text:
    W. H. Guthrey, et ux v. Deva Bobo Garis, et al
    4675
    432 S.W. 2d 868
    Opinion Delivered October 28, 1968

      Shaw & Shaw for appellants.

      Ilardegree & Witt for appellees.
   Paul Ward, Justice.

This litigation involves the ownership of a parcel of land 43 feet wide and 147 feet long. We may hereafter, for brevity, refer to this land as the “lot”. First, we set out below a brief summary of the parties and pleadings involved.

Complaint. On April 3, 1967 W. H. Guthrey and wife (appellants), filed a complaint in circuit court to eject Deva Gar is (appellee) from the “lot” and to recover damages. In the complaint appellants claimed to be the owners of a parcel of land (including the “lot”) described (in general) as:

A part of the northeast quarter of the northwest quarter of section 30, township 3 south, range 25 west — being approximately 380 feet north and south and 280 feet east and west consisting of 1.72 acres.

Title to said land was. deraigned through numerous conveyances since 1876. It was alleged that appellee was occupying a house built on said “lot”, and claimed same as her own property, and; that appellee had no valid title to said “lot”.

Answer. Appellee, after entering a general denial, deraigned her title to said “lot” as follows:

(1) . Deed, dated June 18, 1942, from O. G. Cowart to I. J. Cowart, conveying all of the NWV^ of the NEVé, (emphasis explained later) north of Main Street in Black Springs (excepting certain named lots and blocks not involved here).
(2) Deed, dated October 29, 1945 from J. I. Cowart to Dave Brunt, conveying a part of the lands described in (1) above.
(3) Deed, dated March 8, 1961, from Dave Brunt and wife to appellee conveying a part of Block 10 in Black Springs — describing by metes and bounds the “lot” in litigation — being 43’ east and west and 147’ north and south, being “all of lot 15 and parts of Lots 13 and 14 of said Block 10 according to plat of said town . . .”

Decree. Following the above pleadings the cause of action was transferred to chancery court and after the issues were presented on the pleadings and interrogatories, the trial court found and held:

1. The complaint in Ejectment is not supported by the evidence and the same is dismissed.
2. The title to “lot” in dispute is quieted in appellee.
3. The deeds in appellee’s chain of title wherein the descriptions read “NW% of NE%” are reformed to read “NE% of E W14”.

On appeal, appellants rely on four separate points for a reversal which we now discuss in the order presented.

One. It is here contended by appellants that the trial court erred in dismissing their complaint in Ejectment.

We find it unnecessary to discuss this point in detail. If the trial court was correct in holding that title to the parcel of land in dispute was in appellee, then appellants cannot prevail in Ejectment.

Two. Next, appellants are relying on a chain of title in them and their ancestors dating from 1876 until appellee began constructing a house on the “lot”.

Again, and for reasons stated under point One, it is deemed unnecessary to discuss this point.

Three. It is our conclusion that the trial court was correct in confirming title to the “lot” in appellee. This conclusion is based on the two grounds presently discussed.

(a) As previously indicated, we, like the tidal court, are unable to say the conveyances in appellants’ chain of title contain a definite description to the “lot”. Also, the descriptions in appellants’ tax receipts are likewise indefinite. The record shows that for the years 1954 to 1966 the description was “Part of NE14 ÑW14 Sec. 30, Twp. 3 South, Range 25 "West”, being one-half acre.

While the description in appellee’s deed is not perfectly clear, we think it is much more definite than that of appellant. It reads (transcript page 39), in essence:

Part of Block 10, Black Springs, being 43 feet by 147 feet, and includes all of lot 15; part of lots 13 and 14, and; the west 43 feet of the alley between Lot 15 on the South and Lots 13 and 14 on the North.

The above description appears to describe the parcel of land on which appellee built her home and now lives. The plat of the town of Black Springs (as attached to appellants’ brief at page 103) shows: the lots in Block 10 are twenty-five feet wide east and west; there is an alley running east and west through the middle of Block 10; Lot 15 lies south of the alley and on the west side of the Block; Lot 14 lies north of Lot 15 — abutting the alley; Lot 13 lies east of Lot 14, and; Block 10 (and the adjoining Blocks) are located in the NE% NW]4 of said Sec. 30.

It is not disputed that appellee’s house is located (at least partly) on said Lot 15.

In view of the above we can not say the court erred in finding appellee received a deed to the “lot”.

(b) In addition to the above, there is another ground on which the trial court must be affirmed.

The preponderance of the evidence, in our opinion, shows: When appellee bought the “lot” appellants knew about it, and they also knew appellee was going to build a residence thereon; appellants were aware of the fact, at all times, that appellee was actually building the house, yet they did not raise any objection.

Under the above state of facts the trial court was justified in holding appellants were estopped from questioning appellee’s title to the “lot”. See: PettitGalloway Co. v. Womack, 167 Ark. 356, 268 S.W. 353; Steele v. Jackson, 194 Ark. 1060, 110 S.W. 2d 1, and R. T. Ueltzen, et al v. Billy Roe and Neva Roe Sowl, 242 Ark. 17, 411 S.W. 2d 894.

Four. Finally, we see no merit in appellants’ contention that the trial court erred in reforming the description in appellee’s chain of title.

As previously pointed out the “lot” is a part of the NE% NW% of said section 30, while the reformed deeds purported to convey land in the NWI4 NE% of said section. The trial court held this was a mutual mistake and accordingly made the reformation. There is ample evidence in the record to sustain this holding. It reveals, among other things, that said Block 10 is not even located in the NW% of NE14, but is in the NEü hi W1/^.

It is pointed out that Dave Brunt and others filed an intervention, raising this question of reformation, and the trial court decided in their favor. The only objection raised by appellants to the court’s action is that the proof was insufficient to sustain the same. We cannot agree.

Affirmed.

Fogleman & Byre, JJ., concur.

John A. Fogleman, Justice.

I concur in the result solely on the basis of estoppel as to the main issue. I also concur in that part of the opinion relating to reformation of deeds.

Conley Byrd, Justice. I concur in the result reached on the basis of an equitable estoppel, but in doing so I must confess that appellants have a clear chain of title from the common grantor, Warren Rowton, under the following description:

“Part of the NE% NW% Sec. 30, Twp. 3 S., R. 25 West, described as follows: Begin 1206-5/7 feet West of SW corner of Block No. 1, Town of Black Springs, thence North 4 chains and 24 links; thence West 4 chains and 24 links; thence South 4 chains and 24 links; thence East 4 chains and 24 links to beginning, containing % acre, more or less.”

The appellees and their predecessors in title hold under the following description:

“All that part of NE% NW14 Sec. 30, Twp 3 S. , R. 25 West, lying North of Main Street in Black Springs, Ark., EXCEPT: - Lots 13, 14, 15, 20, 21, 22, & 23 in Block 11 and Lot 21, Block 10 and % acre in Bloch 10 known as J. D. Montgomery Lot; and S% of Block 9, all in Black Springs, Arkansas.”

The plat of Black Springs, Arkansas, filed some time shortly after 1900, shows that block 10 consists of 21 lots and the J. D. Montgomery Vz acre. Block 10 is divided by an alley running east and west, the north half of the block being lots 1 through 14, numbered from east to west. The lots in the south half of the block are numbered from west to east, with lot 15 being bordered on the west by Viola Avenue and on the east by the J. D. Montgomery property. The plat shows the J. D. Montgomery property as having 147 foot frontage on Main Street and extending north approximately the same distance.

As I read the record, which admittedly is conflicting, there is testimony from which the trial court could have found that Mr. Guthrey represented to Mrs. Garis that Dave Brunt owned the lot immediately west of the J. D. Montgomery property. In addition, there is testimony that Mr. Guthrey pointed out the boundaries of the J. D. Montgomery property and assisted Mrs. Garis’ sons in measuring from the corners thereof for purposes of locating the foundation where she was going to build. There is testimony showing a boundary fence between the J. D. Montgomery Vz acre and lot 15, which appellees claim.

While it is true that the metes and bounds description in appellants’ deed calls for a tract 280 ft. x. 280 ft., it is also true that the conveyances under which both they and appellees hold describe the area conveyed thereby as Vz acre. Since all the deeds in the chain of title under which appellants hold refer to the plat of Black Springs; the plat of Black Springs shows the J. D. Montgomery property which appellants claim to hold as only Vz acre with 147 feet along the south border; there is evidence that the boundary fences were placed in accordance with the plat; and appellant represented to Mrs. Garis that Brunt owned lot 15 here involved, I conclude that the chancellor was correct in holding that appellants wore estopped to deny Mrs. Garis’ title.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Norma Sue Ellis Baker, Guardian, et al v. William Eugene Ellis et ux
    4695
    432 S.W. 2d 871
    Opinion Delivered October 28, 1968

      Thompson & Thompson and Dave E. Witt for appellants.
    Martin, Dodds, Kidd, Hendricks & Ryan for appellees.
   Lyle Brown, Justice.

Appellants were plaintiffs below. They brought suit alleging a four-sixths interest in four lots in Little Rock and contended that their uncle, Eugene Ellis, owned the other two-sixths interest. Appellee Eugene Ellis asserted full ownership on the theory that the record title in the name of plaintiffs ’ father was actually a trusteeship for Eugene’s benefit. Alternatively, Eugene sought a lien for expenditures for improvements. The trial court rejected Eugene’s theory of trusteeship but granted his alternate prayer for a lien. Mrs. Baker, guardian of the four children, appealed from the award of the lien. There was no cross-appeal by Eugene.

