author: Conley Byrd, Justice.

text:
    Arthur B. SAUNDERS et al v. CITY of LITTLE ROCK
    74-118
    515 S.W. 2d 633
    Opinion delivered November 4, 1974
    [Rehearing denied December 9, 1974.]

      Matthews, Purtle, Osterloh & Weber, for appellants.

      Joseph C. Kemp, for appellee.
   Conley Byrd, Justice.

This case involves the validity of the annexation of approximately 55 square miles of contiguous lands to the City of Little Rock, pursuant to the provisions of Acts of Arkansas 1971, No. 298 [Ark. Stat. Ann. §§ 19-307.1, 19-307.2, 19-307.3 and 19-307.4 (Supp. 1973)]. The annexation was approved by the voters of the City of Little Rock at a special election by a vote of 10,651 FOR and 6,-919 AGAINST. The appellants Arthur B. Saunders, et al, property owners in the area, applied to the trial court pursuant to Section 3 of Act 298, supra, to have the annexation declared illegal and void because the 55 square miles contained lands used exclusively for agricultural purposes contrary to the proviso contained in Ark. Stat. Ann. § 19-307.1. The trial court entered a written opinion in which he made a specific finding as follows:

“There is included within the area proposed for annexation several plots of acreage in size up to 250 acres or more, many of which, part or all of which, are currently devoted to agricultural or horticultural uses. This fact has been conceded by the City. ...”

Notwithstanding the above clear cut finding the trial court ruled that proper and efficient land use planning required the lands to be annexed to the City. The City of Little Rock to sustain the annexation action of the trial court places great emphasis upon proper and efficient “land use planning” and makes the following argument:

“. . . Appellee contends that the prohibition against annexing lands being used for agricultural or horticultural purposes is not absolute, but that the Legislature intended such prohibition only when such land did not qualify for annexation under the language employed in any one of the sentences of the first paragraph of said Section 19-307.1.”

The statute on which the parties rely for their respective positions provides:

“Any municipality may by vote of two-thirds of the total number of members making up its governing body adopt an ordinance to annex lands contiguous to said municipality provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be brought on the market and sold as urban property when they reach a value corresponding with the views of the owners; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal purposes.
Provided, however, that contiguous lands shall not be annexed when they are either; (1) used only for purposes of agriculture or horticulture; (2) are vacant lands and do not derive special value from their adaptability for municipal uses; or (3) are lands upon which a new community is to be constructed with funds guaranteed in whole or in part by the federal government under Title IV of The Housing and Urban Development Act of 1968. . .

Over the years the courts of this nation have been called upon to construe statutes containing both general provisions and specific or express exceptions. For instance in Cook, Commissioner of Revenues v. Gore, 214 Ark. 777, 218 S.W. 2d 82 (1949), we stated the general rule of construction to be given to such statutes as follows:

“. . . It has been held that where a general statutory provision contains an express exception, courts are required to give effect thereto, even though it may render the principal clause meaningless. ...”

In Scott v. Greer, 229 Ark. 1043, 320 S.W. 2d 262 (1959), we stated the rule of construction to be applied in this manner:

“. . . Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will. . . .”

When we apply the foregoing rules of construction, which were available to the legislators and presumably recognized by them at the time Act 298, supra, was enacted, we find that the annexation proceeding here involved must be nullified and voided. In so doing we note that our General Assembly is not the first legislative body to exclude lands used for agriculture from annexation or land use regulation. See People v. City of Joliet, 321 Ill, 385, 152 N.E. 159 (1926), Gaspari v. Board of Adjustment of Township, 392 Pa. 7, 139 A. 2d 544 (1958), and Carp v. Board of County Com’rs. of Sedgwick, 190 Kan. 177, 373 P. 2d 153 (1962).

Appellee also contends that this construction of the exception of lands “used only for purposes of agriculture or horticulture” would in effect absolutely prohibit any meaningful annexation by a city under the first five sentences of Ark. Stat. Ann. § 19-307.1, supra. This contention appears to arise from an overly broad interpretation of the agricultural use exception employed by appellee in its brief that was not shared by counsel for appellants during oral argument — i.e., appellee contended that every plot of land used to grow a garden or pasture a horse would stymie the growth of the City. However, in view of the concession that appellee made with respect to the nature of the agricultural use of the lands here involved and the issues on which evidence was taken, we do not undertake to give an advisory opinion as to what may or may not constitute lands “used only for purposes of agriculture.” As pointed out in City of Little Rock v. Findley, 224 Ark. 305, 272 S.W. 2d 823 (1954), “new attempts at annexation will unavoidably involve new parties and new issues. ...”

Appellants also raise other issues including constitutional questions that we do not reach in view of the disposition herein made.

Reversed and remanded with direction to annul the annexation.

Fogleman, J., concurs, and Jones, J., dissents.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION of El Dorado, Arkansas v. UNION FIDELITY SAVINGS & LOAN ASSOCIATION and ARKANSAS SAVINGS & LOAN ASSOCIATION BOARD
    74-109
    515 S.W. 2d 75
    Opinion delivered November 4, 1974

      J. S. Brooks, Edwin B. Alderson and Wright, Lindsey & Jennings, for appellant.

      Brown, Compton & Prewell and Smith, Williams, Friday, Eldredge & Clark, by: William L. Terry and Hermann Ivester, for appellees.
   Frank Holt, Justice.

The appellee, Arkansas Savings and Loan Association Board (hereinafter referred to as Board), issued to appellee, Union Fidelity Savings and Loan Association (hereinafter referred to as appellee), a charter to do business in El Dorado. The application was opposed by the appellant. The Board’s decision was affirmed by the circuit court and from that judgment comes this appeal. For reversal the appellant asserts that the court erred in finding there was substantial evidence to support the Board’s decision to issue the charter. Appellant argues that the proof is insubstantial to show there is a public need for a new association; the volume of business in the area does not indicate a successful operation by appellee; and there is no substantial evidence that appellee’s doing business in the area will not unduly harm any other existing association or other financial institution in that area. Ark. Stat. Ann. § 67-1824 (Supp. 1973). Since these issues are so closely related, we discuss them together.

The appellant recognizes our rule that in this type case we affirm the Board’s action if there is any substantial evidence to support its findings. Morrilton Fed. S&L v. Arkansas Valley S&L, 243 Ark. 627, 420 S.W. 2d 923 (1967). Furthermore, in determining if substantial evidence exists, we consider only the appellee’s testimony or that evidence adduced which is most favorable to the appellee. Baldwin v. Wingfield. 191 Ark. 129, 85 S.W. 2d 689 (1935); and Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W. 2d 618 (1972). In the case at bar, when we consider the evidence with all reasonable inferences deducible therefrom in the light most favorable to the appellees, as we do on appeal, we are firmly of the view there is substantial evidence to support the Board’s findings.

The appellant, chartered in 1934, is the only savings and loan institution in El Dorado and Union County. Appellant is a 34 million dollar institution and is twelfth in size in the state. However, El Dorado is the ninth largest city in the state and the largest city with only one savings and loan association (with the exception of North Little Rock which is also served by several associations in Little Rock.) There are eight smaller cities in Arkansas with two existing savings and loan associations (six of these eight smaller cities are less than one-half the size of El Dorado and two of these eight smaller cities are less than one-third the size of El Dorado). The Board, being knowledgeable of the existence and success of these associations in snaller areas, no doubt took into consideration whether an additional savings and loan association was needed, could be successful in El Dorado and would not unduly harm the only one existing there.

The fact there was a population decline in the county by 1.9% the past three years is only one factor for the Board’s consideration. However, during the period 1960-1971 there was a 73.5% increase in personal income in Union County. There was evidence by appellee’s economic expert witness, as abstracted, that “the increase in employment which appears to have occurred in Union County is a very recent phenomonon in the last eighteen months. Now, I think there are pretty strong indications of continued employment in the availability of new jobs in Union County. I think there will be a significant growth in employment over the next two or three years.”

An executive of the El Dorado Chamber of Commerce detailed numerous industrial and commercial projects then under construction at a total cost of approximately 36 million dollars, which would create considerable additional employment. Appellee’s expert economic witness was of the view that these new construction projects underway “means there seems to be a trend now toward greater industrialization of the area, a trend toward population growth and I think it is verifiable.” There was evidence that appellant does not make loans on mobile homes, nor construction or interim loans on speculative building of houses. Local banks, which do not oppose appellees’ charter, are making mortgage loans which characteristically is done by savings and loan associations and not by the banks. One executive of a bank in the county testified that “I don’t think it [the new association]would have any effect on it [the bank]. In fact I think maybe it would help us.” This view was on the basis that it was found necessary to make long term loans to their customers which they prefer not to do. One of appellant’s witnesses admitted that during the current year, 1973, (the hearing was conducted on November 28, 1973) it had not made any commercial loans in the county. It appears that a large shopping center mall, approximating a cost of 3 1/2 million dollars had recently opened and that financing was principally provided by a savings and loan association in Fine Bluff. On another occasion, appellant was approached to finance the purchase of a local office building and the local purchaser found it necessary to secure the loan from a savings and loan in Magnolia. Savings and loan associations in Camden and Pine Bluff have considered applying for branch charters in El Dorado.

