced with the exception of the deceased’s having been seen with a black man in his car and the testimony as to the items belonging to the victim found in the car and at the Sikeston residence and as to the .32 caliber revolver and other items taken from appellant at the time of arrest. There was sufficient evidence previously introduced to meet the test as set out in Charles v. State, supra.

Neither can we agree with appellant’s contention that the court erred in refusing his requested instruction on corpus delicti inasmuch as it appears that the court adequately instructed the jury on this subject.

Finally, we have examined the record, in accordance with Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals and find no reversible error.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Elisha Thomas HARRIS v. STATE of Arkansas
    CR 81-15
    620 S.W. 2d 289
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Elisha Thomas Harris was found guilty of attempt to commit capital murder and the use of a firearm in the commission of the offense. The convictions were for the wounding of a state trooper, Bill Breshears, at Altus, Arkansas, on January 1, 1980. At the conclusion of the trial, the jury found Harris to be an habitual offender and sentenced him to life in prison with a fine of SI5,000.00.

On appeal Harris raises only two issues, both of which are procedural. The first is that the trial court should have declared a mistrial after the judge commented on the testimony of a witness. The second claim is that the trial court erred in refusing to allow Harris to testify about his prior convictions.

Breshears had stopped Harris for a traffic violation in the early hours of New Year’s day. Breshears was locking up Harris’s vehicle when Harris shot the trooper in the head. The trooper thought he had been hit from behind and began fighting with Harris in the parking lot where Harris’s van had been pulled over. A passing motorist, Wanda Yother, stopped to assist the trooper and Harris was arrested at the scene shortly afterwards.

At the trial Breshears, the arresting officer, several members of the State Police investigative squad, and Mrs. Yother all testified. The prosecution also presented Mrs. Yother’s thirteen year old daughter, Susan Yother. Susan testified, but was unsure of courtroom procedure and the judge had to calm her at the beginning of the young girl’s testimony. When Susan finished testifying, the judge said: “You did a good job, Susan. You step down.” At the end of the day the defense made a motion for a mistrial based on the fact that “the court inadvertently made a comment on the evidence when he told Susan Yother that she did a good job in her testimony.

The evidence of Harris’s guilt was overwhelming. Susan was not a material witness since her view of the fight was from a parked car and she could not distinguish the combatants. No objections were made at the time the judge made the statement and there was no renewal of the motion for mistrial. We find that any error was harmless when viewed in the context of the entire record. In Walker v. Bishop, 408 F. 2d 1378 (8th Cir. 1969) the Court considered a trial court’s remarks and found nothing in the remarks that indicated any opinion of guilt or “that could possibly have influenced the jury from exercising an impartial judgment.” The Walker Court then stated the test that we apply here:

[T]he only way to ascertain the true meaning or import of any isolated remark is to consider it in the light and context in which it is uttered. This is just plain common sense as well as good law.

The trial judge refused to declare a mistrial and we cannot say he was wrong. In West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973) this court held that the trial judge has wide discretion in granting or denying a motion for a mistrial, and that we will not reverse a judgment unless there is an abuse of discretion or manifest prejudice to the complaining party.

Harris’s second claim involves his five prior felony convictions, all of which were the result of guilty pleas. The jury found him guilty of four or more prior convictions. The prosecution offered certified copies of the convictions from the various Virginia counties where the crimes took place. During an in-chambers hearing Harris asked the trial court to allow him to present to the jury his contention that he was actually innocent of the three previous crimes and had only pleaded guilty on advice of counsel. Harris stated that his attorney in the earlier charges had told him that if he did not enter the pleas he would get more time on conviction of the two crimes that he had actually committed. In addition, Harris claimed that he had been released from jail on a Writ of Habeas Corpus on one of the crimes. However, the habeas did not go to his guilt or innocence, but pertained only to the amount of time served.

The trial judge refused to allow Harris to present these arguments to the jury. On appeal Harris argues that Ark. Stat. Ann. § 41-1005 (Repl. 1977) gives him the right to controvert evidence of his previous felony convictions. That is true, but the statute does not give Harris the right to argue his innocence at this late date when he has conceded that he pleaded guilty to each of the earlier felonies. Under North Carolina v. Alford, 400 U.S. 25 (1970), these guilty pleas would be valid even if Harris had made the claim of innocence at the time the pleas were entered.

The Arkansas statute would allow Harris to attack the prior convictions on other grounds, but it does not allow him to try those cases again. For example, Harris could offer testimony that the evidence offered to prove the prior felonies did not consist of certified copies of the convictions or that he had not been represented by an attorney at the earlier trials. Harris could also offer evidence that he was not the same person as the Elisha Thomas Harris named in the earlier convictions. Leggins v. State, 267 Ark. 293, 590 S.W. 2d 22 (1979). However, he made none of these claims. The evidence offered to the Harris jury consisted of copies of five prior convictions and each copy showed that Harris had been represented by an attorney at the time the guilty plea was entered. The trial judge held that a claim of innocent to the earlier charges was not relevant to the present case. In McConahay v.State, 257 Ark. 328, 516 S.W. 2d 887 (1974) we noted that it is for the trial court to determine the preliminary issue as to admissibility of evidence.