The real parties in interest are four surviving children of Leonard Ellis (plaintiffs), and Eugene Ellis, defendant and surviving brother of Leonard Ellis. In his will, Leonard devised the involved lots to Eugene provided Eugene outlived Leonard; otherwise, the lots would go to Leonard’s wife. In that will Leonard did not mention the minor plaintiffs. He did make a nominal bequest to his other two children. Absent being mentioned in the will, these four children claim their right to inherit each an undivided one-sixth interest. They conceded that their uncle, Eugene, received the other two-sixths interest by virtue of the will. Plaintiffs alleged the property not to be susceptible of division in kind and asked for a sale and division of the proceeds. Eugene contended that the property was vacant when purchased in the name of Leonard; that the title was held for Eugene’s benefit in Leonard’s name because the latter had a credit rating; that Leonard raised the money to pay for the lots and the improvements subsequently placed thereon by Eugene but that Eugene repaid the advancements.

The finding of the trial court that Leonard did not hold the property in trust for Eugene is not before us. That is for the reason that Eugene elected not to appeal from that ruling.

The only question on appeal is whether Eugene’s right to a lien for improvements can be justified in law and by the evidence. The undisputed testimony is to the effect that Leonard (now deceased), Eugene, and another brother, combined their labors in improving the lot, in razing other buildings for material, and in actually constructing the house. The lot was in Leonard’s name; he obligated himself in the total sum of $6200 in raising finances for materials and construction; no other brother was asked to sign those loan commitments ; and, by the terms of the will, Leonard expressed his individual ownership of the property by making provisions for its disposition. The facts of the case are that Eugene contributed his labor to construction and lived in the house for many years; the building was located on land to which Eugene had no semblance of col- or of title; and he at no time, during a ten-year period, made request of Leonard for any title or instrument of assurance. It is not uncommon, even for uneducated people, to ask for some written evidence of their interest. i

One who believes himself to be the legal or equitable owner and improves the land of another, under color of title, can recoup the cost of the improvements. Ark. Stat. Ann. § 34-1423 (Repl. 1962). Color of title generally connotes an instrument which by apt words of transfer passes what purports to be a title but which is defective in form. Teaver v. Akin, 47 Ark. 528, 1 S.W. 772 (1886). Our record is void of evidence that any instrument of writing ever existed. The claimant, Eugene, simply relied on oral testimony that the lot was bought for him in Leonard’s name and that payments made to the lender of purchase and construction money were made from funds which Leonard withheld from Eugene’s wages. It may be significant that the fair rental value of the house was said to be $75 per month and at no time were the monthly payments equal to the rental value. It poses a reasonable deduction that Eugene was actually paying rent instead of purchase money payments.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    H. J. Solomon v. A. L. Congleton
    5-4668
    432 S.W. 2d 865
    Opinion Delivered October 28, 1968

      McKnight & Blackburn for appellant.

      Tiner & Henry for appellee.
   John A. Fogleman, Justice.

This appeal is taken from a decree granting a mandatory injunction requiring appellant Solomon to remove that part of a levee which encroaches upon the south portion of appellee Congleton’s land and another levee across Power Slough at the point it empties into L’Anguille River.

Congleton owns a forty-acre tract of land bounded on the south and east by Solomon’s lands and on the north bjr the lands of one Crawford. Power Slough runs in a southerly course across the lands of all three owners into L’Anguille River as it crosses appellant’s lands. The principal question involved is whether Solomon has obstructed a natural watercourse. On disputed testimony, the chancellor found that Power Slough was a natural drain across the property of both appellant and appellee.

Ark. Stat. Ann. § 21-406 (Repl. 1956) makes it unlawful for anyone to cause any material to be thrown in any natural drain. Section 21-407 authorizes anyone interested in the free flow of water through a drain to remove any material therein which tends to obstruct the flow. The rights of the respective parties are determined under rules clearly set out in Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110. Solomon has the right to fend off surface waters, so long as he does not unnecessarily damage his neighbor Congleton. Congleton has the right to have any natural stream or watercourse flowing from his land across Solomon’s continue its southerly flow unimpeded. Otherwise, Solomon may use his land in any way he chooses, so long as he provides channels that will take care of the waters coming onto his land via any watercourse and so long as he leaves or provides channels that will take care of such waters in ordinary conditions and in times of any recurrent floods that may he reasonably expected.

The definition of a watercourse given in Boone v. Wilson, 125 Ark. 364, 188 S.W. 1160, and repeated in the Turner case, is:

“* * * A. ‘watercourse’ is defined to be ‘a running stream of water; a natural stream, including rivers, creeks, runs and rivulets.’ * * * there must be a stream, usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land, occassioned by unusual freshets or other extraordinary causes.”

The difficulty in this case is in determining where the preponderance of the sharply disputed evidence lies.

Funk & Wagnalls New Standard Dictionary of the English Language (1961) gives the following definitions of slough.

“slough, 1. A place of deep mud or mire; bog; quagmire. * * * slough, [local, IT.S.] 1. A depression in a prairie, often dry, forming part of the natural drainage- system; sometimes deeply miry. 2. A stagnant swamp or reedy inlet, small bayou, water-channel, or pound in which water backs up, or which is filled by freshets.”

The chancellor found that Power Slough was a “natural drain.” Since he granted a mandatory injunction requiring removal of the levee, which he found to have stopped the natural flow of water, we take this to be a finding that Power Slough was a watercourse. After weighing the evidence, we cannot say that his finding was against the preponderance thereof.

Congleton testified that Power Slough has a well-defined and visible marking that can be followed across his property at an angle and running down across the Solomon land to L’Anguille River. The Solomon levees, according to Congleton, were so built that he (Congleton) has no drainage. He admitted that the slough spreads out so that there is only a “dip” with a channel about two feet deep in places. He also admitted that he had cleared a substantial part of the slough bed for cultivation.

Orvil Thomas, a witness for Congleton, testified that Power Slough does not have any well-defined banks. He described the slough as an old river run, deep in places and shallow in places, but with no banks at all. According to him, there are places one would do well to wade in hip boots and others which are shallow. He stated that it was a sloping slough but that there was a run one could follow all the way through the area in question. He said it was a natural drain and the only drain through the area.

Jake Easter, another witness called by Congleton, cleared all of the Congleton land in the slough except for one-half acre. He said that the slough was about twenty feet wide.

Solomon testified that Power Slough is very wide and without definite banks. He added that there were several small sloughs coming south off Power Slough from the Crawford land and spreading out. According to him, the slough had no definite run at that point but spread out into three runs, one of which ran across the corner of Oongleton’s property and two of which were on his own property. He said, however, that water did not run through a channel in Power Slough, but through three little “swags” and that the slough spread out over a distance of about 500 feet. This area, he added, was very low and swampy so that one could hardly walk through it because of the “elbow” brush. He admitted that, shortly after he first acquired his land about 1956, he dammed Power Slough where it was running through as a natural drainage area and used natural water for duck hunting on his premises.

Carl Brand, appellant’s witness, stated that he thought the only drainage of the Oongleton property was through Power Slough. Willie Stropes, another of appellant’s witnesses, stated that the slough had no banks and was so flat that water six inches deep in it would cover an area 100 yards wide.

The fact that Power Slough may have intermittently flattened out and flowed without well-defined banks does not destroy its character as a watercourse or deprive an upland owner of his right to insist that the flow of water be unimpeded, if it has the essential attributes at other points. Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110.

When the testimony is so conflicting, we must accord some weight to the findings of the chancellor who saw and heard the witnesses and observed their actions and reactions throughout the trial. The most convincing ■evidence tipping the scale in favor of his finding is the admission of Solomon that he voluntarily paid Congleton in 1960 for damages to a bean crop resulting from his original dam across Power Slough after Oongleton had him arrested for stopping up a natural drain.

We are not unmindful of the decision of this court in Reddmann v. Reddmann, 221 Ark. 727, 255 S.W. 2d 668. There are fundamental differences in the fact situations in the case of Turner v. Smith, supra, and the Reddmann case. In the latter case we affirmed the finding of the chancery court and adopted the opinion of the chancellor. The facts, as found by the chancellor in this case, are closely parallel to those in the Turner case. In the Reddmann case, the chancellor specifically found that the lower owner had used the tract across which the alleged watercourse passed as a rice farm for 14 or 15 years. He said that this use of the very part of the land claimed to be a watercourse absolutely destroyed the contention that it was a watercourse. As another reason for denying the upland owner relief, the court specifically found that there were two obstructions across the so-called watercourse in the section of land downstream from the lower owner’s property. These factors clearly indicated that the watercourse did not return to a well-defined channel after spreading out into “scatters.”

Appellant also argues that the trial court erred in ordering removal of the dams or levees because its denial of damages to Congleton was based on a finding that the evidence in behalf of appellee was insufficient to show that the money damages sought by him resulted from the obstruction of the slough rather than backwater from L’Anguille River. It is sufficient on this point to state that Congleton and his witnesses testified that Congleton’s land was damaged by the existence of the obstruction and Solomon and his witnesses testified that it was not. The finding that Congleton failed to meet his burden of proof on the recovery of damages prayed for is not necessarily inconsistent with the finding that he was entitled to injunctive relief.