There was evidence by appellee that appellant’s advertising budget was very small. A witness for appellant admitted that it has “never done too much advertising.” Another witness for appellant testified that the public “seems to have more confidence in the bank than they do in a savings and loan, more careful about keeping their account insured.” Three of appellant’s other witnesses admitted that the local economy was “good,” “very good” and “definitely on the upswing.” A building contractor with long experience in the county was very optimistic as to the growth of El Dorado and the county. This builder has consistently built new homes requiring speculative financing. From January, 1973, up to the date of the hearing (November 28, 1973), he listed interim financing by local institutions at $135,000 and out-of-town financial institutions at $330,000. As to permanent financing, local financial institutions provided him with $110,600 and out-of-town financial institutions provided $557,000. He had requested financing from each of the four local institutions. The demand for construction money and financing is greater now than it has been in the last twenty years. Retail sales in the county have increased 203% since 1960.

As previously stated we are firmly of the view, without detailing further evidence from the voluminous record, there is substantial evidence, when viewed' most favorably to ap-pellee, as we must do on appeal, to support the Board’s finding that there is presently a need, which indicates a successful operation, for another savings and loan association in El Dorado and Union County and that it will not unduly harm the appellant, the only protestant, or other existing financial institutions in that area.

Neither do we agree with appellant’s contention that the evidence is insubstantial to support the Board’s findings that appellee will be “independent of the other financial institutions, that those persons named in the Articles of Incorporation as directors and officers do not have such affiliations with any financial institutions, or other businesses closely related to the savings and loan association’s business, which would affect the independence of the proposed association, and the directors are representative of the community.” Appellant invokes Ark. Stat. Ann. § 67-1824 (Supp. 1973), which in pertinent part provides that the Board find:

The proposed association will be independent of other financial institutions, that those persons named in the articles of incorporation as directors and officers do not have such affiliations with any financial institutions or other businesses closely related to the savings and loan association business which would affect the independence of the proposed association, and that the directors are representative of the community.

It appears that the father of one of appellee’s directors is a director of a local bank. The fathers of two of appellee’s directors are directors of another local bank and one of appellee’s directors is also a director of a local bank. However, four of the nine directors have no ties with any bank and one unnamed director, the managing officer, will have no ties to any local bank. Appellee’s capitalization consisted of $560,000, $400,000 in permanent capital and $160,000 by appellee’s stockholders. This is 2 1/2 times the minimum amount ($180,000 in permanent capital and $60,000 in paid-in surplus). The appellant does not take issue with the Board’s finding that:

The character, responsibility and general fitness of the persons named in the articles of incorporation and who will serve as directors and officers of the Association are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted.

Suffice it to say that all of the directors have differing backgrounds and have attained successful careers in their respective professions. They are representative of the community. Certainly, the Board was justified in finding that these individuals, successful in their own right, would be independent and conscientious in their new responsibility in preserving their own interest as well as the paramount interest of the public.

Appellant, in oral argument, vigorously insists that we should reverse and remand this cause to the Board for a definitive finding as to the basis of its decision as is required by the Administrative Procedure Act. Ark. S&L Bd. v. Central Ark. S&L. 256 Ark. 846, 510 S.W. 2d 872 (1974). Appellee insists that we should affirm the case on its merits as we did in Ark. S&L Bd. v. Grant Cty. S&L, 256 Ark. 858, 510 S.W.2d 863 (1974). Both of these decisions were handed down the same day and after appellant’s reply brief was filed. We remanded in Ark. S&L Bd. v. Central Ark. S&L, supra. There the issue that the Board erred in failing to make specific findings of underlying facts as required by law was argued in the briefs although not in the trial court. We said that the specific findings by the Board were for the benefit of the reviewing courts. In Ark. S&L Bd. v. Grant Cty. S&L, supra, the issue was not presented and we affirmed. Of course, as we have said, specific findings of the underlying facts are of great benefit upon appeal. However, here, as in Ark. S&L Bd. v. Central Ark. S&L, supra, the issue was not raised in the briefs. Only at oral argument was appellant’s contention asserted. By that time the court had studied the briefs and the issues there presented. Having done so and since the evidence is amply substantial to support the Board’s findings, we find it unnecessary to remand the cause for the Board to detail the basis of its findings.

We need not consider what action we would have taken had not both the Board and the circuit court decided this case before our decision in Ark. S&L Bd. v. Central Ark. S&L, supra.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Anthony RAGAR v. JACK COLLIER EAST COMPANY, INC.
    74-148
    515 S.W. 2d 205
    Opinion delivered November 12, 1974

      Thurman Ragar Jr., for appellant.

      Beresford L. Church Jr., for appellee.
   Carleton Harris, Chief Justice.

Appellee, Jack Collier East, Inc., hereafter called East, instituted suit against appellant, Anthony Ragar and his then wife, wherein East sought to declare in default a promissory note secured by a mortgage on appellant’s home because of the failure of Ragar to pay a $312.50 mortgage insurance premium, which, because of error on the part of an East employee, had not been collected at the time of closing. Ragar denied that he owed the premium; the court found that appellant was not in default, denied the foreclosure, but gave appellee judgment for the $312.50. From the decree so entered, appellant brings this appeal.

For reversal, three points are alleged, but all relate to whether there was a mutual mistake, or a unilateral mistake on the part of appellee.

The evidence reflects that appellant purchased a home in Little Rock belonging to Roy Rainey through John Hughes, a realtor of Little Rock. It was necessary that the purchase be financed, and Hughes contacted several mortgage bankers to ascertain interest rates and closing costs; he and Ragar decided that appellee was the most competitive of the ones contacted. Thereafter, the loan was processed, but at the time it was closed, Rosa Perrien, Secretary of Standard Abstract & Title Company, who prepared the closing statement and handled the closing, failed to collect a charge for a mortgage insurance premium of $312.50. Ms. Perrien testified that this was not collected because appellee company had failed to instruct her to collect it. The charge for coverage, termed MGIC, insures the mortgagee that the borrower will pay the ‘ top portion” of the loan. Linda House, an employee of Jack Collier East, testified that she prepared the closing instructions and initial Truth in Lending statement for the Ragar loan and that she made an error. The witness said that she had only been in that particular department for approximately one month, and that the mistake occurred because of inexperience. Ms. Perrien testified that about a week after the loan was closed, Linda House called her, telling her about the mistake, and asked Ms. Perrien to contact Ragar and explain to him that the amount had not been collected due to such mistake. The witness said that Ragar told her he would send her a check, but the next day called and said that he had talked with his attorney; that he did not feel that he had to pay the premium and he would not send the check.

Thomas Purifoy, Vice President of appellee company, testified that Mr. Ragar was aware that the mortgage insurance charge would, be made because he (Purifoy) discussed the matter with Ragar himself.

Hughes testified that all bankers have a mortgage insurance requirement, and he said that he discussed with the Ragars the down payment and all closing costs. When asked if he discussed the mortgage insurance requirement, Hughes replied, “Definitely”; that the matter was mentioned several times.

Mr. Ragar testified that he did not have any conversations with East employees about Mortgage Guaranty Insurance premiums; and that he did not discuss two ways of handling the insurance, as testified to by Hughes. He said that he didn’t understand what the MGIG insurance was for; the witness stated that Rosa Perrien called him, notifying him that there had been a mistake, not a week after the closing (as she had testified) but rather two weeks later. He said that he told her that if he owed the amount, he would pay it, but that he subsequently talked with attorneys, and on the advice of the latter, told Ms. Perrien that he had been advised he didn’t owe it. Subsequently, Purifoy called him about paying the money, but Ragar replied, “I have been advised that I do not owe the money, and I said ‘I couldn’t pay you right now if I wanted to, because I don’t have it’.” The only other pertinent fact to mention is that the Truth in Lending statement, prepared by Linda House, did not include the $312.50 charge.

The Truth in Lending Statute, 15 USCA § 1640, provides:

“(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.
(b) A creditor has no liability under this section if within fifteen days after discovering an error, and prior to the institution of an action under this section or the receipt of written notice of the error, the creditor notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to insure that the person will.not be required to pay a finance charge in excess of the amount or percentage rate actually disclosed.
(c) A creditor may not be held liable in any action brought under this section for a violation of this part if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”

Here, we do not have a case where a charge was erroneously itemized, but rather where the charge was not reflected in the closing statement. Nonetheless, the provisions just quoted would appear to be applicable, for Ms. Perrien testified that Ragar was notified of the mistake (in not including the charge) in approximately a week. Ragar testif ied that he'was not notified for two weeks that a mistake had been made. Be that as it may, we have not only a conflict of when the notice was given (in which case the chancellor would properly determine the conflict of evidence), but actually, under Ragar’s own testimony, he was notified within 15 days; not only that, but the record clearly discloses that he did not send to appellee any written notice of the error, nor did he institute any action. So — appellant is not entitled under the Truth in Lending Act to any relief.

It thus appears that the litigation is to be determined simply on the basis of which witnesses the trial court believed, although appellant argues that the mistake occurred only on the part of East, i.e., there was a unilateral mistake, and therefore parol evidence was not admissible. But it is apparent that if the court believed appellee’s witnesses, the failure to include the charge in the closing statement really constituted a mutual mistake, i.e., both parties already understood that the charge would be made. Parol evidence is admissible to show a mutual mistake. L. O. Galyen and Freda Galyen v. Mrs. Opal Gillenwater, 247 Ark. 701, 447 S.W.2d 137. Certainly, the testimony concerning the date the appellant learned of the mistake was pertinent to the issue, and the testimony of Hughes and Purifoy relative to the fact that Ragar had been informed that such a charge would be made was strong evidence of a mutual mistake.