Since this case involved a life sentence we have reviewed all errors prejudicial to the rights of the defendant, as required by Ark. Stat. Ann. § 43-2725 (Repl. 1977) and find none that will require us to reverse the conviction.

Affirmed.

Adkisson, C.J., concurs in part, dissents in part.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion on two points. The first point is that I think the trial judge commented on the evidence and the second is the court improperly imposed limitations upon a convicted party in presenting evidence in mitigation of his sentence.

After a witness on behalf of the state testified in a very damaging manner against the appellant, the court stated: “You did a good job, Susan.” It appears from the record that Susan was the only witness who testified that she saw the appellant using a flashlight or a club on the officer’s head during the fight. The statement by the court may have been inadvertently made in one sense but it most certainly was consciously made and the jury was no doubt listening. No other witness received such comment by the court. It seems to me that the likely effect of this comment was to cause the jury to think that the trial judge was persuaded this young lady told the truth while she was on the stand. Actually, the testimony of the other witnesses contradicted what she said in many respects. Any way you measure it, it stills amounts to a comment on the evidence and is prohibited by the Constitution of the State of Arkansas. Art. 7, § 23; Chicago, R.I. & Pac. R.R. Co. v. Adair, 241 Ark. 412, 407 S.W. 2d 930 (1966).

The second point I disagree with the majority on concerns the handling of the sentencing phase of appellant’s trial. The majority has now compounded the error which they committed in the case of Hobbs v. State, 273 Ark. 125 (1981). However, Hobbs did not go so far as the present case does. Had the appellant in the present case been allowed to take the stand and testify, as he wanted to, he would have been subject to cross-examination and therefore would not have been violating the rule laid down in Hobbs.

The Constitution of the State of Arkansas, Art. 2, § 10, states that an accused shall have the right to be heard by himself and his counsel. In other words, he has a constitutional right to address the jury. This was not necessarily denied in Hobbs v. State, supra, although there the majority did rewrite the legislation enacted by the Arkansas General Assembly to an extent. In the present case they have not only rewritten it, they have destroyed what was left of the statute.

Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977) states:

... Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters; ...

For the life of me I cannot see any words or inferences in the foregoing language which would prohibit a convicted person from stating that he only entered the former guilty pleas to keep from receiving more harsh punishment. The appellant was in effect attempting to deny his prior convictions. To disallow a convicted person to attempt to show that his prior convictions were the result of intimidation, coercion, mistreatment, or other unlawful means, would result in grave injustice. Ark. Stat. Ann. § 41-1005 (2) (Repl. 1977) states:

If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant’s previous felony convictions or previous findings of the defendant’s guilt of felonies. The defendant shall have the right to hear and controvert such evidence and to offer evidence in his support.

The majority opinion simply denies him the right to offer evidence in his support. He clearly wanted to testify that he was not guilty of some of the charges and that one of the conviction had probably been set aside. The trial court pulled from the air a rule that unless the appellant had something in writing with him to prove his allegations he could not present it to the jury. This cannot possibly have been the intention of the legislature when enacting this legislation. The state is not even bound by such a strict rule.

It is obvious the legislature intended to allow a convicted felon a rather free hand in presenting matters in mitigation. This is true because such presentations were exempted from the Rules of Evidence and no specific restrictions placed thereon except as to relevancy. Obviously, a person should not be allowed to retry his prior felonies; but, on the other hand, it is equally obvious that he should be able to tell the jury the circumstances surrounding the conviction if he so desired. Otherwise, both the constitution and the statutes which authorize him to offer evidence in his behalf are only partially effective. It is extremely unlikely that the appellant would have satisfied the trier of facts, beyond a reasonable doubt, that he was not guilty of the prior felonies. Nevertheless, he has the right to try. Ark. Stat. Ann. § 41-1003 (Repl. 1977). In this case had the jury believed the appellant if he stated that he did not have four convictions, his sentence could have been as low as ten years. On the other hand, his sentence was automatically from fifty years to life. Therefore, I am unwilling to participate in an opinion by this court which denies an appellant his constitutional and statutory rights.

Adkisson, C.J., has authorized me to state he joins in that part of the dissent relating to evidence in mitigation.


author: John I. Purtle, Justice.

text:
    EAGLE MATERIAL HANDLING OF ARKANSAS, INC. v. ACME DOCK SPECIALISTS, INC. et al
    81-64
    616 S.W. 2d 716
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Rose Law Firm, for appellant.

      John B. Plegge, for appellees.
   John I. Purtle, Justice.

This appeal is from the ruling of the Pulaski County Circuit Court dismissing a third-party complaint on the grounds that appellee is not subject to the personal jurisdiction of the court under the long-arm statute. The only argument on appeal is that the court erred in holding that appellee was not subject to the jurisdiction of the court pursuant to Ark. Stat. Ann. § 27-2502 (Repl. 1979). We agree with the ruling of the trial court.