The decree is affirmed.


author: J. Fred Jones, Justice.

text:
    Elizabeth White Sims v. Estate of Henry W. Powell, Deceased
    4710
    432 S.W. 2d 838
    Opinion Delivered October 28, 1968

      W. K. Grubbs Sr. and Samuel W. Barr for appellant.

      Thomas L. Cashion for appellee.
   J. Fred Jones, Justice.

This is an appeal by Elizabeth Sims from a decree of the Chicot County Probate Court denying her petition for widow’s allowance out of the estate of Henry W. Powell, deceased. For brevity and convenience the parties will be referred to by their given names.

Henry and Elizabeth were married in Little Rock in 1912. They lived together as husband and wife until 1926 when they separated. One child, Samuel, was born of this union and after the separation both parties continued to live in Little Rock for a short time where Iienry worked as a brick mason. About two years after tbe separation Elizabeth returned to their former home town of Eudora in Chicot County and later moved to Detroit, Michigan where she married Robert Sims in 1932.

Henry continued his occupation as brick mason in Little Rock and Memphis, Tennessee, and later returned to Eudora where on May 15, 1934, he married Edna Johnson. Two children, Henry, Jr. and Delores were born of this marriage, and Henry and Edna lived together as husband and wife in Eudora until Henry died testate on September 30, 1966. Under the provisions of Henry’s will, he nominated his wife Edna as executrix of his estate to serve without bond, and as to his first wife Elizabeth and his second wife Edna, the will provides as follows:

“I give and bequeath to Elizabeth White Sims, whom I married in 1912, and who is living separate and apart from me, the sum of Five ($5.00) Dollars, to be paid out of my estate after the payment of my debts.
“I give and bequeath to Edna E. Johnson Powell, whom I married in 1933 and who is at present living with me, the use of the home in which we now live and the property upon which it is located (namely Lot 1 Block 1 of East Side Addition to town of Eudora, Arkansas), said use to be for the remainder of her natural life or until she re-marries, whereupon it shall revert to my children H. W. Powell, Jr. and Delores Powell, said children being by her.
“All the rest and residue of my estate, whether real, personal or mixed, I give, bequeath and devise to my son Henry Powell, Jr. and to my daughter Delores Joan Powell, said children being by my second wife Edna E. Powell ...”

The will was admitted to probate and letters testamentary were issued to Edna. Elizabeth filed a petition for widow’s allowance, renouncing her rights under the will and claiming under the statute, as the legal surviving spouse of the decedent.

Prom the evidence offered in support of the petition, the trial court found that Elizabeth had failed to sustain the burden of proof necessary to overcome the presumption of the validity of the decedent’s marriage to Edna and the petition was dismissed. On appeal to this court, Elizabeth relies on the following point for reversal:

“The court’s decision is against the uncontradicted evidence of no divorce and contrary to law.”

We do not agree with appellant. A marriage conducted in legal form is presumed to be valid and the presumption stands until overcome by positive proof. In the 1915 case of Estes v. Merrill, 121 Ark. 361, 181 S.W. 136, speaking of marriage and the burden of proof required to overcome such presumption of validity, this court said:

“So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.”

In Spears v. Spears, 178 Ark. 720, 12 S.W. 2d 875, A. W. Spears and Lesser Lee were married in Florida in 1898. About two years after the marriage, Mr. Spears left Mrs. Speas and moved to Pensacola. He later moved to Arkansas and married Minnie Temple in 1909. After Minnie died in 1911, Spears married Roena Lyles in 1913 and they lived together as husband and wife until his death in 1925.

In an unsuccessful attempt to overcome the presumption of the validity of the two subsequent marriages, Lesser Lee Spears attempted to prove that Spears had never obtained a divorce from her. The facts in the Spears case are so near parallel with the facts in the case at bar, we quote rather extensively from the Spears decision, as follows:

“The appellee knew of Spears’ marriage for several years, but she did not notify the woman who was living with him that she was his wife, and never made any claim upon him, although she knew where he was, but claims that she burned the letters that she had received from Spears. The appellee’s contention, however, is that Spears could not have obtained a lawful divorce except in Jackson or Escambia County, Florida, and that the proof showed that he did not obtain a divorce at either of these counties, and there can be no presumption that he attempted to unlawfully obtain a divorce from her.
* * #
“Appellee testified that, after she and Spears were married in 1898, they lived together in Florida as husband and wife until the year 1900, when Spears went to Pensacola and began the practice of law there; that he practiced law there until the latter part of August or the first of September, 1902, when he left Pensacola and the State of Florida for no apparent reason, and without any notice or intimation to appellee that he intended to leave, and without obtaining a divorce. That during the time he stayed at Pensacola he visited his wife and family at intervals, and frequently contributed to their support. While in Pensacola he stayed with appellee’s brother most of the time. She also testified that she had given Spears no cause for divorce or for deserting her, and had never done any of the things for which a divorce might be granted in Florida; that she had never been summoned in any divorce case brought by Spears; that she had never filed any suit for divorce herself, and that she had at all times been ready to move to the residence of Spears, but that he requested her to wait until he got his business straight and he would send for her.
“The appellee has also proved that no divorce was granted in the county of Jackson or Escambia County, Florida, the only places where it is shown that Spears lived in Florida.
“The proof further shows that Spears went to Memphis and stayed a while, and also to Covington, and that no divorce was granted in either of those counties. The proof also shows that no divorce was granted in Jefferson County, Arkansas, and that no divorce was granted in St. Bernard Parish, Louisiana.
“Appellee contends that this overcomes the presumption that Spears’ second marriages were innocent, because he could only have been absent or away from the places mentioned for a few months, and not long enough to establish a residence in any other State. Hoivever, the proof does not show that Spears did not obtain a divorce in some county in Florida besides the one whose records were searched; it does not show that he did not get a divorce somewhere in Tennessee in some cotmty other than Shelby or Tipton, and the proof does not show that he did not get a divorce in some county in Arkansas.
“While the law requires a residence in a State for a certain length of time, it is not required that the party bringing the suit reside in the county where he brings the suit for this length of time. One might reside in Jefferson, County, Arkansas, a year or more, and then establish a residence in Cleveland County, or some other county in Arkansas, where he could obtain a divorce, and then move his residence back to Pine Bluff. It is not at all impossible that he could do this without the people of Pine Bluff knowing anything about it or recalling it after so long a time. In fact, it appears very much more probable that he did something of this sort than that he would marry a woman in Pine Bluff, live with her as his wife, openly, raise children, and then, when she died, marry another woman publicly in Pine Bluff, Arkansas, and live with her many years, when, if he did not have a divorce, he would, of course, be guilt;/ of a felony.” (Emphasis supplied.)

In the case at bar the appellant knew that the decedent had married Edna Johnson; that they were living together and were raising a family at Eudora in Chicot County, Arkansas, where appellant’s mother lived and where appellant visited. Appellant denies that she ever received any support from the decedent for herself or their child, although the child visited with its father. Appellant not only failed to make any claim on the decedent as her husband during his lifetime following their separation in 1926, she married Mr. Sims in 1932 prior to the marriage of the decedent to Edna, and she testified on this point as follows:

“Q. At the time that you married Robert Sims, was it you understanding that you were still married to Henry Powell?
A. No, I was the understanding that he told me that he was going to get divorced.
Q. He told yon that he was going to get a divorce?
A. Yes.
Q. When did he tell yon that?
A. Well, when we first separated. And, we never talked of it anymore. He told me that he was going to.”

Apparently the appellant placed considerable confidence in the decedent’s having obtained a divorce as he said he would do, because they discussed it no more and she married Mr. Sims with whom she is still living. The appellant knew of the decedent’s second marriage and was bound to have known of the birth of his children by the second marriage, yet she made no claim as his lawful wife until after his death some forty years after their separation when he told her he was going to obtain a divorce. There is no evidence of anything, other than Plenry’s death, that ever caused appellant to believe that Henry had not obtained a divorce as he told her he would do.

Appellant denies that she was ever served with summons or notice in divorce proceedings. On the other hand she proved that a petition for divorce was filed and summons issued and served on two occasions in Pulaski County, but there was no record of a divorce decree having been entered in Pulaski County, Arkansas, Shelby County, Tennessee or Desha County, Arkansas. We also note, as the trial court did, that appellant did not testify that she had not obtained a divorce from the decedent herself before she married Sims.

We conclude that appellant’s proof of her marriage to the decedent, together with her proof that no divorce decree appeared of record in Pulaski or Chicot Counties, Arkansas, or in Shelby County, Tennessee, falls far short of evidence sufficient to overcome the presumption of the validity of the decedent’s subsequent marriage.

As was stated in Lathan v. Lathan, 175 Ark. 1037, 1 S.W. 2d 67:

“[W]e feel justified in again stating the law to be that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife of the former marriage is living at the time, and that this presumption is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or she has not obtained a divorce, and has no information as to whether the other spouse had obtained a divorce, and the testimony of the clerk of the divorce court where the deceased spouse had some time lived, that no divorce had been granted such spouse in such court.”