As stated, in the final analysis, we consider that only fact questions were involved, and where the crucial issue is the credibility of the parties testifying, the chancellor is considered to be in a much better position than the appellate court to test such credibility. Dearien v. Lancaster, 221 Ark. 98, 252 S.W.2d 72. The testimony of appellee’s witnesses, evidently believed by the chancellor, was convincing evidence that Ragar was aware that the charge for MGIG insurance would be made.

Affirmed.

Byrd, J. dissents.

      Appellee cross-appealed because of the failure of the court to order the foreclosure, but the cross-appeal is not here pursued.

      Mortgage Guaranty Insurance Company.

      First 20%, the balance of the payments being secured by the mortgage.

      [4]We have not included subsections (d) and (e) because they are not pertinent to this cause of action.


author: Lyle Brown, Justice.

text:
    Lee REAVES et al v. Guy Hamilton JONES Sr.
    74-238
    515 S.W. 2d 201
    Opinion delivered November 12, 1974

      John Harmon and Phil Stratton, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Lonnie H. Powers, Deputy, for appellee.
   Lyle Brown, Justice.

On August 1, 1974, the Arkansas Senate voted to “expel and/or disqualify” Senator Guy Hamilton Jones, Sr., from that body. Jones brought this suit against Lee Reaves, Secretary of the Senate, and various other state officials, to pro. libit those officials from acting on the assumption that the expulsion was valid. For example, Jones sought to compel the State Auditor to continue paying Jones’ salary, and sought to prohibit the governor from calling a special election to fill a vacancy. The trial court held void the attempted expulsion of Jones. The principal findings of the trial court were that the senate did not follow the procedures outlined in House Concurrent Resolution 14; that Jones had no notice of the session at which he was expelled; and that his right to due process was in other respects violated. We are of the unanimous opinion that the trial court was in error and that the expulsion of Jones must be sustained.

Jones, a legislative veteran, was elected to the Senate in November 1972. In December 1972, he was found guilty in the United States District Court for the Eastern District of Arkansas of filing fraudulent income tax returns and making and subscribing to false returns. In January 1973, before being sentenced, Jones was seated in the senate. On April 3, 1973, he was fined $5,000 and placed on probation for a period of three years. In May of that year the Arkansas Attorney General issued an opinion that Jones had been convicted of an infamous crime under Ark. Const., art. 5, § 9 and was no longer qualified to serve as a senator.

On July 9, 1974, Jones was given notice that his qualifications to serve had been challenged as a result of the recited conviction, and that the senate would conduct a hearing. The senate adopted rules of procedure for the hearing and the same was conducted. The motion to expel failed of adoption. The senate thereupon recessed under the provisions of House Concurrent Resolution 14 to reconvene on August 1, 1974. More will be said later about that resolution but suffice it for the present to say that at the meeting held on August 1, a motion was made to expunge the record by which the expulsion motion of July 12 failed to carry. That motion carried. A motion was then made and carried by more than two-thirds vote that Senator Jones be expelled and/or excluded from the senate. This suit for mandamus and declaratory judgment followed.

The fundamental privileges and immunities possessed by the two houses of the legislature are imbedded in two provisions of our constitution. Our principal reason for rejection of Senator Jones’ contentions is founded on those provisions. Ark. Const., art. 5, § 11 provides:

Each house shall appoint its own officers, and shall be the sole judge of the qualifications, returns and elections of its own members.

In Evans v. Wheatley, 197 Ark. 997, 125 S.W. 2d 101 (1939), Evans appeared before the Arkansas Senate in 1937 and challenged the right of Walter Wheatley to serve in that body. The basis of the challenge was that Wheatley had previously been convicted of violating the State’s “bone dry” law and sentenced to one year in the penitentiary. The senate seated Wheatley. Then in 1938 Wheatley was again elected to the senate and the latter body again seated him. Appellant brought suit in the Pulaski Circuit Court to have Wheatley ousted and to restrain the auditor and treasurer from issuing and cashing warrants for Wheatley's services. We held that “qualifications” in art. 5, § 11, include “eligibility”, and that the court was without jurisdiction because the senate is the sole judge of the eligibility or qualifications of its members:

By the above provision, art. 5, § 11 of the Constitution, a clear mandate is given to each house of the General Assembly to be the sole judge of the qualifications of its members, and the courts of this state have no authority or jurisdiction to question the wisdom of their actions in seating or refusing to seat one elected to membership.

Then we have the case of Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512 (1942). There the chairman and the secretary of the státe democratic committee refused to certify Irby as a candidate for senator, on the ground that he had been convicted of embezzlement. We held such action to be without authority; that notwithstanding Irby had been held by this court ineligible to hold the office of county judge, the senate would not be bound to follow that opinion as respects election to the senate. That is, of course, because the senate is the sole judge of the qualifications of its members.

The constitution, art. 5, § 12, provides, among other things, that each house has the power to determine its own rules of proceedings. In that connection we have two landmark cases, St. Louis & S.F.R. Co. v. Gill, 54 Ark. 101, 15 S.W. 18 (1891); Bradley Lumber Co. v. Cheney, 226 Ark. 857, 295, S.W. 2d 765 (1956).

In Gill it was alleged that certain legislation affecting railroads was not passed in accordance with the joint rules of the general assembly. We said: “The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts.”

The decision in Bradley Lumber Co. reiterates the holding in Gill. Under the house rules, action in receding from an amendment was required by its own rules to be recorded in the journal. The action of the house on an amendment was not recorded and that raised the contention that the act was invalid. We said: “Subject to the restrictions imposed by the constitution each branch of the legislature is free to adopt any rules it thinks desirable. It follows, both as a matter of logic and as a matter of law, that each house is equally free to determine the extent to which it will adhere to its self-imposed regulations.”

We return to a discussion of HCR 14. Jones contends that under that resolution he was entitled to have notice and that the failure to give notice made the proceedings void. He further avers that the failure to give notice violated his constitutional right to procedural due process.

HCR 14 provided that both houses would recess at the close of business on Friday, July 12, 1974, and should reconvene on Thursday, August 1, 1974; that each house was authorized to convene from time to time as desired; that in the interim all bills passed would be checked for errors; that if errors were found the speaker of the house and the president of the senate would notify the members that the reconvening of the full membership would be necessary for the sole purpose of correcting errors in bills and consideration of vetoed bills; that unless such notice was given then five members of each house could reconvene on August 1 and adjourn sine die.

Appellee’s argument is without merit. Art. 5, § 12, and the decisions we have cited thereunder come into play. First, the rule adopted by the resolution was a matter of internal rule-making and could be changed at will. Secondly, the general assembly did not, either on April 12, or at any time thereafter until after the expulsion vote on August 1, adjourn sine die. The meeting on August 1 was clearly authorized, and on the basis of the constitutional rule-making independence it was the prerogative of the senate to act on such matters as it desired just so long as any action taken was not prohibited by the constitution.

We are not impressed by the argument of due process and res judicata. The latter is invariably tied into the civil processes of our courts and we are nowhere cited any authority for restricting the legislature in its power to amend, modify, or in fact obliterate its previous actions. As to the due process argument, the constitution, art. 2, § 8 says no man shall be deprived of life, liberty or property without due process of law. We hold that nothing in that wording supports appellant’s argument. We have many times held that the right to hold office is not a property right. McFarlin v. Kelly. 246 Ark. 1237; 442 S.W. 2d 183 (1969).

Jones insists that the proceedings of July 12 were a bar to any subsequent effort to reconsider petitioner’s qualifications, arguing that it constituted double jeopardy. He bases his argument on the provision of const., art. 5, § 12 which says a legislative member cannot be expelled twice for the same offense. The quick answer to the argument is that the vote of July 12 did not expel Jones. The vote on August 1 was the first expulsion.

Jones next contends that Governor Bumpers was absent from the State on August 1 and that Lieut. Gov. Bob Riley became acting governor and therefore could not constitutionally preside over the senate on that date. Mr. Riley was on August 1 at least de facto president of the senate; actions of a de facto officer are not open to question in a collateral proceeding. Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918). The perfect answer to the argument is found in Simon v. State, 86 Ark. 527, 111 S.W. 991 (1908). There the president of the senate continued to attest bills while performing duties as governor. We said he was de facto president of the senate and his actions were valid.

Jones relies on two United States Supreme Court decisions, Bond v. Floyd, 385 U.S. 116 (1966) and Powell v. McCormack, 395 U.S. 486 (1969). Bond met all requirements of a state legislator but the house of representatives refused to seat him on the ground that he could not conscientiously take the oath of allegiance. The court held that the action amounted to adding a standard which violated Bond’s First Amendment rights to freedom of speech. In Powell’s case the house voted to exclude Powell because he allegedly misappropriated public funds and abused the process of New York courts. The court said Powell met all the qualifications prescribed by Const., art. 1, § 5, and Congress was limited to considering the qualifications expressly prescribed.

We find no analogy between the case before us and the two cited cases. In fact the question foremost in our minds in a consideration of this case has been whether the senate exceeded its constitutional powers. We find no such abuse and therefore we are without authority to reverse the senate.

We agree with Jones that the trial court had jurisdiction because it was necessary to determine whether the senate was lawfully in session as prescribed by the organic law as expressed in the constitution.

The cause is reversed and remanded with directions that the trial court enter an order not inconsistent with our opinion. In view of the fact that a special election will be needed to afford representation to the 21st Senatorial District in the coming general assembly an immediate mandate shall issue.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Charles DENNISON et ux v. Richard MOBLEY, Chancellor
    74-106
    515 S.W. 2d 215
    Opinion delivered November 12, 1974

      Francis T. Donovan, for appellants-petitioners.