Barbara Ann Stack suffered severe injuries when her arm was caught in a paper shredder which she was operating at the Blue Cross-Blue Shield building. She was a Kelly Girl on duty as a temporary employee at the time of the injury. The shredder had been procured in a circuitous manner. Eagle Material Handling of Arkansas, Inc. contacted ap-pellee, by telephone, in Kansas City, Missouri. As a result of the telephone conversation appellee mailed certain pamphlets to the appellant showing the various types of paper shredders which were available. Appellant took this material to Blue Cross which ultimately .selected the machine in question. Appellant then issued its purchase order to the appellee who in turn issued its purchase order to the manufacturer. Appellee instructed the manufacturer to ship the machine to Blue Cross, to bill the appellant for the machine, and to remit appellee’s commission of $366 directly to them. The instructions were followed. The only question presented to this court is whether Acme Dock Specialists, Inc., appellee, was subject to' the jurisdiction of the court pursuant to Ark. Stat. Ann. § 27-2502, commonly called the long-arm statute. The pertinent parts of this statute are:

C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State;
(b) contracting to supply services or things in this State;
(c) causing tortious injury by an act or omission in this State;
(d) causing tortious injury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State;

It is obvious that appellee was not transacting any business in this state. It had not been in the state nor did it have an agent in the state. In fact, there is no evidence that appellee even solicited business in the state of Arkansas. The one isolated incident here in question resulted from a contract made by an Arkansas corporation to the appellee. After a careful examination of statutory and case law, we have not located a case which holds that a person submits to personal jurisdiction unless they at least did some business or some act or transaction within the confines of the state of Arkansas. Even a single contractual obligation might bring a person within the statute under the proper circumstances. Shannon v. Fidelity National Bank, 259 Ark. 186, 531 S.W. 2d 958 (1976).

We cannot say that the trial court’s decision was clearly erroneous. In fact, we have been unable to find any evidence to support the appellant’s position in this case.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. WHITE ADVERTISING INTERNATIONAL
    81-47
    620 S.W. 2d 280
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981
    [Rehearing denied September 21, 1981.]

      Thomas B. Keys and Charles Johnson, for appellant.

      Paul Henson, for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether the Administrative Procedure Act, Title 5, Chapter 7 (Repl. 1976), is applicable to decisions by the Arkansas State Highway Commission to grant or deny permits for outdoor advertising signs. No evidence was taken in this case and the lower court made its decision on the pleadings alone. Those pleadings establish that the appellee, White Advertising, held nine permits to erect and maintain outdoor advertising signs no closer than 660 feet from the right-of-way of Interstate 55 near Blytheville. The permits for the signs were issued by the Commission pursuant to the Highway Beautification Act, Ark. Stat. Ann. Title 76, Chapter 25 (Repl. 1957 and Supp. 1979). The appellant Commission pleaded that seven of the signs had been destroyed during a storm and that permits to rebuild them had never been issued. White Advertising denied that the original signs had been destroyed and contended that the original permits were still valid. The pleadings admit that the Commission caused the seven signs to be cut down after notice but without an administrative hearing. White alleged that seven signs had a replacement value of §122,504.00 and that it is suffering a monthly rental loss of §3,429-70. Appellant Commission denies the claimed losses.

The pleadings admit that the Commission voided permits for the maintenance of two additional signs. The Commission contends that the permits were voided only after the discovery that they originally were issued upon the false representation that the signs were 660 feet from the right-of-way. White contends that they were properly located and that no false representations were made. Both parties agree that the Commission has made a decision to cut down these two signs.

The trial court ruled that the Commission’s actions were void and mandated the Commission to reissue the permits for all nine signs.

The Commission argues that jurisdiction does not lie in the circuit court. Appellee White’s prayer for relief asked, among other things, an order requiring the Commission “to conduct a hearing in accordance with the Administrative Procedure Act.” This amounts to a petition for a writ of mandamus which is cognizable only in circuit court. Arkansas State Police Commission v. Davidson, 252 Ark. 137, 477 S.W. 2d 852 (1972). The Commission was fully aware of the nature of the complaint and, as an affirmative defense, pleaded that neither a writ of mandamus nor a writ of certiorari should lie against the Commission. The circuit court clearly had jurisdiction.

The Commission contends that its admitted decision to cancel permits and cut down signs does not amount to an “adjudication.” In Arkansas State Highway Com’n. v. Wood, 264 Ark. 425, 572 S.W. 2d 583 (1978), we held that the Commission is subject to the adjudicatory provisions of the Administrative Procedure Act, but we did not define what acts of the Commission constituted adjudication. Ark. Stat. Ann. § 5-701 (d) simply characterizes an adjudication as a final disposition in which a state agency is required by law to make its determination after notice and a hearing. There is no statute enumerating all of the occasions which require notice and a hearing. However, both the state and federal constitutions provide that no person may be deprived of property without due process of law. Under the Commission’s procedure appellee stands to be deprived of property without being afforded due process. Therefore the Commission is required by law to make its determination only after an adjudication, and that requires a notice and a hearing.

The trial court ordered the permits to be reissued. Such an order substitutes the judgment of the circuit court for that of the Commission. Article 4 of the Arkansas Constitution prohibits intrusion by the judiciary upon the domain of either the legislative or the executive branches of government. Wenderoth v. City of Port Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971) and City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976). The Commission is the proper agency to conduct the initial hearing and make the decision. As we said in Gordon v. Cummings, 262 Ark. 737, at 740, 561 S.W. 2d 285 (1978):

It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues ... This recognition has been asserted, as perhaps the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

Ark. Stat. Ann. § 5-710 requires that an administrative agency make findings of fact and conclusions of law. Our decision in Arkansas Savings & Loan Ass’n. Board v. Central Arkansas Savings & Loan Ass’n., 256 Ark. 846, 510 S.W. 2d 872 (1974) sets out the reasons which require that the statute must be complied with.