The decree of the probate court is affirmed.


author: J. Fred Jones, Justice. John A. Fogleman, Justice.

text:
    Wilbur P. Davis, Frank Humphreys v. Carlton Jerry, County Judge; Ray J. Ellen and C. Robert Mason, Election Commissioners
    4705
    432 S.W. 2d 831
    Opinion Delivered October 28, 1968

      Shackleford & Shackleford for appellants.

      Beryl Anthony Jr. for appellees.
   J. Fred Jones, Justice.

The appellants brought a taxpayer’s suit in the Union County Chancery Court to enjoin the county judge and election commissioners from signing a contract for the purchase of voting machines. The injunction was refused by the chancellor and appellants rely on the following points for reversal:

‘ ‘ There was a failure to comply with the county purchasing procedure act.
“ There was a failure to comply with the freedom of information act.”

At the general election in 1966 the people of Union County voted in favor of purchasing voting machines for that county. Several meetings were held where the procedure for carrying out the mandate of the people was discussed by the election commissioners, the county officials and other interested parties, including representatives of the League of Women Voters who had initiated and sponsored the election. Finally on July 15, 1967, the chairman of the county election commission, the county judge and other interested citizens, including Mrs. Cash, a representative of the League of Women Voters, met and discussed the procedure to be followed in purchasing voting machines. The county judge was directed to seek bids and Mrs. Cash requested notice of the meeting when the bids would be opened. It was determined at this meeting that since there were only two eligible voting machine companies qualified to sell voting machines in Arkansas, it would not be necessary to follow the county purchasing procedure act of 1965, Ark. Stat. Ann. §§ 17-1601 through 1613, so it was decided that formal notices would be sent to the two eligible prospective bidders requesting bids which would be opened on June 29, 1967. This procedure was carried out by the county judge under the direction of the county election commission. Both of the eligible companies submitted sealed bids and sent representatives to be present at the opening of the bids on June 29.

On June 29, 1967, at the time and place agreed upon, the bids were opened and read, and at this point there is considerable conflict in the testimony as to what followed. Appellants say that the meeting went into executive session with everyone cleared from the room except the county judge, the election commissioners and the deputy prosecuting attorney, and that after the closed session, “outsiders” were again admitted to the room where it was announced that the election commission had voted unanimously to accept the lowest bid of Shoup Voting Machine Corporation. Appellees contend that after the bids were opened and read at the open meeting, identical questions were asked each voting machine company representative out of hearing of the other, and that when the voting machine company representatives were asked to step out of the room, others also left, without protest or objection, and without being asked to do so. Appellees contend, and so testified, that it was not their intention to exclude anyone from the meeting who desired to stay and that they did not hold a closed executive session to the exclusion of the public in violation of the Freedom of Information Act of 1967, Ark. Stat. Ann. § 12-2801 (Snpp. 1967).

Under the conflict of testimony on this point, we are unable to say that the chancellor’s finding was against the preponderance of the evidence. This disposes of appellants’ second point, but appellants’ first point gives us more difficulty.

The purchase and use of voting machines in Arkansas was authorized by legislative Act 53 of 1963, now Ark. Stat. Ann. 3-1701 through 1733 (Snpp. 1967). Section 3-1703 of this statute reads in part as follows:

“The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County or City in which an affirmative vote is cast under the provisions of this section.”

The County Purchasing Procedure Act (No. 52 of 1st Ex. Sess. 1965) was passed by the legislature two years after the voting machine act, supra. The County Purchasing Procedure Act, Ark. Stat. Ann. §§ 17-1601 through 17-1613 (Supp. 1967), is rather comprehensive in relation to all purchases by county officials with county funds in excess of $1,000.00 and is penal in nature.

Section 17-1601 is as follows:
“From and after the passage and approval of this Act [§§ 17-1601 — 17-1613] it shall be unlawful for any County Official within the several counties of the State of Arkansas, to make any purchases with county funds in excess of $1000.00, unless the hereinafter method of purchasing is followed. Provided, however, this Act shall not apply to any purchases under $1000.00 or purchase of commodities set forth in Section 6 [§17-1606] hereof.”
Section 17-1602 provides as follows:
“(a) ‘Purchasing Official’ shall mean any county official, individual, board or commission, or his or its lawfully designated agent with constitutional authority to contract or make purchases in behalf of the county.
(b) ‘Commodities’ shall mean all supplies, goods, material, equipment, machinery, facilities, personal property, and services, other than personal services, purchased for or on behalf of the county.
(c) ‘Purchase Price’ shall mean the full sale or bid price of any commodity, without any allowance for trade-in.
(d) ‘Purchase’ shall mean and include not only the outright purchase of a commodity but also the acquisition of commodities under rental-purchase agreements or lease-purchase agreements or any other type of agreements whereby the county has an option to buy the commodity and to apply the rental payments on the purchase price thereof.
(e) ‘Formal Bidding’ shall mean the procedure to be followed in the solicitation and receipt of sealed bids, wherein: (1) notice shall be given of the date, time and place of opening bids, and the names or a brief description and the specifications of the commodities for which bids are to be received, by one insertion in a newspaper with a general circulation in the county, not less than ten (10) days nor more than thirty [30] days prior to the date fixed for oijening such bids; (2) the furnishing, not less than ten [10] days in advance of the date fixed for opening the bids, of notices and bid forms to all eligible bidders on the bid list for the class of commodities on which bids are to be received, and the furnishing of notices and bid forms to all others requesting the same; and (3) by posting in a conspicuous place in the County Court House, at least (10) days in advance of the date fixed for opening bids, a copy of the notice of invitation to bid.
(f) ‘Informal Bidder’ shall mean the procedure to be followed in the solicitation and receipt of bids wherein: (1) notice or bid forms shall be furnished to all eligible bidders on the bid list for the particular commodity at least (5) five days prior to the date fixed for opening the bids; and (2) notice of invitation to bid shall be posted in a conspicuous place in the County Court House at least (5) five days prior to the opening of the bids.
(g) ‘ Open Market Purchases ’ shall mean those purchases of commodities by any purchasing official in which competitive bidding is not required.
(h) ‘Trade-in Purchases’ shall mean all purchases where offers must be included with the bids of each bidder for trade-in allowance for used commodities.
(i) ‘Used or Second Hand Equipment or Machinery’ shall mean any equipment or machinery having had at least 500 working hours prior use. Any purchase of used equipment or machinery shall be accompanied by a statement in writing from the vendor that such equipment or machinery has been used a minimum of 500 hours prior to such sale, ana such written statement shall be filed with the county clerk at the time of purchase.”
Section. 17-1603 provides as follows:
“All purchases of commodities made by any county purchasing official with county funds, except those specifically exempted by this act, shall be made as follows:
(a) Formal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,500.00.
(b) Informal bidding shall be required in each instance in which the estimated purchase price shall equal or exceed $1,000.00 but shall be less than $1,-500.00.
(c) ‘Open Market Purchases’ may be made of any commodities where the purchase price thereof is less than $1000.00.
(d) No purchasing official shall parcel or split any item or items of commodities or estimates, with the intent or purpose to change the classificaT tion or to enable the purchase to be made under less restrictive procedure. ’ ’
Sections 17-1607-08-09 provide as follows:
“The County Purchasing Official shall establish and maintain a list of eligible bidders covering all commodities and shall furnish copies of the same to all purchasing officials of the county. Any firm which desires to bid and have its name on the list of prospective bidders shall notify the purchasing official in writing of such desire, setting forth the class and description of commodities on which it desires to bid, and the firm’s qualifications as a responsible bidder. Every effort shall be made by the purchasing official to notify all eligible bidders before purchases are made.
“(a) All bids which require either formal or informal bidding shall be opened in public and read at the time and place specified in the notice.
(b) The awarding of contracts need not be upon the day of the opening of the bids, but may be at a later date to be determined by the purchasing official. In order to assure that the bidder will accept and perform a contract under the terms of his bid the purchasing official may require bids to be accompanied by certified check or surety bond furnished bj^ a surety company authorized to do business in this state, in such a reasonable amount as the purchasing official shall determine.
“(a) No contract shall be awarded or any purchase made until the same has been approved by the County Court, and no contract shall be binding on any county until the County Court shall have issued its order of approval.
(b) The Order of the County Court shall be properly docketed, and all documents and bids pertaining to the solicitation of bids and awarding of contracts under the purchasing procedure of this act shall be filed with the County Clerk, together with the order of the court which shall be filed by said County Clerk.
(c) No claim filed with the county for payment of any commodity, the purchase of which is regulated by this act, shall be paid, or no warrant shall be issued by the county clerk for the payment of same, until the order of the county court approving same shall have been issued and filed with the county clerk.”

It is noted that numerous commodities are exempted from the provisions of the act (§17-1606), but voting* machines are not within the exemption. The proposed contract in this case involved the rental-purchase of sixty voting machines involving expenditure far in excess of $1,500.00, so there is no question that “Formal Bidding” under § 17-1602 (e) and § 17-1603 (a) would apply in this case.

The record before us sheds no light on why the appellees failed to comply with the rather simple and inexpensive procedure of publication of notice under § 17-1602 (e) (1), and we would be forced outside the record in assuming that appellees considered the county purchasing procedure act nonapplicable to the authority vested in the election commissioners by the terms of the voting machine act.