      R. L. (Jack) Roberts, William C. Brazil and Guy Jones Jr., for appellee-respondent.
   John A. Fogleman, Justice.

Appellants Charles and Modelle Dennison seek review of an order of the Faulkner Chancery Court holding them in contempt of court for violation of an order of the court relating to the custody of their three-year-old granddaughter. The order, insofar as material, reads as follows:

1. ****Charles and Modelle Dennison failed to comply with the Court’s order of reasonable visitation in that they failed to return the above named child after a three (3) hour visitation on December the 11th, 1973.
2. That said Charles and Modelle Dennison aided and abetted **** Clinton Eugene Dennison, their son, in allowing him to take Jessica Lynn Dennison outside the boundaries of the Court and the border of the State of Arkansas.
3. That the Court doth find a deliberate violation of its order of December the 11th, 1973 and that Charles and Modelle Dennison are hereby adjudged to be in contempt of this Court in that they aided and abetted one Charles Eugene Dennison from returing Jessica Lynn Dennison after the reasonable visitation had been awarded previously by this Court. The original order of December the 11th, 1973 was directed towards Charles and Modelle Dennison in that they were to comply with all Court orders directed towards Clinton Eugene Den-nison.
4. That the Court finds and hereby levies a fine of $.100 to be placed upon Charles and Modelle Dennison jointly. Also, a $100 a day fine, per day, until said child, Jessica Lynn Dennison is returned to the jurisdiction of this Court and to the above named plaintiff, Pearlie Mae Dennison. That said Charles and Modelle Dennison are io re nain in jail until said child is returned to this Court and that in addition to the time they are in jail an additional three (3) days is to be served by Charles and Modelle Dennison.

We first dispose of the contention of appellee that this appeal should be dismissed because review of such an order may be had only upon certiorari. Appellee is correct as to the mode of appellate review. Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605. This court in its supervisory capacity, however, has always been rather liberal in elevating substance above form in order to deal with a particular proceeding in a manner consistent with justice in order to expeditiously dispose of issues, when it can be done without prejudice to one not immediately before the court and there is no statutory or constitutional impediment. To this end an appeal may, in the discretion of this court, be treated as a petition for certiorari, particularly when the entire record of the proceeding is before us. Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W. 2d 651 (1974); Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. The entire record is before us. We find no statutory or constitutional impediments to our treating this matter on certiorari. We do not see how doing so could possibly result in prejudice to anyone not before this court. The motion to dismiss is denied, because it seems to us that the ends of justice require that we expeditiously dispose of the issues raised by appellants. We will therefore treat this appeal as a petition to quash the order on certiorari. The appellants will hereinafter be referred to as petitioners and appellee as respondent.

We may just as quickly dispose ol! the contention of petitioners that the chancery court was without jurisdiction over them because they were not parties to the divorce suit in which temporary custody of their granddaughter was awarded to her mother and reasonable visitation allowed her father, their son. They admit that they were present at the hearing which resulted in the entry of the order. At the inception of the hearing at which the order was entered and in the presence of petitioners, the chancellor emphatically announced that he would jail everybody connected with the case if he had any trouble on either side, “including relatives, kinsfolk, everybody else” and would fine and put on the county farm anyone who violated his order. At the conclusion of the hearing, the chancellor forcefully cautioned that he did not expect “any moré running off or snatching the child” or anything of that sort. Petitioners’ attorney had admitted in open court at this hearing that they were parties to the proceeding. The chancellor directed petitioners’ attorney, who was their son’s attorney in the divorce suit, to explain the remark to his clients. A certified copy of an order awarding custody to the mother on her ex parte application and fixing the date of the hearing had directed the sheriff to accompany the mother to obtain custody and to serve a certified copy of the order on petitioners. Although no return showing service of this order on them appears in the record, Chárles Den-nison testified at the contempt hearing that he was present at the custody hearing because he and his wife and his son had been made parties defendant, that he fully understood what the court said on that date, and that the remarks were directed to him and his wife. One who has full knowledge of a court order and its import, as petitioners did, cannot flout it with impunity. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841; See also Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680; Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W. 2d 538. The petitioners were clearly subject to the jurisdiction of the chancery court in the contempt proceeding.

Petitioners contend that contempt on their part was not proved by a preponderance of the evidence. This presents a problem of some apparent complexity. The argument on behalf of petitioners is based wholly upon their contention that the evidence preponderates in their favor, even when they concede that the court may have punished them for both civil and criminal contempt. They say that, since the evidence preponderates in their favor, there could not have been that degree of proof required to sustain a finding of criminal contempt. They are correct as to the degree of proof required in the trial court, but they overlook the difference in appellate review of the evidence on certiorari, not only as distinguished from its consideration by the trial court, but as between the two types of contempt. The distinction between the two and the overtones of each inherent in a child custody proceeding growing out of a divorce action were clearly recognized by the chancellor. See Songer v. State, 236 Ark. 20, 364 S.W. 2d 155.

In cases of civil contempt the enforcement of the rights of private parties to litigation is the objective. On the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and authority of, and respect toward, courts and the deterrent effect on others is just as important as the punishment of an offender. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841; Lee v. State, 102 Ark. 122, 143 S.W. 909; Turk v. State, 123 Ark. 341, 185 S.W. 472. The two purposes merge in a case such as this. Songer v. State, supra.

The distinction and the reasons therefor have been discussed by us in Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977, as well as in Songer. In Songer we said:

*****jt jg not qUestioneci that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt.

After stating the rule of appellate review set out in Blackard, we said:

Weighing the testimony under the above rules, we find there is substantial evidence to support the order of the trial court.

In Blackard, we had said:

One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case. This ruling was cor-rcct *****
On review by this Court in such proceedings by cer-tiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S.W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. *****
*****As previously stated, we review the evidence in this case just as we would an appeal in an ordinary criminal case, that is, to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court.

Of course, in a criminal case, we do not consider whether the guilt of an accused is proven beyond a reasonable doubt, since the test on appellate review is whether there is any substantial evidence to support the fact finder’s verdict. Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461; Morrow v. Roberts, 250 Ark. 822, 467 S.W. 2d 393; Graves v. State, 236 Ark. 936, 370 S.W. 2d 806. In Graves we said: In a criminal case we do not disturb the fact finder’s findings on fact issues unless there is no substantial evidence to support them. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750.

Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its case beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188. 241 S.W. 901.

Even though civil contempt findings are reviewed to determine where the preponderance of the evidence lies, we only examine the record for substantial evidence in criminal contempt cases and affirm a judgment finding criminal contempt unless we find no substantial evidentiary support. If we did not make this quite clear in Blackard and Songer we set the matter at rest in Morrow v. Roberts, supra and Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818. We must be able to say that there was no substantial evidence to connect the alleged contemnor with the acts charged before we can quash the order on certiorari. See Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680. It must also be remembered that, as in criminal cases, circumstantial evidence is substantial evidence when it is properly connected and does more than arouse suspicion. See Songer v. State, supra; Whorton v. Gaspard, supra; Ledford v. State, 234 Ark. 36, 351 S.W. 2d 425.

The chancellor’s findings and the punishment mated out, particularly when considered along with his opening and closing admonitions, clearly indicate that he considered the proceeding as one for both civil and criminal contempt in the light of such cases as Songer. The $100 fine and three days’jail sentence, characteristic of punishment for criminal contempt, were in addition to the civil contempt penalty obviously calculated to bring about compliance with the custody order, i.e., the fine of $100 per day and a commitment to jail until the child was returned to her mother.

Inasmuch as we are unanimously of the view that the order must be quashed, insofar as the alleged civil contempt is concerned, as clearly against the preponderance of the evidence, we will summarize the evidence only insofar as necessary to determine whether there was any substantial evidence to support the finding of criminal contempt. In doing this, we view it as we would in an ordinary criminal case, i.e., in the light most favorable to the court’s findings, drawing all inferences and resolving all conflicts against petitioners. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748 (1974); Elser v. State, 243 Ark. 34, 418 S.W. 2d 389.

Pearlie Maye Dennison and Clinton Eugene Dennison, son of petitioners, were married February 7, 1970. Jessica Lynn, aged three at the time of the custody hearing, was born to that marriage. Pearlie Maye had two children by a previous marriage. In December of 1971, she left Jessica Lynn with petitioner Modelle Dennison and her two other children with their maternal grandmother. Her purpose in doing so was to go to Alaska to aid in getting the son of petitioners out of jail. She wrote and signed a note dated December 19, 1971, stating that she had placed Jessica Lynn in the custody of the senior Dennisons, because of ill feelings between her mother and Mrs. Modelle Dennison. It read:

“I, Pearl Dennison leave my Daughter, Jessica Lynn Dennison in the custody of Mr. and Mrs. Charles Den-nison.
In the event anything should happen to myself, she shall remain in their custody.”

Pearlie May Dennison had understood that her husband would be placed in her custody or otherwise released upon her arrival in Alaska, but this did not occur. She related that it took her until February, 1972 to get him out of jail, that they obtained jobs but their employers failed to pay them, that the two separated, that she had undergone surgery, and that she had been unable to come back to get the baby until March, 1973. In the interim her mother supported her while she saved money for a plane ticket to return. When she did, she found that Jessica Lyrn had been taken to Louisiana. Petitioners did not want her to see the child when she got there and Modelle Dennison struck her on the back of the head when she attempted to hold the baby while visiting her at petitioners’ home.