The reasons have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration, helping parties plan their cases for rehearings and judicial review, and keeping agencies within their jurisdiction.

As the administrative agency has not held a hearing and has not stated its findings of fact and conclusions of law, the correct procedure is to reverse and remand to the agency for further proceeding. Arkansas Savings & Loan Ass’n. v. Central Arkansas Savings & Loan Ass’n., supra.

Reversed and remanded.

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


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Ronald WENGER v. Maurice KIECH
    81-124
    616 S.W. 2d 714
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Ponder & Jarboe, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellee.
   Robert H. Dudley, Justice.

Appellant Ronald Wen-ger, a farm employee, brought this tort action against his employer, Maurice Kiech, for injuries sustained in the course of employment. Appellant and another employee rode on a large tractor to check fences and make repairs where needed. Neither employee had a right of supervision over the other. When they began work, appellant was standing beside the driver on the axle of the tractor and was holding onto the fender. This was the customary and established place for the second person to ride. After several stops appellant Wenger climbed atop a slightly elevated grader blade which was at the rear of the tractor and was turned backwards. While riding on the blade appellant was injured when a limb flipped up from the ground and struck him on the leg. The appellant admitted that the accident would not have happened if he had been riding in the customary place. He also admitted that neither appellee Kiech, nor Kiech’s foreman, knew about appellant Wenger riding on the blade. There was no evidence tending to prove that appellee had any reason to anticipate that appellant would ride on the blade. At the conclusion of the appellant’s testimony, the trial court granted a directed verdict.

The employer owes an affirmative duty to furnish a safe place for an employee to work. Mississippi Valley Power Co. v. Hubbard, 181 Ark. 487, 26 S.W. 2d 118 (1930). However, when an employee selects an unsafe place for work, contrary to the place selected by the employer, and the employer could not reasonably anticipate the employee’s action, then the employer owes no duty to make that position safe, and his failure to do so is not actionable negligence. St. Louis, I. M. & S. Ry. Co. v. Schultz, 115 Ark. 350, 171 S.W. 876 (1914). In this case the customary position was to ride on the axle of the tractor holding onto the fender. The employer had no reason to anticipate that any other place on the tractor would be occupied. If the employee had remained in the usual place he would not have been injured.

To determine the propriety of a directed verdict we take that view of the evidence most favorable to the plaintiff to see if there is any substantial evidence upon which the jury could have based a finding of negligence. Jackson v. McCuiston, 247 Ark. 862, 448 S.W. 2d 33 (1969). Taking that view of the evidence most favorable to the appellant, we can find no substantial evidence upon which a jury could have based a finding of negligence as the employer did not know, nor could he anticipate, that the employee would choose to ride on the grader blade.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. The appellant did not argue that his employer was negligent in requiring him to ride on the axle of the tractor. He apparently assumed it was not improper for two people to be on a tractor. I agree with the result reached.


text:
    Gary Lee WILLIAMS v. STATE of Arkansas
    CR 80-174
    620 S.W. 2d 277
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Wayne Boyce and E. Alvin Schay, State Appellate Defender, by:JackR. Kearney, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On February 5, 1976, appellant Gary Williams was charged by information with capital murder, kidnapping and rape. The State sought enhancement of the sentences by charging that the appellant previously had been convicted of two or more felonies and employed a firearm in the course of the crimes. Local attorneys were appointed to defend the appellant. One of the attorneys recorded four of the client-attorney conferences. The prosecuting attorney refused to bargain for a plea and the principal issue discussed at the conferences was whether appellant would receive a death sentence. The attorneys for appellant subsequently filed a number of pretrial motions.

On May 13, 1976, the appellant entered his plea of guilty to the charges of capital, murder, kidnapping and rape. He additionally admitted that he had two prior felony convictions and that he had used a firearm in the commission of each of the crimes. No plea agreement had been reached and the prosecutor still demanded the maximum sentence on all counts, including the death penalty for the capital murder. The trial court conducted the plea hearing so that the appellant’s rights were protected in accordance with Rule 24.4 of the Rules of Criminal Procedure (Vol. 4A, Repl. 1977). The court explained to appellant the nature of the various charges, the maximum and minimum sentences, the effect of enhancement and the fact that the court could impose additional imprisonment on each charge. The trial judge also explained the right to trial by jury, the right to confront his accusers and the right to subpoena witnesses. The court asked a number of questions to make certain that the appellant understood his rights and that he freely and certainly waived them. The judge asked about the factual basis for the pleas, determined that the pleas were not a product of coercion and that appellant was satisfied by the representation of his court appointed attorneys. The prosecutor then asked the court to sentence the appellant to the maximum enhanced sentences for having committed the crimes of rape and kidnapping and in addition, asked that the sentences be ordered to run consecutively. He also asked that a jury be empaneled to decide the punishment on the capital murder charge. The court withheld the imposition of sentences on the guilty pleas until a jury could be empaneled to determine the sentence on the capital murder guilty plea. Since there was no plea bargain, there was no need to ask the appellant, pursuant to Rule 24.5, A. R. Crim. P., if he understood the sentences were to run consecutively or concurrently.