This argument is not raised in the case at bar, so apparently appellees considered the requirement for publication of notice to be wholly and exclusively for the benefit of prospective bidders and to better insure spirited competition between bidders. Such may be the primary purpose of § 17-1602 (e) (1) but such notice would also let everyone who had voted for the purchase of the machines know when the bids would be opened so that they could appear if they desired to do so, and at least hear any discussion that might arise as to the “consideration given for price, quality and adaptability to Arkansas ballot requirements” as provided by Ark. Stat. Ann. § 3-1704, supra.

When the County Purchasing Procedure Act was adopted in 1965, the legislature could not have been unaware of the limited source for supply of voting machines. As was pointed out in Walsh v. Campbell, County Judge, 240 Ark. 1034, 405 S.W. 2d 264, the constitution of the state of Arkansas was even changed in 1962 (Amendment 50) to permit the purchase of the veiy machine here involved. Yet the legislature did not see fit to exempt voting machines from the provisions of the County Purchasing Procedure Act passed in 1965.

Appellees do not contend that voting machines do not come under the provisions of the Purchasing Act, they argue that the Purchasing Act statute was substantially complied with. We are unable to agree that there is substantial compliance when there is no compliance at all. We detect no evidence of fraud or ulterior motive on the part of appellees in their performance of the thankless task thrust upon them by statute in this case, but we conclude that appellees erred in their failure to follow the “Formal Bidding” section of the County Purchasing Procedure Act, Ark. Stat. Ann. § 17-1602 (e) (1), and that the decree of the chancellor should be reversed and this cause remanded with directions to grant appellants’ motions, pending appellees’ compliance with the provisions of the act.

Reversed and remanded.

George Rose Smith, Fogleman, JJ., dissent.

John A. Fogleman, Justice.

I dissent because I feel there has been a substantial compliance with the county purchasing procedure act. See Act 52 of the First Extraordinary Session of 1965. An analysis of this act leads me to the inescapable conclusion that its purpose was to assure competitive bidding in county purchases where the purchase price is $1,000 or more, except for certain commodities which do not include voting machines.

Section 1 makes it unlawful for a county official to make purchases with county funds in excess of $1,-000 unless the method of purchasing set out in the act is followed.

Section 2 of the act is a definition of terms. Among those terms defined are “formal bidding” and “informal bidding.”

Section 3 of the act specifies the instances when formal bidding and informal bidding are required and when “open market purchases” are permitted.

Section 4 relates to specifications with relationship to their effect on competitive bidding and authorizes testing and examination of products of the lowest responsible bidder.

Section 5 requires award of contracts to the lowest responsible bidder, and provides for the rejection of bids, and for certain preferences to residents or firms doing business in the county. This section also requires that a purchasing agent file a written statement of the reason for not accepting any low bid.

Section 6 provides for exceptions to procedures for solicitation of bids.

Section 7 provides for maintenance of a list of eligible bidders and requires an effort by any purchasing official to notify any eligible bidder before purchases are made.

Section 8 requires the opening of bids in public at the time and place specified in the notice and authorizes the requirement of a bond to assure performance by a bidder.

Section 9 provides that no contract may be binding without the approval of the county court and the filing of all documents and bids pertaining to solicitation of bids and awarding of contracts.

Section 10 is a saving clause for remedy for breach of contract by a bidder and allows some latitude to purchasing officials with respect to trade-ins.

Section 11 authorizes the purchase of fuels and certain accessories for motor vehicles by counties through the State Purchasing Agent.

Section 12 authorizes the purchasing official to call upon the prosecuting; attorney or to employ counsel for advice and aid in legal matters in connection with purchases.

Section 13 makes an intentional violation of the act punishable by fine and removal from office.

Section 14 is a severability clause.

Section 15 is a general repealing clause.

In this case, the purchasing officials have not deliberately violated the statute. To the contrary, they have substantially complied with it. The County Judge and County Board of Election Commissioners consulted with the Deputy Prosecuting Attorney and arrived at the procedure to be followed after that consultation. The trial court specifically found that bids were received from all voting machine suppliers authorized to do business in the State of Arkansas. The voting machine law restricts purchases to those machines approved by the State Board of Election Commissioners. Ark. Stat. Ann. § 3-1706 (Supp. 1967). Both the trial court and this court can take judicial notice of the fact that only two such machines have been approved by the State Board of Election Commissioners. The suppliers of these machines were notified to submit their bids for opening on a specified date, place and hour.

Under this rather unusual factual situation, I would consider substance above form and say that the contract was valid and in substantial compliance with the act, having accomplished the fundamental purposes thereof. Invalidation of the contract of purchase in this case puts form above substance and makes strict compliance with the act necessary in every circumstance. In my opinion, this makes the application of the statute ritualistic rather than realistic and makes a procedure mandatory in circumstances where it serves no useful purpose or performs no real function.

The purpose of all such statutes is to assure economy in public administration and honesty, fidelity and good morality in public officials and to protect the public against favoritism, improvidence, extravagance, corruption, imposition, fraud, collusion and extortion by promoting actual, honest and effectual competition. 2 Dillon, Municipal Corporations, 1199 § 802; 10 McQuillin, Municipal Corporations, 321 § 29.29; Dement v. Rokker, 126 Ill. 174, 19 N.E. 33 (1888); Gale v. City of St. Paul, 255 Minn. 108, 96 N.W. 2d 377 (1959); State v. Toole, 26 Mont. 22, 66 P. 496, 91 Am. St. R. 386 (1901); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N.W. 603 (1904); Reed v. Rockliffe-Gibson Const. Co., 25 Okla. 633, 107 P. 168, 138 Am. St. R. 937 (1910); Silsby Mfg. Co. v. Allentown, 153 Pa. 319 (1893); Fonder v. City of South Sioux Falls, 76 S.D. 31, 71 N.W. 2d 618, 53 ALR 2d 493 (1955); Cyr v. White, 83 Cal. App. 2d 22, 187 P. 2d 834 (1947); Beall v. Board of Supervisors, 191 Miss. 470, 3 So. 2d 839 (1941); Miller v. Milford, 224 Iowa 753, 276 N.W. 826,114 ALR 1423 (1937); Fones Bros. Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L.R.A. 353. They also afford businessmen and tax payers of a county a fair opportunity to participate in the benefits flowing from such contracts. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).

There are well recognized exceptions to the rule that contracts made without advertisement for bids under such statutes are void. One of these exceptions is the case where such advertisement would not result in competitive bidding. Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 291 P. 839, 71 ALR 161; Harlem Gas Light Co. v. Mayor, 33 N.Y. 309 (1865); Hurley Water Co. v. Town of Vaughn, 115 Wis. 470, 91 N.W. 971 (1902); Murphy v. Paull, 192 Wis. 93, 212 N.W. 402 (1927); Hodgemam v. City of San Diego, 53 Cal. App. 2d 610, 128 P. 2d 412 (1942); 2 Dillon, Municipal Corporations, 1189 § 802. This exception has been applied to the purchase of voting machines where the same two manufacturers were involved, as they are involved in this case. Kingsley v. City & County of Denver, 126 Colo. 194, 247 P. 2d 805 (1952).

Since the only purpose of the statutes is to assure competitive bidding, when this effect is given to them, nothing further is needed. 2 Dillon, Municipal Corporations, 1200 § 802; Harlem Gas Light Co. v. Mayor, supra.

It has been held that such statutes do not apply where the item to be bought is such that competitive bidding is impractical. Schwartz & Nagel Tires v. Board of Chosen Freeholders, 6 N.J. Super. 79, 69 A. 2d 885 (1949); Whelan v. New Jersey Power & Light Co., 45 N.J. 237, 212 A. 2d 136 (1965). These statutes have been said to have no application unless the contract is naturally competitive. Layne-Western Co. v. Buchanan County, 85 F. 2d 343 (1936). In the Whelan case, the court said that such statutes must be read in the light of the reason for their enactment, lest they be applied where they were not intended to operate and deny authority to deal with problems in a sensible, practical way.

Actually, many of the cases in which competitive bidding or advertisements for bids were held unnecessary, the article or service being contracted for was a patented article or otherwise the subject of a monopoly, so that there could only be one possible supplier. One theory advanced for the exception to the rule is that it would be a useless practice to submit a contract to competitive bidding when it is general knowledge that there are no competing concerns capable of bidding or performing. See Annot., 128 ALE 168. It cannot be said that any offer to contract does not limit itself to those who can perform the contract. Anderson v. Parsley, 37 S.W. 2d 358 (Tex. CA 1931). The same reasoning and rationale should be applied in a case where there are only two possible suppliers and both are notified and both bid.

The implication of these competitive bidding statutes is that there will be equal opportunity to and freedom in all who might be inclined to bid. State v. Toole, 26 Mont. 22, 66 P. 496, 91 Am. St. R. 386 (1901).

Under an unusual circumstance such as this, substantial compliance is all that is required. Anderson v. Parsley, supra. In a case in which a county entered into a contract for rental of voting machines on a bid on terms different from the advertisement for bids, it was held that there was a substantial compliance with the acts requiring competitive bidding. Hayden v. Dallas County, 143 S.W. 2d 990 (Tex. CA 1940).

The language of the Pennsylvania court sustaining a contract for a patented article, entered into without advertisements for bids in Silsby Mfg. Co. v. Allentown, 153 Pa. 319, 324, is appropriate here:

“* # * The law does not insist on what is impossible, or absolutely useless. Advertising for proposals in this case would have been worse than useless, since it could have resulted in nothing but dangerous delay and an idle expenditure of money.”