On November 26, 1973, Pearlie Maye filed suit for divorce in which she sought custody of Jessica Lynn. The ex parte order mentioned earlier was issued the following day. On December 11, 1973, the temporary custody order was entered. Immediately after this hearing, the Dennisons (father and grandparents) picked up the child for a three-hour visitation from 5:00 p.m. to 8:00 p.m. The mother’s concern about the 8:0U p.m. termination was attributed to the fact that she put this child and her two others to bed at that hour. She denied that the baby was sick, as petitioners contend, or had a high fever. She attributed the child’s “runny nose” to the fact that the weather had just turned cold. The mother of the child stated that Mrs. Dennison, Sr. drove the car to her house when the child was picked up because her son, the child’s father, did not have a driver’s license and “she absolutely will not let him use any of the vehicles around the house.”

Petitioner, Charles Dennison, admitted that as soon as they reached his home with the child, he told his son to take the child to the doctor immediately to- get a statement from the doctor. The elder Dennison wanted the son to see “the welfare” the next day and have the doctor find out “just how sick she is,” hoping to gain some advantage for the son at the next hearing. He said he found that the son had taken the child to a doctor in Louisiana when he “called down there” and learned “he took her to a doctor as soon as he got to his place.” He knew that his son had been in trouble “with the law” previously. Sheriff Martin, a character witness called by petitioners, testified upon inquiry by their attorney that the son’s reputation was “not too good.”

Petitioner Modelle Dennison “guessed” that she left the keys in the car her son used in taking the child away, and said she saw him drive it out the driveway. About 8:20 p.m., she called her attorney, who was then her son's attorney, to advise him that the son had taken the child to a doctor, “in case anything came up.”

It is true that there are conflicts in the testimony here and that conflicting inferences might have been drawn. Yet, every presumption must be indulged in favor of the court’s judgment. Davies v. State, 73 Ark. 358, 84 S.W. 633. When there are conflicts in the testimony, it is our duty to give the same force to the findings of the trial court in contempt proceedings as we do in other cases when there is a conflict in the testimony. Ex Parte Winn, 105 Ark. 190, 150 S.W. 399.

Perhaps there is no case in which the court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part. When we accord due deference to the superior position of the chancellor, we must resolve all inferences in favor of his finding. We must say that the child was not sick, but only had a runny nose, just as many other children had at that season, according to her mother. The mother’s testimony in this regard must be taken as corroborated by the high-sounding name, “upper respiratory infection”, which may be used to describe a cold or “running nose.” See 2 Gray’s Attorney’s Textbook of Medicine, 37-2 § 37.01. We must say that the mother permitted her son to use the car he had not been previously permitted to drive to take the child away, and that the parents were not motivated by concern for the baby’s well being but were endeavoring to gain an advantage for their son in the battle for custody. How did the grandmother know at 8:20 p.m. that her son nad not returned the child to its mother by 8:00 p.m., or anticipate that something might come up about the failure, if she was ignorant and innocent of any violation of the terms of the visitation? The grandfather certainly knew how to locate his son and grandchild to “learn” about the trip to the Louisiana doctor.

When all the circumstances are considered, we cannot say that there was no substantial evidence to support the finding of criminal contempt. Whether the idea of taking the child outside the jurisdiction of the court originated with petitioners or their son is immaterial, for they are guilty of contempt if they maintained in motion contemptuous conduct originated by him. Bates v. State, 210 Ark. 652, 197 S.W. 2d 45. This they did by aiding and assisting him, if reasonable inferences to be drawn from the testimony are drawn in favor of the court’s findings.

When there are mitigating circumstances and the ends of justice can be adequately sustained by the payment of a fine and the serving of some part of a jail sentence, it has been our practice to modify the judgment by reducing the punishment imposed. See Garner v. Amsler, 238 Ark. 34, 377 S.W. 2d 872; Pace v. State, 177 Ark. 512, 7 S.W. 2d 29; Baker v. State, 177 Ark. 13, 5 S.W. 2d 337; Lockett v. State, 145 Ark. 415, 224 S.W. 952; Poindexter v. State, 109 Ark. 179, 159 S.W. 197. There are mitigating circumstances here.

These grandparents had the responsibility for the child for most of her life, which could be calculated to have produced a genuine concern on their part for her welfare. Even though the mother made an explanation for failing to reclaim custody sooner, there is still reason to doubt that she was always motivated by a normal concern for her baby’s welfare during her prolonged absence. There seems to have been a Louisiana decree purporting to award custody to their son. The child was taken to a doctor upon his arrival in Louisiana. The petitioners were immediately committed to jail at the conclusion of the hearing on the citation. They remained in jail until released on bail by order of this court entered the next day. They must have remained in jail at least overnight. In view of these circumstances and our reversal of the civil contempt feature of the chancery court’s order, we are not convinced that the ends of justice require that petitioners be again confined to jail on the criminal contempt conviction. Accordingly, we reduce the jail sentence to the time served.

As thus modified, that part of the chancery court’s order holding petitioners in criminal contempt is sustained, but that part holding them in civil contempt is quashed.


text:
    George SWIDERSKI v. W. L. GOGGINS et al
    74-298
    515 S.W. 2d 644
    Opinion delivered November 12, 1974

      Matthews, Purtle, Osterloh & Weber, for appellant.

      James W. Daniel and J. D. Patterson, for appellees and cross-appellant.
   Frank Holt, Justice.

This appeal results from a dispute about the number of absentee ballots which the Searcy County Election Commissioners must furnish the Searcy County Clerk for the general election on November 5, 1974, as well as the county clerk’s standing to obtain a writ of mandamus requiring the election commissioners to so act. The case was advanced and a per curiam order issued on October 30, 1974. This written opinion is pursuant to our per curiam.

The record shows that 450 absentee ballots were furnished the appellant by the appellees for the 1970 general election. There were 300 to 400 absentee votes cast. Approximately 145 of these were counted. For the 1972 general election, the appellees furnished appellant 100 absentee ballots. All of these were either mailed to voters or voted in the clerk’s office. The appellant testified that 50 additional people applied for absentee ballots and that 79 voters were listed by him as requesting ballots. They did not formally apply when they learned absentee ballots were no longer available. Of the 100 ballots furnished, 72 were actually counted.

For the 1974 general election, 108 absentee ballots were furnished the appellant by the appellees. Appellant then petitioned the circuit court to issue a writ of mandamus ordering appellees to furnish him a total of 450 absentee ballots. After a hearing, the circuit court issued a writ requiring the appellees to provide 42 additional absentee ballots or a total of 150. Since no evidence was adduced showing that the 28 absentee votes not counted in 1972 were cast by citizens other than qualified electors, the circuit court’ ruled that 100 electors voted. Therefore, 150 absentee ballots should be furnished appellant pursuant to Ark. Stat. Ann. § 3-610 (Supp. 1973) for the 1974 general election.

Appellant asserts that Ark. Stat. Ann. § 3-902 (Supp. 1973) requires absentee ballots be furnished by appellees to the county clerk to enable the mailing of ballots by him to “all qualified applicants.” Appellant claims Í50 are needed. The pertinent part of § 3-902 reads:

The county election commissioners shall prepare official absentee ballots and deliver same to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which such ballot will be counted but in any event not less than twenty-five (25) days before any election ....

Appellees assert that § 3-610 requires the county election commissioners to determine the number of electors voting at the last preceding comparable election and to supply the appellant the number of ballots by the method provided in that statute, which reads:

The County Election Commissioners of each county in this State not using voting machines shall, in due time for each general or special election, provide for each election precinct, and for each ward of a city or incorporated town in their County, one hundred and fifty (150) printed ballots for each one hundred (100), or fraction of one hundred, electors voting thereat at the last preceding comparable election; and no ballot shall be received or counted in any election to which this Act [§§ 3-101 —3-1306] applies, unless it is provided by the County Election Commissioners as herein provided. (Emphasis added.)

It appears the applicability of this statute was not questioned by the parties. This statute is obviously designed to provide a formula to insure sufficient absentee ballots for absentee voters to enable county election commissioners and the county clerk to fulfill their statutory duty as directed by § 3-902.

The appellant and the appellees disagree as to which was the last preceding comparable election. It is appellant’s contention that the last preceding comparable election was the 1970 general election at which time 300 to 400 absentee ballots were cast. Therefore, if we accept the minimum of 300 absentee ballots as being cast, the appellant should be furnished the requested 450 absentee ballots pursuant to the statutory formula. (150 x 3)

The appellees assert that the statutory formula (§ 3-610) should apply to the 1972 general election, as being the last preceding comparable election, where 100 ballots were furnished and used. Since only 72 of these 100 absentee ballots cast were counted, the statutory formula would require them to furnish only 108, which they did. (72 x VA = 108) This obviously is not accurate because the statute requires that 150 ballots be furnished for each 100 or a fraction of 100 electors voting. However, the undisputed evidence is that after the 100 absentee ballots were used by the absentee voters, 50 applied for the right to vote absentee and 79 were listed as requesting the right to vote absentee. Therefore, 129 could not cast absentee ballots since none were available. In other words, it appears a total of 229 voters would have cast absentee ballots. After a careful review of the statute, we are of the view that it was the legislature’s intent, in establishing the voting formula, to make it reasonably certain that every absentee voter would be assured of the right to exercise his voting franchise. When we apply the statutory formula (150 for every 100 or fraction thereof) to the number of 229 individuals who either voted or attempted to vote absentee, the appellant is entitled to the requested 450 absentee ballots.

Appellees are concerned that the absentee ballots will not be properly voted. Statutory remedies exist, however, to correct improper procedures or illegal voting.