On June 14, 1976, the appellant filed a motion stating that he had waived his right to a jury trial, that the State did not object, and that by not objecting the State had also waived a jury trial. He then asked the court, sitting as a jury, to set all of the sentences. That motion was not ruled upon because on August 6, 1976, nearly three months after the guilty pleas and just before the jury was to be brought in, the prosecuting attorney informed the court and the appellant that the State would waive the death penalty. He announced that the State would stipulate that the mitigating circumstances outweighed the aggravating circumstances. The defendant then renewed his guilty pleas, stated they were freely and voluntarily given and that he was satisfied with the services of his attorneys. The court then sentenced the defendant to the following consecutive terms: life without parole for capital murder, life imprisonment for rape, thirty years for kidnapping, and fifteen years for employing a firearm in the commission of the crimes.

On May 4, 1978, appellant filed a motion for post-conviction relief under Rule 37, A. R. Crim. P., alleging that he had been coerced into pleading guilty. The trial court denied the petition and appellant brought an appeal to this court. In Williams v. State, 272 Ark. 98, 612 S.W. 2d 115 (1981), we remanded the case to the trial court so that findings of fact and conclusions of law could be entered. The trial court complied and appellant now contends the findings of fact are in error. On review of the denial of post-conviction relief this Court reverses only if the findings of the lower court are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980).

The appellant was advised by his attorneys that if he went to trial before a jury he could be given the death sentence. He contends that this constituted a threat rendering his confession coerced and invalid. The Supreme Court of the United States held in Brady v. United States, 397 U.S. 742 (1970), that a plea of guilty entered to avoid the death penalty was not a compelled plea within the meaning of the Fifth Amendment. Appellant’s justified fear of receiving a higher sentence if he went to trial does not warrant post-conviction relief. As we stated in Todd v. State, 253 Ark. 283, 485 S.W. 2d 533 (1972):

A plea of guilty even if induced by the possibility of a more severe sentence does not establish coercion.

The question is whether the guilty plea was entered intelligently and voluntarily and done with the advice of competent counsel. The burden was on appellant to show that the advice he received from his attorneys was not within the range of competence demanded of lawyers in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1973). The recorded conferences supply an ample basis for the trial court to find that appellant had failed to meet this burden of proof. In addition, we note that on both of the occasions when he pleaded guilty he testified that he was satisfied with his attorneys. On both plea days, appellant testified that his plea was free and voluntary, facts which we consider. Simmons v. State, 265 Ark. 48, 578 S.W. 2d 12 (1979). At the post-conviction hearing the following was elicited from appellant.

Q. Did you plead guilty of your own free and voluntary will?
A. Yes, sir. I pleaded guilty to keep from getting the death penalty.

Appellant claims that his plea was not a knowing and intelligent one as he thought the sentences would run concurrently. There was no plea bargaining so the appellant could not have been misled by the prosecutor or the court. He had been in prison before and was familiar with the difference between consecutive and concurrent terms. He knew that he had pleaded guilty to each of the crimes. The prosecutor demanded consecutive maximum enhanced terms upon the first plea of guilt on May 13, 1976. Nearly three months later on August 6, 1976, appellant renewed his guilty pleas and was sentenced to consecutive terms. His attorneys testified they advised him of the possibility of consecutive sentences. He did not testify to any agreement to make the terms concurrent. His first objection to consecutive terms came two years later, on May 4, 1978, in a post-conviction proceeding. The trial court was justified in finding that the pleas of guilt were knowingly and intelligently given.

Affirmed.


text:
    Michael Edward GLOVER v. STATE of Arkansas
    CR 81-58
    619 S.W. 2d 629
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981
    [Rehearing denied September 14, 1981.]

      William H. Craig, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

By this appeal, áppellant urges that we hold as a matter of law that possession is not a lesser included offense to delivery of a controlled substance. We decline to make that holding.

Michael Glover was charged with delivery of heroin in violation of Act 590 of 1971, as amended. He was convicted and sentenced to 30 years in prison. A motion for a new trial was granted on undisclosed grounds. At the second trial the State offered the testimony of Rick Finley, an undercover policeman, and Howard Carrithers, a go-between, that they had gone to a Little Rock residence to buy drugs from Glover, whom Carrithers knew. Glover and several other people were there, including Glover’s girl friend, Paula, and her 15 year old sister, Lori. Carrithers introduced Finley as a prospective buyer, wanting two “papers” of heroin at $20.00 each. Glover said he would have to get it and he and Paula left for about 30 minutes. When they returned, Glover motioned for Carrithers to follow him into a hallway out of Finley’s sight, where Glover delivered two packets of heroin, explaining that he did not want to deal directly with a stranger. In Glover’s presence Carrithers handed the two packets to Finley, who said he needed only one and tried to hand the extra packet to Glover, who declined it. Finley asked if it were all right to put it on the table and Glover answered, “yes.” Finley then held out a $20.00 dollar bill in payment which Glover did not accept and afer a moment’s lapse Lori took the bill from Finley. As they were leaving, Glover warned Finley not to burn the heroin.