I feel that we should say here just what the Florida court said in Wester v. Belote, 103 Fla. 976, 138 So. 721:

“And so long as the actual proposition accepted by the board was one which afforded a reasonable basis upon which all desiring to do so could have bid, or did bid, it cannot be said that the resultant award of a contract was so far absolutely void, as to be attacked and enjoined as a matter of course after it was made, at the suit of a citizen and taxpayer, who undertakes to show no resulting damage to himself, except such as may be said to constructively result to taxpayers generally from any substantive violation of the statutes requiring contracts to be let on competitive bids, when such contracts have been entered into by the board in evasion or fraud of the statutory limitations.”

I would affirm the decree of the chancery court.

I am authorized to state that George Rose Smith, J., joins in this dissent.

      The court went on to hold that an injunction would not be granted where there was no fraud, corruption or unfair dealing and there was an honest effort to follow the statute.


author: Conley Byrd, Justice.

text:
    Wells Riggs v. Tony Bert, et al
    4643
    432 S.W. 2d 852
    Opinion Delivered October 28, 1968

      Garner & Parker for appellant.

      Wayland Parker for appellee.
   Conley Byrd, Justice.

This action was instituted in the county court by appellant Wells Riggs pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1957), to have a private road established across the land of appellees Tony Bert and Avis Bert. The county court followed the procedure outlined in the statute, found the road to be necessary and assessed damages at $400. The Berts appealed to the circuit court where by agreement the only issues submitted to the jury were the necesstiy for the road and the amount of the damages. From a judgment on a jury verdict in favor of the Berts, Mr. Riggs appeals alleging that the trial court erred in permitting testimony concerning the total acreage owned by him; allowing evidence of an existing creek crossing on the Bert land at a point unrelated and unconnected with the lands in question; and that the verdict of the jury is not supported by substantial evidence.

The record shows that Riggs owns the EV2 of Lot 2 of the NWVé of Sec. 5, T 7, N-R, 30W, and that the Berts own the property to the west and south of the Riggs property. Big Vache Grasse Creek crosses Riggs’ western boundary in three places and his southern boundary in such manner as to leave a total of 18 acres, in two different tracts, west of the Big Vache Grasse Creek and bounded by property owned by the Berts.

Mr. Riggs testified that the best use of his land is for grazing cattle and that the' nature of the creek is such that when it floods, any cows on his property on the west side of the creek are trapped so that he cannot remove them from the flood hazards. He and his witnesses, including two of the viewers appointed by the county court, all testified that it was necessary for Riggs to have access across the Bert land to reach his two tracts; that the access across the Bert land would not materially affect the Bert property; and that the damages would be only $400.

Melvin Bell, an engineer, made an inspection of the creek and testified that it would cost from $8,000 to $14,000 to bridge tbe creek, depending on whether he used a low water bridge or a wooden bridge across the creek. He pointed ont that a low water bridge, of course, would not permit crossing during times of flood waters.

Witnesses called by the Berts, local residents of the area, pointed to a creek crossing on Mr. Bert’s land and testified that Riggs could make a low water crossing on his land at a cost of $150 to $200 by using a bulldozer to cut down the bank and filling the bottom with rock. Both Mr. Bert and his witness, Jack Neal, testified that the proposed road would damage his land in the amount of $15,000.

There is testimony by way of rebuttal that the crossing on the Bert property is a “natural crossing” because of a shale formation in the area.

On the issue of the necessity of access across the Bert property, the trial court instructed the jury in accordance with Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906), and from the record we are unable to say that there is no substantial evidence to support the jury finding that the access across the Bert land was not necessary.

The record shows that Mr. Riggs owns additional lands to the east of the property here involved. Testimony relative thereto may be irrelevant and immaterial to the issue of the accessibility of the 18 acres, but we are unable to find any prejudice with respect thereto.

The testimony relative to Bert’s crossing on the same creek was permitted by the trial court to show that a similar type crossing could be placed on the Riggs’ land at a reasonable cost. As we read the record, one of the issues in the case was whether appellant could cross the creek for purposes of using his land at a reasonable cost. We hold that such testimony was admissible for that purpose.

Affirmed.


text:
    Myrtle Thompson v. AAA Lumber Company
    4702
    432 S.W. 2d 873
    Opinion Delivered October 28, 1968

      Robinson & Booth for appellant.

      Batchelor & Batchelor for appellee.
   Conley Byrd, Justice.

Appellant Myrtle Thompson appeals from a judgment entered upon a running account in favor of appellee AAA Lumber Company. For reversal, appellant alleges that she was entitled to a directed verdict, that the trial court commented on the evidence and that the cumulative effect of the court’s erroneous rulings unduly prejudiced her in the presentation of her defense.

The record shows that Miss Thompson had been a customer of the lumber company for a number of years. She owned some rent houses and took care of others owned by her mother’s estate. From time to time Miss Thompson would take the tenants by and authorize the tenant to make charges to her account for repairs.

Mr. J. E. Hannah, an employee of the lumber company, testified that its records were kept in the ordinary course of business and under his supervision. According to him, a credit sale would be entered on a charge ticket. Subsequently, within two or three days, the charge, showing the ticket number thereof, would be posted to the ledger sheet. When the customer was billed a copy of the charge ticket would be mailed along with a ledger sheet showing the balance due. Thereafter the customer would be billed from the ledger sheet.

The ledger sheet shows the balance brought forward as of January 28, 1964, was $294.57. The balance at the time of the trial was $331.34. Except for a paint store item, which will be discussed latex, all charges and credits were carried as above explained. Mr. Hannah admits that some of the items charged on the ledger sheet were received by Miss Thompson’s adopted brother and others. When asked what made him decide to charge such tickets to Miss Thompson, the record shows:

“A. I can’t truthfully answer that because that is not my writing and I didn’t wait on the customer when she came in. Miss Thompson in the nature of her business, she owns several pieces of property, and sometimes she would come in with a person and say that she was wanting to charge it.
Mr. Booth:
I object to that.
The Court:
He may answer. You asked him and I think that is the very heart of this lawsuit.
A. (From the witness) and sometimes she would come in and say that one of her tenants was coming in and sometimes she would come down with them as she did with her brother, Jimmy Thompson, on occasions, and his wife, at that time. She would come in with them when they would make purchases. To my knowledge she didn’t sign any tickets herself, I don’t know whether this was the occasion of the time she came or not. I don’t know and I may not have been in the office at the time of that purchase. I did not make the ticket. ’ ’

Miss Thompson testified that she had a few rental houses and often had to do light repairs on them, that she would usually go with the person doing the work to the lumber company to get the material. On a few jobs she had her brother, Jimmy Thompson, help her with some repairs while he was staying at her house.

Miss Thompson acknowledges that she made payments from time to time, but does not remember the dates.

Under this testimony we hold that the trial court properly refused to direct a verdict.

We do not reach appellant’s contention about the court’s alleged ¡error in commenting on the evidence. The matter was not raised in the trial court either by objection or a motion for mistrial. We have consistently held that we will not consider an error raised for the first time on appeal.

The appellant complains of numerous errors of the trial court, which we list as follows:

(a) The trial court erred in sustaining the lumber company’s objections to Miss Thompson’s inquiry of Mr. Hannah as to Jimmy Thompson’s reputation for truth and veracity. We find this point without merit. In the first place, it may have become harmless as a result of the other testimony introduced by Miss Thompson, and in the second place, no proffer was made as to what the witness ’ answer would have been.

(b) Appellant claims that Mr. Hannah’s answer, as set out above, is unresponsive to his question as to “what made you decide to charge Myrtle Thompson for this purchase.” We find no merit in the argument.

(c) Appellant urges that the trial court erred in permitting Mr. Hannah to infer agency by permitting him to show that Miss Thompson called in and terminated that agency. This is based on Mr. Hannah’s testimony that he allowed no charges to Miss Thompson’s account by her brother after Miss Thompson told them to make no further charges. We consider this without merit since the witness had already explained how Miss Thompson had authorized the charges to be made to her account.

(d) We can find no merit in appellant’s contention that the trial court erred in permitting counsel on cross-examination to inquire whether she had paid some of her brother’s bills. This is a matter over which trial courts have some discretion, and we can here find no abuse.

(e) Appellant complains of an item of $98.31 which the lumber company admits accrued at a paint store it operated at a separate location. A separate ledger was kept for the paint store and when the paint store was closed down its balances were transferred to the lumber company ledgers.

As pointed ont above, the lumber company ledgers were kept by posting charge tickets to the ledger sheet within a day or two following each transaction. All posting of charge tickets at the lumber company was done by a machine or typewriter. The transfer of the paint store balance was put on the ledger sheet in handwriting. Obviously, the latter entry was not made in the regular course of business. It was not transferred from charge tickets as was the custom, but was a balance or total lifted from the paint store ledger and merely added to the lumber company ledger. Nor was the entry made within a reasonable time after the purchases as required by Ark. Stat. Ann. § 28-928 (Repl. 1962). Consequently, it does not qualify as a business record.

Therefore, the $331.34 judgment entered by the trial court is reduced by $98.31 and the balance thereof in the amount of $233.03, plus interest since the date of judgment, is affirmed. Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S.W. 2d 41 (1944).

Modified and affirmed.