Appellees cross-appeal asserting that appellant has failed to show a clear legal right to a writ of mandamus. In Swiderski v. Goggins, et al, 257 Ark. 164, 514 S.W. 2d 705 (1974), we held that the same appellant here did not there show a “clear legal right to a writ of mandamus.” There appellant sought the writ to compel the commissioners, the appellees here, to transfer to him for his determination the sufficiency of certain petitions placing an independent candidate on the ballot. There we said that by statute the county board of election commissioners clearly had the right and duty to determine the sufficiency of the petitions. However, in the case at bar the pertinent statute, Ark. Stat. Ann. § 3-901 (Supp. 1973), provides:

The County Clerk shall be custodian of the absentee ballots. The County Clerk shall be furnished a suitable room at the County Court House and shall exercise all the powers and duties concerning the application for, the issuance of, and the voting of absentee ballots required by law of the County Clerk. (Emphasis ours.)

Further, § 3-902 reflects that the county clerk is unable to fully perform his statutory duty until the county election commissioners prepare and furnish him the requested absentee ballots. Appellant, therefore, has the legal right and standing to seek and secure a writ of mandamus.

Affirmed as modified on direct appeal and affirmed on cross-appeal.


text:
    Leodis RANDLE v. STATE of Arkansas
    CR 74-104
    516 S.W. 2d 6
    Opinion delivered November 18, 1974
    [Rehearing denied December 16, 1974.]

      Kenneth Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Leodis Randle, was charged by Information with the crime of burglary and the trial court, sitting as a jury, found Randle guilty and fixed his punishment at three years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, six points are alleged, and we proceed to a discussion of the.contentions.

It is asserted that the evidence was not sufficient to sustain the conviction. The proof reflects that Officer McGill of the Little Rock Police Department answered a burglary alarm at approximately 7:45 p.m., on December 8, 1972, at the Sol Alman Company. Upon arrival, he found a hole in the wall of the building approximately one and one-half feet in diameter. While other officers went inside the building to investigate, McGill remained outside, and discovered Randle crawling out of the hole. Appellant was then placed under arrest and taken to the police unit. After entering the building, McGill observed that the office door, which was in the rear of the structure, “had been bursted open and several of the desk drawers had been gone through, and two fifths of whiskey was sitting just outside the office door.” Alman, owner of the building, testified that when he left his place of business on the afternoon of December 8, “everything was normal.” Upon returning to the building, the owner testified that a hole had been “knocked in the east side door” and this condition did not exist when he had left the building in the afternoon. He corroborated the evidence that the office had been “ransacked and drawers overturned, and it looked as though someone were going through all the drawers and files, and it was in disorder, disarray.” The State rested and appellant offered no evidence.

We do not agree that the evidence was insufficient to support the verdict, and this contention is answered by our case of Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876, where we said that a larcenous intent could fairly be inferred from the facts. We also referred to an earlier case, Clay v. State, 236 Ark. 398, 366 S.W. 2d 299, wherein it was stated, “We have held that the offense of burglary is complete even though the intention to commit a felony is not consummated.”

In Scates, we pointed out that the defendants were found inside a locked cafe containing amusement and vending machines, when they had no permission or lawful right or reason to be there. Here, appellant had no lawful right or reason to be in the Alman building; he was found there after office hours; although no tools were found in his possession, there is testimony that the hole was present, which was not there when the building was secured. Of course, as mentioned, the testimony reflected that the office appeared to have been thoroughly “ransacked”. The evidence was sufficient to sustain the conviction.

It is asserted that two terms of court had elapsed between the date of the filing of the information and the judgment of conviction, and the charges against defendant should have been dismissed under the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964). This contention is unsound for three reasons. In the first place, we have held that a proper construction of the statute contemplates two terms of court passing in addition to the term in which the defendant is indicted. See O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. In addition, the record reflects that two of the applications for continuance were made on motion of the appellant, and these delays could not be held against the State. Not only that, appellant had been released on bail and the applicable statute is, therefore, Ark. Stat. Ann. § 43-1709 (Repl. 1964) which provides that one on bail shall be discharged (unless the delay happened on his application) if he is not brought to trial before the end of the third term of the court in which such indictment is pending. See also State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246.

It is next asserted that the defendant did not waive a jury trial but the transcript is clear to the effect that appellant appeared in person and by his attorney, and on motion of the appellant, the jury was waived.

It is next alleged that the State “apparently withheld information beneficial to the defendant since the result of the interrogation of him was not revealed.” The quick answer to this contention is that the record does not reveal any motion by appellant for discovery, or bill of particulars. Ark. Stat. Ann. § 43-2011.2 (Supp. 1973) provides the procedure for discovery and appellant did not avail himself of the provisions of this statute.

It is contended that the record does not reflect that the defendant was advised of the nature and possible effects of the charge against him or of his rights under the law. We disagree. The Information clearly sets out the burglary charge against Randle and the transcript also reflects that the defendant and his attorney were present at arraignment “and the defendant is called to the bar of the Court and informed of the nature of the charge filed herein,” and a plea of not guilty was entered.

Finally, it is asserted that Federal constitutional rights were violated, but no additional argument is presented, and we find no merit in the contention.

It follows, that the judgment should be, and hereby is, affirmed.

The court desires at this time to call attention to the first sentence of Rule 9 (f) which has not been complied with in this case, and which reads as follows:

“Arguments shall be presented under subheadings numbered to correspond to the outline of points to be relied upon.” This is not the first time that this rule has been violated, nor is present counsel the only attorney to violate it. The six points relied upon for reversal are set out individually as required by subsection (c); however, the argument under all points, covering two and one-half pages, is “mingled” together under the general heading, “Argument”, and even then such argument is not consecutively set forth, as stated in the points. The purpose of Rule 9 (c) and (f) is to aid the court in following the arguments, and to enable it to determine whether there is merit in any alleged point of error. To “dig out” the particular sentence or paragraph which deals with a specific asserted point is discomfiting and burdensome. Preparation of a brief in the manner described above can only create confusion. Nothing herein said is meant to imply that an attorney cannot argue points that are interlinked (where one can hardly be argued without including the other), and likewise, it is, of course, entirely proper to mention that a particular point was covered by the argument under a preceding point, for we desire no reiteration. Accordingly, we take this occasion to urge the members of the Bar of Arkansas to follow strictly the procedures mentioned in these rules which will substantially aid this court in handling its work load more efficiently and expeditiously.

      By Act 185 of 1955, the General Assembly amended the statute to read'that the offense of burglary is committed on the unlawful breaking or entering with the intent to commit any felony, or larceny.

      The attorney representing appellant on appeal is not the same attorney who represented him on trial.


author: George Rose Smith, Justice.

text:
    Barbara Lynn PERRY v. Larry Eugene PERRY
    74-104
    515 S.W. 2d 640
    Opinion delivered November 18, 1974
    Frierson, Walker, Snellgrove & Laser, by: Stanley R. Langley, for appellant.

      W. B. Howard, for appellee.
   George Rose Smith, Justice.

This suit, originally a divorce case, has narrowed down to a dispute about the custody of the parties’ four-year-old daughter, Amy. In December of 1972 the appellee, the husband, obtained an uncontested decree of divorce upon allegations of desertion and adultery. The chancellor awarded custody of the child to the appellee, finding that he was a proper person to have the care of the child and that the mother was morally unfit for that responsibility.

A few months later the appellant, who had married David Jaworski three weeks after the divorce, sought custody of her daughter, asserting a change of conditions. After an extended hearing the chancellor entered an order enlarging the mother’s visitation privileges but denying her request for a change of custody. This appeal is from the latter part of that order.

We need not detail the testimony, which simply presents contested issues of fact. The weight of the evidence shows that the appellee filed suit for divorce after the appellant had left him, had taken Amy with her to Memphis, Tennessee, and there had occupied an apartment with Jaworski. In the court below the appellant admitted that while she was living in that apartment she had permitted another young woman to spend the night there upon a number of occasions with any one of several different men.

We cannot say that the chancellor was wrong in not finding a change of conditions sufficient to require a change of custody. In the original decree of divorce the court found that the appellant was morally unfit to have the custody of her daughter. Later events of an external nature, such as the appellant’s marriage to Jaworski, her attendance at church services, and her ability to provide a home for Amy, fall short of compelling one to conclude that the appellant’s character has also changed. For that reason the cases relied upon by the appellant are not persuasive. For example, in Perkins v. Perkins, 226 Ark. 765, 293 S.W. 2d 889 (1956), we pointed out that there was nothing in the record to indicate that the mother was not a proper person to have the custody of her child. No such statement can be made in this case.

In electing to decide the case upon its merits we are to some extent bypassing the appellee’s insistence that the appeal should be dismissed because of the appellant’s asserted failure to obtain from the trial court, in the time and manner specified by Ark. Stat. Ann. § 27-2127.1 (Supp. 1973) and by Supreme Court Rule 26A, an extension of time for the filing of the record in this court. Upon this point the proof, which is not entirely clear, suggests that the extension was sought not because the court reporter was unable to meet the deadline for filing the record but because counsel wanted more time for the preparation of the appellant’s brief in this court. In fact, a motion for an.extension of brief time was sent to our clerk before the record had been lodged here and hence before we had jurisdiction of the case.

As we pointed out in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), the legislative intent in the enactment of Section 27-2127.1, supra, was to eliminate unnecessary delay in the docketing of appeals to this court. Certainly the legislative purpose was not to provide a means by which needless postponements could be obtained. We expect com-plicance with the spirit of the statute, to the end that lawsuits may progress as expeditiously as justice requires.