When the State rested, the defense moved for a directed verdict of acquittal, there being no proof of anything of value had passed to Glover. The trial court granted the motion with respect to the charge of delivery but held that possession was included in the offense of delivery and submitted the case to the jury on the offense of possession. The jury returned a verdict of guilty and fixed punishment at two years in the Department of Correction. For reversal, Glover contends that possession is not included in delivery. We affirm the judgment of the trial court.

Before turning to the point argued, so as to avoid any mistaken inferences of this opinion with respect to the crime of delivery in Act 590, we disagree with the trial judge that the evidence presented by the State was insufficient to support a conviction on the charge of delivery — that issue should have been submitted to the jury. Delivery is defined in Act 590 as the transfer from one person to another of a controlled substance “in exchange for money or anything of value.” Since direct proof was wanting that the money was paid to Glover, the trial court determined that there was a failure of essential evidence. But from the circumstances as a whole, the jury could have inferred quite plausibly that there was an unlawful exchange of heroin for money, even though the money was not immediately delivered to Glover. Glover and Finley were strangers to each other, so there was no suggestion of a gift; their preliminary discussions clearly contemplated a sale of heroin for the sum of $20.00 — no other conclusion is possible under the proof. Most significantly, the money itself remained in the house when Finley left with no attempt by Glover to disavow the sale. Whether Glover permitted Lori to keep the money or later claimed it for himself does not defeat the obvious nature of this transaction as constituting a transfer of heroin in exchange for money and it was a mistake for that issue not to have been submitted to the jury.

Returning to the argument that the court erred in treating possession as included in the offense of delivery, we find no error. In effect the trial court simply reduced a more serious offense under Act 590, delivery of heroin, to the less serious offense of possession, also prohibited under the Act (Article IV, § 1(c) ), which the evidence more fully sustained, and submitted that issue to the jury.

Neither brief cites any direct authority for the proposition that one may deliver a controlled substance without having possession of it and our own research has uncovered nothing plainly in point. Appellant cites Ark. Stat. Ann. § 41-105(2) which defines an “included offense” as one which is established by proof of the same or less than all the elements required to establish the commission of the offense charged. This definition derives from dictum in Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407 (1968), quoting the Supreme Court of Indiana in the case of Beck v. State, 148 N.E. 2d 695 (1958):

To be an included offense, all the elements of the lesser offense must be contained in the greater offense, the greater containing certain elements not contained in the lesser.

Building on this language, the appellant reasons that if there is any possible situation or set of facts which would support a delivery without “actual dominion, control or management,” then possession would not be included in the charge of delivery even though the evidence produced at trial might show such actual dominion, control or management. (Citing Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972).) Possession, while not defined in Act 590, is defined in Ark. Stat. Ann. § 41-115 (Repl. 1977) as exercising “actual dominion, control or management” of something. If we had no more than this, it would lead to the conclusion that a narrow concept of possession is not intended. Dominion implies wide latitude and is defined as including even the “right to possession.” (Webster’s New International Dictionary, 2d Ed.) Nor does the word “actual” reduce the usage to one of literal or physical possession. This view is consistent with the case of Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976), holding that actual, physical possession is not required, but that “constructive possession of a controlled substance means knowledge of its presence and control over it.” Citing People v. Williams, 95 Cal. Rptr. 530, 485 P. 2d 1146 (1971), the opinion states:

*** Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. (People v. Francis, supra, 71 Cal. 2d 66, 71, 75 Cal. Rptr. 199, 450 P. 2d 591).

We conclude that one cannot deliver heroin without at the same time exercising some degree of actual dominion, control and management over it, even though he may never physically possess it and to hold as a matter of law that it could not be otherwise would be misguided. It is clear that the case law pertaining to lesser offenses has been general rather than literal, as appellant would have us make it. In State v. Nichols, 38 Ark. 550 (1882), it was said that lesser and greater offenses are included if they belong to the same generic class. See also, Guest v. State, 19 Ark. 405 (1958), and Cameron v. State, 13 Ark. 712 (1853), which defines greater offenses as including lesser offenses of “a kindred character.” A review of the many cases touching on greater and lesser offenses leads to the view that the decisions of this jurisdiction have taken a broad rather than a narrow interpretation of included offenses.

We are not overlooking the fact that the Information brought against the appellant charged only delivery of a controlled substance. Without arguing the point, appellant alludes to dictum in Caton and Headley v. State, supra, which states that where the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense, a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element, citing Warner v. State, 54 Ark. 660, 17 S.W. 6 (1891). But assignments of error may not be raised for the first time on appeal, and it is clear that no objection on this ground was made either at the in-chambers proceedings relative to appellant’s motion for a directed verdict of acquittal, or in his later motion for a judgment n.o.v. Hence, it cannot be asserted on appeal if it was not first raised before the trial court. Crank v. State, 165 Ark. 417, 264 S.W. 936 (1924); Jones v. Reed, 267 Ark. 253, 590 S.W. 2d 270 (1979). The only objection offered below or argued on appeal is that possession is not necessarily included in delivery.