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

text:
    Winthrop Rockefeller et al v. Joe Purcell et al
    4834
    434 S.W. 2d 65
    Opinion Delivered October 30, 1968
    [Rehearing denied December 9, 1968.]

      Wright, Lindsey & Jennings (By Robert D. Gabe) for appellants.

      John D. Thweatt and Jerry J. Screeton and James M. Thweatt & Hubert E. Graves for appellee (Farris).

      Felver A. Rowell for appellee.
   PER CURIAM.

This case is a sequel to Ellis v. Rockefeller, 215 Ark. 53 (Sept. 3, 1968). We treat the petition herein as one for declaratory judgment. At the trial level, petitioners (appellants) produced evidence tending to show that the State Board of Election Commissioners appointed to the County Boards of Election Commissioners in Prairie, Faulkner, and Conway Counties, men who have lately been active and loyal Democrats on the county level. At the close of petitioners’ evidence the respondents moved for, and were granted, a dismissal on the ground that the evidence did not show that the appointees could not be representative of the majority (Republican) party. The motion was granted and petitioners appealed.

If the appointees are presently loyal Democrats on the county level, then their appointment to the County Board of Election Commissioners as the third member would not comport with the expressed spirit of our holding in Ellis v. Rockefeller. There we stated in effect that, although the appointed member need not be a Republican, he should be one that would represent that party in the selection of judges and clerks, a person who would act on behalf of, and work with, the majority (Republican) party in selecting election officials.

Petitioners having made a prima facie case of ineligibility of the appointees, the trial court should have denied respondents’ motion to dismiss and proceeded to take proof to ascertain whether the appointees are still loyal members of the Democrat Party on the county level.

Reversed and remanded.

Harris, J., concurs.

Fogleman and Byrd, JJ., dissent; Justice Fogleman’s written dissent to be filed later,

Carleton Harris, Chief Justice. I am still of the view set out in my dissent in Ellis, et al v. Rockefeller, et al, 245 Ark. 53, i.e., that the third member of the several county boards of election commissioners should be one who is supporting the majority party, whatever his party status. Since the evidence in Case No. 5-4834 clearly indicates that the third party members named are not supporters of the majority party, I agree that this case should be reversed.

As far as Case No. 5-4835 is concerned, having already expressed myself to the effect that the majority party was entitled to two representatives on the county election boards (the county Republican chairman and the third member, a supporter), this enabling them to choose two judges and one clerk in each voting precinct, it necessarily follows that I would certainly agree that the Republican members of the various county boards of election commissioners are entitled, under the circumstances mentioned in the majority opinion, to name one judge and clerk.

I therefore concur.

John A. Fogleman, Justice.

Generally I agree with the views stated by Mr. Justice Byrd in his dissenting opinion, but I feel that there are other compelling reasons why action of (-he trial court should be affirmed.

The pleadings in this case indicate that the petitioners and appellants are three members of the State Board of Election Commissioners who brought the action in that capacity and as a class on behalf of the Republican party in Arkansas and three persons who claim title to the office of election commissioner in three counties in the state. The petition filed in the lower court was for mandamus against the remaining six members of the State Board of Election Commissioners and the three persons who hold office as election commissioners by appointment of the State Board in the three counties in question. The allegations of the petition clearly state that the individual election commissioners in these counties were named by a majority of the State Board of Election Commissioners over the objection of the petitioning members, who proposed the individuals who are among the petitioners and appellants. It is further alleged that the Chairman of the State Board ruled that the person nominated was not qualified to serve and that the person nominated by the petitioning minority of the State Board of Election Commissioners had been elected. This ruling by the Chairman was appealed and overruled by a majority of the full board. The allegations pf the petition with respect to the particular respondent county election commissioners have to do with their previous activities indicating membership in, or support of, the Democratic party as a basis for the contention that they could not in any circumstances represent the Republican party in the State of Arkansas or in their respective counties. The allegation is made that the action of the State Board of Election Commissioners by its majority is void. It is further alleged that the only persons qualified to serve as third members of these respective County Boards of Election Commissioners are the petitioners nominated by the minority of the election 'commission.

The writ sought would command the Secretary of the State Board of Election Commissioners to notify the petitioners nominated by the minority of the commission of their election to the office of third member of the Board of Election Commissioners in their respective counties and to receive and file their oaths of office and do all further things necessary to insure that they be permitted to serve as third members of their respective boards of election commissioners.

It was clearly held, and properly so, in Ellis v. Rockefeller, 245 Ark. 53, 431 S.W. 2d 848, that the exercise of discretion in appointing the third member of each county board of election commissioners could not be controlled by mandamus. Inapplicability of man-damns to control discretionary acts of boards and commissions is not a recent development, but is a general rule of law and has been stated and applied in many cases. See, e.g., State v. Marianna, 183 Ark. 927, 39 S.W. 2d 301; Refunding Board of Ark. v. National Refining Co., 191 Ark. 1080, 89 S.W. 2d 917; Better-Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W. 2d 10; Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S.W. 454; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002. Mandamus will not lie to correct an erroneous decision already made. Dotson v. Ritchie, 211 Ark. 789, 202 S.W. 2d 603; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548.

This court has spoken positively on the proposition of controlling the discretion of a state board in language that cannot be misunderstood. For instance, in Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S.W. 2d 917, this court said:

“The board is required, in the discharge of its duties, not only to weigh and determine facts, but to expound the various provisions of the law under which it operates, and the board’s judgment in these respects is not subject to control by mandamus or injunction. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 47 L. Ed. 1074; Ness v. Fisher, 223 U.S. 683, 32 S. Ct. 356, 56 L. Ed. 610; Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S. Ct. 595, 48 L. Ed. 894.”

The extent to which review of an erroneous decision within the discretion of a board is denied is illustrated in Democrat Printing & Lithographing Co. v. Parker, 192 Ark. 989, 96 S.W. 2d 16, in the following language:

# Discretion as used in respect to executive state officials means not only discretion on questions of fact, but on mixed questions of law and fact. Whether such official decides the question right or wrong is immaterial. Having the power to decide at all carries with it the duty to decide as he perceives the law and the facts to be, and the courts have no power to review his determination by mandamus. We have heretofore, in effect, so decided. See Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88. The conclusion reached in the Pitcoch case, supra, finds support in Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 47 L. Ed. 1074. See, also, Branaman v. Harris (C.C.) 189 F. 461.”

In order to command the Secretary of the State Board of Election Commissioners to perform the acts petitioners seek to require would certainly require a review of the discretionary acts of the State Board of Election Commissioners and the denial of this relief by the circuit judge, on motion, was certainly proper and appropriate.

Petitioners also seek declaratory relief under Ark. Stat. Ann. § 34-2501 (Repl. 1962). A more obvious attempt to obtain an advisory opinion from the courts by this action could hardly be imagined. It is not the purpose of declaratory judgment acts to authorize the rendition of advisory opinions. This court has clearly stated that in order to be entitled to declaratory relief, one must have a legally protectable interest in the controversy and that the issue involved must be ripe for judicial determination. Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97.

The declaratory judgment act does not create any cause of action. It has also been held that it is intended to supplement rather than supersede ordinary causes of action. City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W. 2d 333. The act does not attempt to enlarge or alter the jurisdiction of any court. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278; Catlett v. Republican Party, 242 Ark. 283, 413 S.W. 2d 651. Furthermore, a “justiciable controversy” must be a controversy as to a subject matter over which the court has jurisdiction. See Cowan v. Cowan, 254 S.W. 2d 862 (Tex. 1952).

The declaratory judgment act is merely procedural. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617; Shelly Oil Co. v. Phillips, 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194. No court takes jurisdiction under this act, the subject matter of which it would not have jurisdiction of in a remedial action. The act merely enables the court to take jurisdiction at a point earlier in time than it would do under ordinary remedial rules and procedures. See In Re State, 264 NW. 633 (Wis. 1936).

The declaratory relief sought in this action is a finding that the three respondent election commissioners are ineligible for lack of the qualifications to hold the position of third member of their respective county boards, and that the three petitioning nominees be declared to have been elected. The basis of the alleged ineligibility is their alleged inability to represent the Republican party.

The position of county election commissioner is a public office. Warren v. McRae, 165 Ark. 436, 264 S.W. 940. Neither of the petitioners has any legally protectable interest in the office which gives them the right to declaratory relief. In order to have been entitled to declaratory relief, it would be necessary that one of the petitioners have a legal right to the office in question. It is absurd to say that persons nominated for the office, but not elected by the State Board of Election Commissioners, have any legal protectable interest in the office. The contention that the nominees of a political party had to be accepted by the State Board of Election Commissioners as elected was specifically rejected in Ellis v. Rockefeller, 245 Ark. 53, 431 S.W. 2d 848. One who received the second largest number of votes does not become entitled to an office when it is shown that the winner was ineligible. Clark v. Porter, 223 Ark. 682, 268 S.W. 2d 383.

The only ones having right to question the title of members of a county board of election commissioners are the prosecuting attorney and the party entitled thereto. Ark. Stat. Ann. §§ 34-2201 — 04 (Repl. 1962). Even in the absence of statute, the prosecuting attorney can bring proceedings to oust ineligible persons from office. State v. Jones, 194 Ark. 445, 108 S.W. 2d 901. This court has clearly held that any such action may be brought either by the prosecuting attorney or the person entitled to the office. State v. Sams, 81 Ark. 39, 98 S.W. 955; State v. Jones, supra; Barnett v. McCray, 169 Ark. 833, 277 S.W. 45.