Affirmed, the appellee to recover his costs.


text:
    Gregory Wilder HOLMAN v. STATE of Arkansas
    CR 74-142
    515 S.W. 2d 638
    Opinion delivered November 18, 1974
    No briefs.
   George Rose Smith, Justice.

The appellant was found guilty of delivering marihuana, a three-year sentence being imposed. On October 7, 1974, his attorneys sought to perfect an appeal by tendering the record to the clerk of this court. The clerk correctly refused to accept the record, because it was tendered more than seven months after the entry of the judgment. Counsel then filed the present motion, under our Rule 5, to require the clerk to docket the case. It is asserted that the error occurred because both the trial judge and the attorneys mistakenly believed that the trial judge could grant an extension for a period of seven months beginning 90 days after the filing of the notice of appeal, when in fact the seven months runs from the entry of the judgment. Ark. Stat. Ann. § 43-2705 (Supp. 1973) and § 27-2127.1 (Supp. 1973). The trial judge has filed a statement acknowledging his error and recommending that the record be accepted.

In a recent case, Dorsey v. State, we entered a per curiam order allowing the record to be filed in somewhat similar circumstances. There was, however, a significant difference, in that Dorsey was an indigent person represented by court-appointed counsel. Inasmuch as postconviction relief may be available to an indigent prisoner whose right to an appeal has been lost through the carelessness or inc ompetence of appointed counsel, we have avoided circuity of action by allowing a belated appeal, as in Dorsey.

Here, however, the appellant appears to be represented by retained counsel. It was formerly the general rule that the failure of retained counsel to perfect an appeal did not entitle the client to any relief. See annotation, 74 A.L.R. 2d 1457 (1960). Since the decision in Douglas v. California, 372 U.S. 353 (1963), however, some courts have held that gross incompetence or gross negligence on the part of retained lawyers may involve a denial of due process or equal protection. United States ex rel. O’Brien v. Maroney, 423 F. 2d 865 (3rd Cir. 1970); Shiftman v. Gladden, 453 F. 2d 921 (Ore., 1969).

We need not explore that area of developing legal theory, for in the case at hand a misunderstanding shared by counsel and by the trial judge brought about the tardy tender of the record. A litigant should not be prejudiced by the action of the court. Wallis v. State, 245 Ark. 29, 430 S.W. 2d 860 (1968). Moreover, when, as in the present case, a fairly recent statutory change had led to an error on the part of an attorney, we have allowed a short period of grace before requiring strict adherence- to the new law. Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973). We therefore permit the record to be filed in this instance, but after January 1, 1975, the statute will be applied according to its terms.

The requested rule on the clerk is granted.


text:
    Lester Jewell GLOVER v. STATE of Arkansas
    CR 74-75
    515 S.W. 2d 641
    Opinion delivered November 18, 1974

      Acchione & King, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant contends that the circuit court erred in refusing to release him from custody on his petition for habeas corpus. Fie was held on a warrant issued by the Governor of Arkansas honoring the requisition of the State of Texas for his extradition upon a charge of Driving While Under the Influence of Intoxicating Liquor alleged to have been committed in McLennon County, Texas, on April 9, 1972. Appellant asserts that the affidavit upon which the charge by information was made was insufficient to show that appellant had committed a crime in Texas and that the offense charged is a petty offense for which an alleged offender is not extraditable. Since we do not agree with either contention, we affirm.

The affidavit was made by one Oron Land, who deposed that “Lester Jewell Glover in the County of McLennon, and State of Texas, heretofore on or about the 9th day of April, A.D. 1972, did then and there unlawfully drive and operate a motor vehicle in and upon a public highway, there situate, while he, the said Lester Jewell Glover was under the influence of intoxicating liquor against the peace aad dignity of the State.” Appellant quotes the applicable Texas Statute Art. 6701/-l, “Intoxicated Driver; Penalty,” [Vernon’s Annotated, Revised Civil Statutes of State of Texas, Vol. 19’/2 (Pamphlet Supp. 6701 /-I] as follows:

“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor and upon conviction shall be punished by confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars. Provided, however, that the presiding judge in such cases at his discretion may commute said jail sentence to a probation period of not less than six (6) months.”

The Arkansas Uniform Criminal Extradition Act permits the recognition of a written demand for extradition of one charged with a crime in the demanding state when it is accompanied by a copy of an indictment, or an information supported by affidavit to the facts or by affidavit before a magistrate. Ark. Stat. § 43-3003, 43-3005 (Repl. 1964). This act must be considered along with the federal statutes, because the federal act controls where there is an inconsistency, but the legislature of the asylum state may permit its Governor to surrender a fugitive on terms less exacting than those imposed by Congress. Gulley v. Apple, 213 Ark. 350, 210 S.W. 2d 514.

After the requisition has been honored by the Governor, the circuit court can consider a petition for habeas corpus for only two purposes, i.e., to establish the identity of the prisoner and to determine whether he is a fugitive, if the requisition shows facts necessary to return of the alleged fugitive. State v. Allen, 194 Ark. 688, 109 S.W. 2d 652. The only question involved here is the sufficiency of the requisition, and the answer turns upon the question whether there is a substantial charge of a violation of the laws of Texa- Stuart v. Johnson, 192 Ark. 757, 94 S.W. 2d 715.

Appellant places his principal reliance upon Kirkland v. Preston, 385 F. 2d 670 (D.C. Gt. App. 1967) wherein it was held that a police officer’s affidavit stating the crime of arson in the conclusory language of the Florida statute was insufficient to show probable cause. We note that there was no verified information in Kirkland, however, as there is in this case. Even if this is not an appropriate distinction, there is respectable authority holding that, under the Uniform Extradition Act, charging the accused with a crime substantially in the language of the statute upon which it is purported to be based will not be held insufficient for want of a precise or technical accusation. Ex Parte Hubbard, 201 N.C. 472, 160 S.E. 569, 81 A.L.R. 547 (1931); State v. Booth, 134 Mont. 235, 328 P. 2d 1104 (1958). Statutes concerning rendition and extradition are not to be construed narrowly and technically by the courts, but liberally, in order to effectuate their purposes. People v. Sheriff, 225 App. Div. 156, 232 N.Y.S. 217 (1929).

It is quite generally held that an affidavit in accordance with the standards of the criminal procedural law of the demanding state is a sufficient charge of an offense against the laws of that state to warrant extradition and that its sufficiency must be tested by the laws of that state. Ex Parte Paulson, 168 Ore. 457, 124 P. 2d 297 (1942); People v. Sheriff, 251 N.Y. 33, 166 N.E. 795 (1929); Collins v. Traeger, 27 F. 2d 842 (9 Cir., 1928); Goodale v. Spain, 42 App. D.C. 235 (1914); In Re Acton, 103 N.E. 2d 577 (Ct. App. Ohio 1949); People v. Moran, 137 Misc. Rep. 905, 244 N.Y.S. 590 (1930); Annot, 40 A.L.R. 2d 1151, 1161 (1956). It is not for the asylum state to apply its own rules of procedure. People v. Sheriff, 251 N.Y. 33, 166 N.E. 795 (1929). See also Ex Parte Reggel, 114 U.S. 642, 5 S.Ct. 1148, 29 L. Ed. 250, 5 Am. Crim. Rep. 218 (1884); People v. Babb, 415 Ill. 349, 114 N.E. 2d 358, 40 A.L.R. 2d 1142 (1953).

It is quite clear that the affidavit in this case is sufficient to support a charge of driving while intoxicated in violation of the Texas statute. Cisco v. State, 411 S.W. 2d 547 (Tex. Cr. App. 1967). Consequently, we hold that appellant was lawfully charged by information supported by an affidavit as to the facts, in the sense of Ark. Stat. Ann. § 43-3005 III (Repl. 1964), sufficiently to warrant the issuance of the warrant of extradition by the Governor. Affidavits couched in language just as conclusory as that in this case have been held sufficient for extradition purposes in other jurisdictions. See, e.g. People v. Mulcahy, 392 Ill. 290, 64 N.E. 2d 474 (1945).

Appellant’s second contention is completely without merit. We cannot in good conscience relegate an offense which might carry a penalty of two years in jail, in addition to a fine as large as $500.00, to the category of a petty offense. The Texas statute makes the offense charged a misdemeanor. Even though it is now codified in the Revised Civil Statutes of Texas, as appellant points out, the offense is still a misdemeanor and is still punishable as a crime. Even though our statute covering this offense is digested under the title “Motor Vehicles, Traffic on Highways” and not the title “Criminal Offenses,” appellant is the first to suggest to this court that this misdemeanor is not criminal in nature under Arkansas law.

The provisions of Article 4 § 2 of the U.S. Constitution include every offense punishable by the law of the state in which it is alleged to have been committed. Ex Parte Reggel, 114 U.S. 642, 5 S. Ct. 1148, 29 L. Ed. 250 (1884), 5 Am. Crim. Rep. 218; Kentucky v. Dennison, 65 U.S. 66, 16 L.Ed. 717 (1860); Starks v. Turner, 365 P. 2d 564 (Okl. 1961); People v. Babb, 415 Ill. 349, 114 N.E. 2d 358, 40 A.L.R. 2d 1142 (1953); Ex Parte Hubbard, 201 N.C. 472, 160 S.E. 569 (1931); Annot, 40 A.L.R. 2d 1151, 1152 (1955). Misdemeanors are definitely extraditable offenses. Ex Parte Reggel, supra; Kentucky v. Dennison, supra; Starks v. Turner, supra.