We find another reason for rejecting the argument. If we were able to decide, as appellant exhorts, that possession is not included in delivery as a matter of law, it would deprive anyone accused of delivery of a controlled substance of the right to have a jury charged that it could consider the lesser offense of possession. Such a decision would undermine if not overrule a line of reasoned decisions of this court recognizing the right of an accused to that instruction. See Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976), and Caton and Headley v. State, supra, where it is said:

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. Walker v. State, 239 Ark. 172, 388 S.W. 13; Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010; Smith v. State, 150 Ark. 193, 233 S.W. 1081, Allison v. State, 74 Ark. 444, 86 S.W. 409; Davis v. State, 72 Ark. 569, 82 S.W. 167.

We have held this rule to be so salutary that the instruction should be given to the jury in appropriate cases even over the defendant’s objection. Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713 (1962). The circumstances of this case provide an apt illustration: had the trial judge refused to grant the motion for a verdict of acquittal on the charge of delivery and submitted that issue to the jury, the appellant would plainly have been entitled on this evidence to an instruction permitting the jury to consider the lesser offense of possession and had the judge refused, it would have been reversible error under Milburn v. State, Caton and Headley v. State, and the many cases cited. To adopt the rule appellant urges would produce a fault in those decisions.

The judgment is affirmed.

Purtle, J., not participating.


author: Mark W. Grobmyer, Special Justice.

text:
    E. R. HENRY, Jr. and Sterling HENRY v. Cecil KENNEDY et ux
    80-217
    619 S.W. 2d 632
    Supreme Court of Arkansas
    Opinion delivered July 13, 1981

      Gill & Johnson, by. Marion S. Gill, for petitioners.

      Charles S. Gibson, for respondents.
   Mark W. Grobmyer, Special Justice.

The issue before this Court concerns the Arkansas Court of Appeals’ interpretation of Ark. Stat. Ann. § 34-1801 (Supp. 1979). The Honorable Donald A. Clark, Chancellor of the Desha Chancery Court, held that there exists in the State of Arkansas a right of remaindermen to bring partition against other remaindermen in land subject to a third party life estate. The Court of Appeals reversed the Chancery Court finding there to be an error as to a matter of law. The Court of Appeals found that the Chancery Court should have determined that there is no right of a remainderman to bring a partition action against other remandermen subject to a third party life estate, where the remaindermen had no present possessory interest in the property sought to be partitioned. We granted certiorari to review the legal basis of the Court of Appeals decision in reversing the Chancellor.

The facts of the case are undisputed. As the Court of Appeals stated, Testator J. C. Kennedy owned 560 acres of Desha County, Arkansas, and at his death he devised a life estate to his widow, Valerie, and the remainder, in equal shares, to his nephews Wilburn Kennedy and Cecil Kennedy.

Wilburn Kennedy conveyed his undivided one-half remainder interest to E. R. Henry, Jr. and Sterling L. Henry who were Appellees before the Court of Appeals. E. R. Henry, Jr. and Sterling L. Henry petitioned for partition as owners of one-half the remainder interest, against Cecil Kennedy, Appellant before the Court of Appeals, owner of the other one-half remainder interest. The Henrys ask for the property to be divided in kind, if susceptible, or, that the remainder interest of the parties to the litigation be sold and the proceeds divided.

The Chancery Court found the lands to be diverse and not susceptible to equitable division. The Chancery Court, therefore, ordered a sale of property subject to the life estate. Cecil Kennedy and his wife, Louise Kennedy, appealed to the Court of Appeals. (Louise Kennedy was made a party defendant in order that any right of possibility of dower, or any other interest, she might have in and to the subject property might be adjudicated.)

On appeal the Kennedys contended that the Chancery Court exceeded its jurisdictional power in decreeing partition sale of the remainder interest exclusive of the life estate. The Henrys contended that the Kennedys did not raise the question of jurisdiction of the Chancery Court to entertain a partition action by the remainderman subject to a life estate at or before the time of trial. Therefore, they contend the Kennedys were precluded from raising the question on appeal. We hold specifically that the Chancery Court was correct in stating its findings of fact and conclusions that, “while not specifically raised at trial, the defendants in their brief raised the question of the jurisdiction of this Court to entertain a partition action by remainderman in land subject to a life estate. Jurisdiction in a trial court may be raised at any time and in almost any manner.” Boyett v. Boyett, 269 Ark. 36, 598 S.W. 2d 86 (1980); Worth Insurance Co. v. Patching, 241 Ark. 620, 410 S.W. 2d 125 (1966).

The Court of Appeals apparently agreed with the Chancery Court’s disposition of this issue, but differed substantially with the trial court’s interpretation of the law with respect to the right of a remainderman to bring a partition against other remaindermen in lands subject to a third party life estate. The Court of Appeals identified Ark. Stat. Ann. § 34-1801 (hereinafter sometimes referred to as “the Statute”) as controlling this issue, but it is our opinion that the Court of Appeals erred in its interpretation of this Statute. Sec. 34-1801 provides:

Petition — Persons Entitled to File — Contents. — Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned cur-tesy, or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced except prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, shall file in the circuit or chancery court a written petition in which a description of the property, the names of those having an interest in it, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the division, and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners, and thereupon all persons interested in the property who have not united in the petition shall be summoned to appear. [Emphasis added.]

The Court of Appeals appeared to have some difficulty in attempting to determine how remaindermen could come within the purview of this Statute in a sufficient manner to be able to utilize the Statute to obtain partition of their remainder interest. The Court of Appeals concluded that in order for a remainderman to utilize the Statute, the remain-derman must be found to have held some possessory interest in the land either as a joint tenant, tenant in common or in coparceny. The Court of Appeals further found that in the case at bar, the remaindermen, if they fit any category, must fit the category of tenants in common, but found that they could not meet this test because they had no right of present possession.