For the purposes of this proceeding, the county election commissioners are certainly county officers. Smith v. State, 211 Ark. 112, 199 S.W. 2d 578.

In such a proceeding, it is clear that before one can question the title to an office, he has the burden of proving that he himself is entitled thereto. Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5.

An action to contest a person’s eligibility to hold an office is properly brought under Ark. Stat. Ann. §§ 34-2201 — 04. Jessup v. Hancock, 238 Ark. 866, 385 SW. 2d 24.

Courts should refuse to render a declaratory judgment when it will be only advisory in character or fruitless or the judgment would not afford specific relief to a litigant. Cook v. Sikes, 210 Ga. 722, 82 S.E. 2d 641 (1954). The parties seeking to maintain the action must have the capacity to sue and a right which is justiciable. Cook v. Sikes, supra.

The declaratory judgment act has been held to confer no right on litigants, taxpayers, citizens or voters of a party to bring a suit to contest the qualifications of a person to hold office. Friley v. Becker, 300 Ky. 749, 190 S. W. 2d 355 (1945). An unsuccessful nominee for public office, claiming that he was unopposed because his successful opponent was illegally nominated, cannot be issued a certificate of election, therefore he is not entitled to relief under the declaratory judgment act because he has no legal protectable interest at stake and the judgment would not constitute specific relief to either party. State v. Thatch, 359 Mo. 122, 221 S.W. 2d 172 (1949). A defeated candidate does not have a justiciable interest sufficient to maintain a judgment declaring the successful candidate ineligible for office. Kamas v. Stepan, 197 S.W. 2d 193 (Tex. Civ. App. 1946).

A determination of the question of title to public office in an action for declaratory judgment is binding only on the parties to that action and no one else. Kilroy v. Connor, 324 Mass. 238, 85 N.E. 2d 441 (1949); Manlove v. Johnson, 198 Wash. 280, 88 P. 2d 397 (1939). A declaratory judgment that one elected to office is ineligible will not terminate the controversy. Bloome v. Juergensmeyer, 344 Ill. App. 625, 101 N.E. 2d 851 (1951).

It has even been held that the members of a board have no standing in a declaratory judgment proceeding, either as citizens and taxpayers or in their official capacity, to question the validity of the appointment of another member who has assumed office. Marshall v. Hill, 47 Del. 478, 93 Atl. 2d 524 (1952). See, also, Manlove v. Johnson, supra.

Let us suppose, for instance, the Pulaski Circuit Court ultimately finds that the members of the respective county boards, whose eligibility is questioned, are not qualified to hold the office. What will the court do about it? It cannot, at the suit of petitioners, oust the present holders of the office and a declaratory judgment ■would not be binding upon those who are not parties to this action, or in a proper action, to oust them.

Clearly, the circuit judge properly dismissed the declaratory judgment proceeding because no petitioner had a legally protectable interest to give him standing to seek the relief.

There is a further reason why the trial court’s action was proper. In order for this action to have been an appropriate one for declaratory judgment, the controversy must have been of a character presenting a real and substantial controversy admitting of specific relief through a decree of a conclusive character directing, and not suggesting, what the parties may or may not do. Smith v. American Asiatic Underwriters, Federal, Inc., 127 F. 2d 754, adhered to, 134 F. 2d 233 (9th Cir. 1942); State v. Thatch, 359 Mo. 122, 221 SM. 2d 172 (1949); Chas. L. Harney, Inc. v. Contractors’ State License Board, 238 P. 2d 637 (Cal. App. 1951). The Pulaski Circuit Court cannot enter any such judgment.

I cannot help but believe that the result in this case is due to the inordinate speed with which this case was submitted, briefed, argued and decided. It was first filed on Friday, 16 days after the date of the circuit court judgment. The briefs were sketchy and not of the standard that would ordinarily be expected from the able counsel representing the respective parties. Oral argument was had on Monday afternoon, after the members of the court had had no more than two hours for reading the briefs of appellees. These briefs had to be prepared by the respective attorneys for appellees between the time they reached their offices after the hearing of a motion to advance in this court on Friday afternoon and 10 am. Monday. In oral argument, each side was allowed only 30 minutes. Since the parties were from different counties and represented different litigants, the time was scarcely adequate for informative argument. I cannot help but believe that the result would have been materially different if tbe cause could have been adequately briefed, fully argued and more deliberately considered. It was conceded by appellants’ counsel in oral argument that the decision of this case could not possibly affect the conduct of the coming general election in any of the three counties involved unless this court declared that the nominees receiving the smaller number of votes in the State Board of Election Commissioners were declared to have been entitled to the office. He frankly admitted that he had no authority whatever for any such action by this court. I dare say there is none. There is no such implication in the majority’s per curiam opinion. Consequently, even if the Pulaski Circuit Court moves with all possible dispatch, and, even if the Pulaski Circuit Court’s judgment can have the effect of ousting the present incumbents, it would be impossible for the State Board of Election Commissioners to meet, name successors and have them commissioned and qualified in time to act in matters pertaining to this election. It is even possible, under such circumstances, that a stalemate would result in the three boards of election commissioners involved. Thus, no really useful purpose has been served by the haste in the handling and decision of this appeal.

I would affirm the judgment of the circuit court.

Conley Byrd, Justice.

I dissent to the majority opinion and for reasons state:

(1) Initiated Act No. 3, 1948, for the purpose of the Act, describes the party receiving the greatest number of votes for governor as the majority party and the party receiving the second highest vote for governor as the minority party.

(2) Section 2 of the Initiated Act as amended provides for a State Board of Election Commissioners to be comprised of the Governor, Lieutenant Governor, Attorney General, Secretary of State, State Auditor, State Treasurer, Commissioner of State Lands, the State Chairman of the majority party and the State Chairman of the minority party. It also provides that the County Chairman of the majority party and the County Chairman of the minority party shall be each an ex officio member of the County Election Board. It then provides that the State Board of Election Commissioners shall appoint a third member of the County Board of Election Commissioners and that this third member, together with the two County Chairmen, shall constitute the entire membership of the County Board of Election Commissioners for each of the several counties in Arkansas.

(3) Section 4 (Ark. Stat. Ann. § 3-609 [ Supp. 1967]), as to qualifications of the Commissioners, provides :

‘ ‘ The qualifications of all persons on the State Board of Election Commissioners, County Board of Election Commissioners, precinct judges and clerks shall be the same, to wit:
“They shall be qualified electors of the State, County and precinct in which they reside or in which they keep their political residence. They shall be discreet persons, able to read and write the English language and shall not have been convicted of any infamous crime and no member of a County Board of Election Commissioners shall be a candidate for any office to be filled at any general election while serving on said County Board.”

(4) Section 3 of the Initiated Act of 1948 as amended (Ark. Stat. Ann. § 3-608 [Supp. 1967]), then sets forth the duties of the County Board of Election Commissioners as follows:

“It shall be the duty of the County Board of Election Commissioners, not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further, that if there are no registered or known members of the minority party in any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts. The County Board of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff’s office and in the County Clerk’s office of each County their respective list of appointees as judges and clerks of elections.
“In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct, as authorized hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.”

(5) Section 5 of the Initiated Act (Ark. Stat. Ann. § 3-610 [Repl. 1956]), leaves the selection of the County Chairmen to the parties, i.e., the County Chairmen may be selected by the township committeemen of the respective parties or appointed by the State Commission outright or through an appeal by a contestant.

(6) At a hurried oral argument, on short notice and with scant briefs, counsel for the appellants stated that he was applying for a writ of mandamus against the State Election Board with respect to the third member of the Election Commission of Prairie, Faulkner and Conway counties. He conceded that the persons selected complied with the qualifications set forth in Section 4 of the Initiated Act, supra, and that no testimony was introduced in the trial court that the persons selected could not work with the Republican Chairman. In asking that we reverse and remand the case to the State Board of Election Commissioners, with directions to name the three persons nominated by the State Chairman of the majority party to serve as the third members of the County Election Boards, counsel conceded that he had no law to support such action, but suggested that this court should invent such law.

In Ellis v. Rockefeller, 245 Ark. 53 (September 3, 1968), we held that the appointment of the third member was within the discretion of the State Election Board and that such member was not required to be a member of the majority party nor a nominee of that party. This, for the obvious reason that if the state arm of the majority party can appoint the County Chairmen and also the third member, there is no practical reason for having a third member.

As I view the action of the majority, they are either ignoring the record before us or in effect modifying Ellis v. Rockefeller without saying so. The third member of the County Board of Election Commissioners is either to be an active member or else there is little reason to take the trouble to have the State Constitutional Officers and the two party Chairmen to meet together for the purpose of appointing him. The statute did not contemplate such a useless gesture.

The Initiated Act clearly places the appointment of the third member with the State Election Board. I cannot envision a group of individuals better qualified than our Constitutional Officers and the Chairmen of the Republican and Democratic parties to select a third member of the County Election Commission for the purposes of insuring fair elections in this state.

The constitution does not give to this court jurisdiction to legislate qualifications for the position of the third member of the Election Commission in addition to those prescribed in the Initiated Act, nor does the Initiated Act permit this court a second guess as to who should serve as such member.

For these reasons, I respectfully dissent.