Since we find no merit in appellant’s points for reversal, the judgment is affirmed.


text:
    WEST & CO. of LA., Inc. v. A. Gene SYKES, INSURANCE COMMISSIONER, STATE of Arkansas
    74-157
    515 S.W. 2d 635
    Opinion delivered November 18, 1974

      Campbell, Campbell, Marvin & Johnson; Chambers & Chambers and Reed Williamson, for appellant.
    IF. II. /,. Woodyard III, IF. R. Ruddell and S. Doak Foster, for appellee.
   Conley Byrd, Justice.

The issue here is whether appellant West & Co. of Louisiana, Inc. by furnishing to its employees a group hospital and surgical benefit plan is transacting the business of insurance contrary to the provisions of Acts 1959, No. 148, Ark. Stat. Ann. § 66-2001 et seq. The trial court held in favor of appellee, A. Gene Sykes, Insurance Commissioner, State of Arkansas and enjoined appellant from “assuming and agreeing to pay, and paying out of its own funds, all or any portion of such benefits” until it had complied with the Arkansas Insurance Code.

Appellee concedes that the facts are not in dispute. They show that West & Co. of Louisiana, Inc. operates a group of Department Stores in Louisiana, Arkansas, Mississippi, Alabama and Texas. It furnishes to its employees a number of fringe benefits such as sick leave, profit sharing and the “group hospital and surgical benefit plan” that is here involved. The cost of the group hospital and surgical plan is shared with those employees who participate therein. A single employee pays $9.00 per month and an employee with a family pays $18.00 per month irrespective of age, health or number of dependents covered. Appellant sustains the balance of the cost of the plan including all administrative expenses. The record shows that for the last five years appellant in addition to the administrative expenses has paid out in benefits $102,781.72, more than the employees have paid in. The undisputed evidence is that the plan, very similar to a number of medical plans offered by insurance companies generally, if carried by an insurance company would cost each employee in excess of $40.00 per month.

To sustain the action of the lower court appellee relies upon the following provisions of the Arkansas Insurance Code:

“Ark. Stat. Ann. § 66-2002 (Repl. 1966). INSURANCE DEFINED. ‘Insurance' is a contract whereby one undertakes to indemnify another to pay a specified amount or provide a designated benefit upon determinable contingencies.
“Ark. Stat. Ann. § 66-2003 (Repl. 1966). INSURER DEFINED. ‘Insurer' includes every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance.
“Ark. Stat. Ann. § 66-2009 (Repl. 1966). TRANSACTING INSURANCE. 'Transact' with respect to insurance includes any of the following:
(1) Solicitation and inducement.
(2) Preliminary negotiations.
(3) Effectuation of a contract of insurance.
(4) Transaction of matters subsequent to effectuation of a contract of insurance and arising out of it.”

The appellee then quotes from 12 Applcman, Insurance Law & Practice, § 7001 as follows:

“Whether the contract is one of insurance must be determined from its purpose, effect, content, terminology, and conduct of the parties, and not from its designation therein, since a contract which is fundamentally one of insurance cannot be altered by the use or absence of words in a contract itself. The Court must look also to the intention of the parties in making this determination.”

The appellant on the other hand relies upon 12 Appleman, Insurance Law & Practice, § 7002, which provides in part as follows:

“A statute designed to regulate the business of insurance, growing out of experience with them and evils developing in them, is not intended to apply to all organizations having some element of risk assumption or distribution in their operations. The question of whether an. arrangement is one of insurance may turn, not on whether a risk is involved or assumed, but on whether that or something else to which it is related in the particular plan is its principal object and purpose. The courts of the District of Columbia have been prone to regard non profit group medical and hospitalization plans as not constituting insurance.
“The courts have been prone, doubtless because of the charitable and self-sufficient nature of railroad relief associations, to hold that they are not insurance companies within the provisions of regulatory acts. Similarly, a contract made by a corporation conducting a hospital, providing that for a stated consideration a woman should be received into the hospital and cared for the rest of her life, was not considered to constitute insurance, nor to be ultra vires nor against public policy. Pure endowment or annuity contracts have been considered not true insurance contracts.”

Keeton, Insurance Law-Basic Text, 8.2(a), makes the observation that statutory definitions of insurance as provided in Calif. Ins. Code § 22 (West 1955) and Mass. Gen. Laws Ann. ch. 175, § 2, (1958), are “so broad and general as to be virtually useless as guides to determine applicability of the regulatory system in a disputed setting.” The Calif. Ins. Code § 22 provides:

“Insurance is a contract whereby one undertakes to indemnify another against loss, damage or liability arising from a contingent or unknown event.”

In a footnote at page 543 Keeton, supra, states:

“Arguably these statutes should be read not as stating that every transaction having the stated characteristics is insurance but only as saying that no transaction is insurance unless it has these characteristics. If so construed, there would seldom be any occasion to invoke them since it is not likely that a transaction lacking these characteristics would be alleged to be insurance even if there were no statutory definition of that term. Reading these statutes instead as stating that all transactions having these characteristics are insurance would be to give them a meaning plainly inconsistent with the much narrower scope of regulation in practice. Many arrangements having these characteristics are never asserted to be insurance even by the most aggressive of regulatory officials.”

Other jurisdictions generally support the above quotations from Appleman § 7002, supra, and Keeton, supra. See State v. Pittsburgh, C.C. & St. Louis Ry. Co., 68 Ohio St. 9, 67 N.E. 93 (1903) and Colaizzi v. Pennsylvania R. Co., 208 N.Y. 275, 101 N.E. 859 (1913), holding that the operation of “railroad relief associations” do not constitute the doing of an insurance business. In California-Western St. Life Ins. Co. v. State Bd. of Eq., 151 Cal. App. 2d 559, 312 P. 2d 19 (1957), the retirement fund there involved was handled by the employer, a life insurance company, in much the same manner as the “West Plan’.’ here involved. After noting that the plan offered to the employees was optional; that it was not offered to persons other than employees; and that the plan was not ac-tuarially sound and was intended that way, the court in holding that the plan did not constitute an insurance contract, stated:

“. . . Regardless of the noted similarities in so many of the provisions contained in the plan to those found in annuity policies regularly sold by insurers, the great dissimilarity which inheres is the total absence of profit motive — never ignored by successful insurers — compels a conclusion that the establishment and maintenance of respondent’s employees’ retirement plan cannot be classified as insurance business done by it in this state. Such was not its purpose and such was not its nature. ...”

In holding that a guaranteed maintenance contract on trucks was not an insurance contract, the California Supreme Court, in Transportation Guarantee Co. v.Jellins, 29 Cal. 2d 242, 174 P. 2d 625 (1946), made the following observations:

“ [8, 9] In construing the contracts in question it must be borne in mind that nearly every business venture entails some assumption of risk, some element of gambling. The retail merchant when he purchases his stock assumes the risk of lower prices, of receding demand, of spoilage or deterioration of perishable goods; he gambles on his ability to dispose of the stock before it loses value or, perhaps, to hold it until there is an increment of value. The lawyer who contracts to prosecute a case to final judgment for a fixed or contingent fee assumes the risk of long litigation, of repeated trials and reversals. The lessee who agrees to hold his lessor harmless for damage to property of, or injury to, third persons occurring on the leased premises; the lessor who agrees to keep the premises in repair; even the surety on a note, assume a risk and indemnify another against loss. If the defense in this action is to prevail it is but another step to assert that same defense in actions arising out of any of the risk-indemnification agreements mentioned. We are satisfied that a sound jurisprudence does not suggest the extension, by judicial construction, of the insurance laws to govern every contract involving an assumption or risk or indemnification of loss; that when the question arises each contract must be tested by its own terms as they are written, as they are understood by the parties, and as they are applied under the particular circumstances involved.”

The appellee to sustain its contention that the contract in question constitutes the transacting of an insurance business under the Arkansas Insurance Code, points to our decision in Bost v. Masters, 235 Ark. 393, 361 S.W. 2d 272 (1962), involving service upon the United Furniture Workers Insurance Fund as an unauthorized insurer under the “Unauthorized Insurers Process Act,” Ark. Stat. Ann. §§ 66-2903 through 66-2907 (Repl. 1966). The fund there was a separate fund classified by its settlors as an “insurance fund” and presumably actuarially sound since it was funded by a “stated percentage of the wages" paid by the contributing employers to their employees during the proceeding month.

Now obviously the statutory definitions if given a literal interpretation are broad enough to support appellee’s position that the “West Plan” is an insurance contract. However, if we give to the definitions the literal interpretation that appellee espouses then the definitions encompass among other things the ordinary landlord and tenant arrangement where one or the other agrees to rebuild wáthin a specified time or be subject to certain specified liquidated damages. Of course, as pointed out by the authorities, discussed above, the regulation of landlord and tenant contracts was never considered not contemplated in the drafting or enacting of insurance codes. Since it at once becomes obvious that we should not give a literal interpretation to the statutory definitions, the question resolves itself as to where we should draw the line as to what is and what is not included. Under these circumstances we believe that the best policy is to approach the matter on a case by case basis and in accordance with the purpose of the evils to be regulated as disclosed by the authorities and the adjudicated cases from this and other jurisdictions. When the matter is approached from that view, we find that fringe benefits furnished to employees on an optional basis that are substantially supported by the employer’s profits and that are not intended to be actuarially sound are generally regarded as not being regulated by the insurance codes of the several states. Consequently, it follows that the trial court was in error when it enjoined appellant from j. :/ing out benefits under its plan.

Reversed and dismissed.