The Court of Appeals’ interpretation of § 34-1801 would be to hold that the remaindermen, between themselves, would not be able to partition their future interests. However, the Statute, the legislative history and previous findings of this Court would specifically permit remain-dermen their right of partition and we so hold.

In reaching this conclusion we first carefully examined the Statute. We could not find that the Statute specifically limits the power to partition to those who have possessory interests. Had the legislature intended for this restriction to be in place it could have easily specifically provided such a restriction. But to the contrary, by utilizing the words “or subject to a life estate” the General Assembly specifically recognized the rights of those persons who have an interest in land subject to a life estate, otherwise known as re-maindermen. The General Assembly further emphasized the broad latitude of citizens to utilize the Statute when it provided, “any persons having any interest in [the land]” could utilize the statutory right to partition.

The two amendments to the Statute in the years 1941 and 1947 contained emergency clauses wherein the legislature specifically found that the Statute should be amended to broaden its scope because it was ... “working an unjust hardship upon citizens owning property jointly, in common or in coparceny, absolute or subject to the life estate of another or otherwise, and that such condition is hindering the alienation of real property and prejudicing the property rights of many citizens.” Section 3 of Acts 1941, No. 92 and Section 3 of Acts 1947, No. 161. Nowhere did the General Assembly provide that one must have a possessory interest in property in order to take advantage of the partition rights provided by the Statute and at every turn the General Assembly has sought to broaden the rights of different categories of citizens to exercise the right of partition.

This Court has previously interpreted the Statute and has previously specifically held that Act 92 of 1941 amended the Statute to allow partition among remaindermen, subject to the life estate of another. Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338 (1956). We note that the Court of Appeals has taken certain statements in the Monroe case and utilized them to support its position; however, as the Court of Appeals indicated the issue in the Monroe case was substantially different from the one of the case at bar and must be read in that light.

As recently as 1976 this Court has reaffirmed its holding that the Statute allows partition of property by the remain-dermen subject to the life estate of another. In such cases we have also recognized that the courts of other jurisdictions have held that a remainderman can obtain partition as against other remaindermen and in one case this Court recommended to an appellee that he might specifically seek partition of the remainder interest subject to the life estate of another. Bowman v. Phillips, 260 Ark. 496, 542 S. W. 2d 740, 741 (1976).

To further buttress our interpretation we found guidance from the Restatement of Property which as a general rule in Section 175 discusses the statutory power which allows partition of future interest in land.

(1) When a future interest in land is owned in a joint tenancy or in a tenancy in common then a concurrent owner in such future interest has power to compel partition thereof when the requirements of all the Clauses of Subsection (2) are satisfied.
(2) The prerequisites for the existence of the power stated in subsection (1) are the following:
(a) the state wherein the affected land is located has a statute which, in specific words, confers the power to compel partition on a joint tenant or tenant in common in a “reversion or remainder”, ... or in “an interest or estate in land,” or which employs other language of like import [emphasis added]; and
(b) a joint tenant or tenant in common, in exercising such power complies with all the requirements specified by such statute as to matters other than the prerequisite variety of future interest; and
(c) the creator of the concurrently owned future interest has not manifested effectively an intent that no such power to compel partition be present; and
(d) the future interest of such joint tenant or tenant in common is a future estate in fee simple absolute and not subject to a condition precedent. Restatement of Property, Section 175 (1936) page 676.

In the case at bar, the remaindermen seeking partition appear to have a vested remainder interest in the fee simple absolute, subject only to a life estate. It is well recognized that in addition to Arkansas there are other jurisdictions that give citizens the power to partition when they own, as a cotenant of the future interest, an indefeasibly vested remainder or reversion in fee simple absolute, subject to the life estate. See L. Simes, Law of Future Interest, Second Edition (1966), and see 59 Am. Jur. 2d Partition, Section 170, page 899.

We specifically recognize that a statute, such as that involved in this case is contrary to the general rule of the common law which purports to prohibit a party from maintaining a proceeding for compulsory partition unless he has an estate which consists of a possessory interest. 59 Am. Jur. 2d Partition, Section 170, page 899. However, the General Assembly of the State of Arkansas has not provided in the subject Statute that there be any requirement of present possessory interest held by the remainderman and to hold otherwise would be writing a limitation into the Statute which does not presently exist. We cannot ignore the fact that the amendments to the Arkansas partition statute have consistently been moving toward broadening the right of different groups of citizens to utilize the right of partition provided by the Statute to avoid hindering the alienation of the property rights of such citizens.

Therefore, we hold that under Ark. Stat. Ann. § 34-1801 citizens of the State of Arkansas who have an interest in property as remaindermen, whether or not they have any possessory interest, may utilize the power of partition provided in the Statute to partition their respective future interests in the subject property which are subject to and do not affect the life estate of another.

We reverse the finding of the Court of Appeals insofar as it relates to the interpretation of Ark. Stat. Ann. § 34-1801 and we affirm the findings of the Chancery Court and its decree.

Reversed.

Hays, J., not participating.