text:
    Bradley Lumber Co. of Ark. v. Cheney, Comm’r of Revenues.
    5-1057
    295 S. W. 2d 765
    Substitute opinion delivered December 10, 1956.
    [Original opinion delivered October 29, 1956.]

      Davis & Allen, for appellant.

      J. E. Gaughan, John H. Loohadoo, Hendrix Rowell, and Herrn Northcutt, for appellee.
   George Rose Smith, J.

This is a hill in equity by which the appellant seeks to enjoin the Commissioner of Revenues from enforcing a regulation issued under § 1 of Act 100 of 1955 (Ark. Stats. 1947, § 84-2107). It is asserted that Act 100 was not constitutionally passed by the General Assembly and that in any event there is no statutory authority for the imposition of a severance tax upon rough lumber as distinguished from timber. The chancellor held Act 100 to he constitutional and dismissed the appellant’s complaint.

Section 1 of Act 100 requires, in substance, that a purchaser of severed natural resources must ascertain whether the severance tax thereon has been paid and, if not, must withhold the amount of the tax from the purchase price. The appellant, in attacking the validity of the act, offers proof to show that, although the bill as introduced in the House of Representatives was amended by that body, the Governor signed the bill in its original form, without the amendment. It is accordingly argued that the bill which the Governor approved is not the same bill which was passed by the legislature.

The undisputed proof is to this effect: The bill, as introduced in the House on January 20, contained a clause authorizing the Commissioner of Revenues to prepare a formula for determining the severance tax upon saw timber that had been converted into lumber. On February 3 the House adopted an amendment which provided that this formula should be prepared by the State Forestry Commission. On February 8 the bill was read for the third time and passed by the House. The entry in the House journal with reference to the final passage of the hill refers to the measure merely as “the bill,” without mentioning the amendment previously adopted; so the journal does not affirmatively reflect that the House approved the measure in its amended form. The bill was then sent to the Senate, which passed it on February 11. The Senate journal, like that of the House, refers merely to “the bill.” As signed by the Governor the measure does not contain the amendment adopted by the House on February 3.

These facts are not sufficient to establish the invalidity of the act. When a bill is signed by the Governor and deposited with the Secretary of State, there arises a presumption that every requirement for its passage was complied with. Harrington v. White, 131 Ark. 291, 199 S. W. 92. This presumption cannot be overcome by the silence of the législative journals unless the constitution requires the journals affirmatively to show the action taken. There is no requirement in the constitution that either house keep a record of its action upon amendments to a pending bill; all that is required is a record of the vote cast upon final passage of the measure. Const., Art. 5, § 22. It is therefore entirely possible — and the presumption arising from the Governor’s approval requires us to assume — that in the interval between February 3 and February 8 the House receded from the amendment without recording its action in the journal. The point was so decided, upon similar facts, in Chicot County v. Davies, 40 Ark. 200, and Perry v. State, 139 Ark. 227, 214 S. W. 2d 2. Those cases control this one.

Nor is the presumption overcome by the fact that the House’s action in receding from the amendment should, under the House’s own rules of procedure, have been recorded in its journal.' 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. For this reason it was held in Railway Co. v. Gill, 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452, that the validity of an act is not affected by the legislature’s disregard of its own rules, the court saying: “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 determination that Act 100 is valid is practically a complete answer to the appellant’s alternative contention. We do not construe either Act 100 or the Commissioner’s regulation thereunder as an attempt to collect a severance tax upon rough lumber as such. The tax is levied upon the severing of timber and timber products. Ark. Stats., § 84-2102. Act 100 and the regulation in question merely supplement the existing statutes by requiring specified processing mills, in connection with their purchases of such timber and timber products, to withhold from the seller any amount of tax that is still owed to the State. It is suggested by a paragraph in the appellant’s brief on rehearing that the appellant construes the regulation as an attempt to require a purchaser of rough lumber to pay a tax thereon even though the severance tax has already been paid upon the timber from which the lumber was made. We do not so interpret the regulation, nor does the Commissioner make any such contention in his pleadings or in his brief. Act 100 is intended to provide a more efficient method of collecting unpaid severance taxes; if the Commissioner should attempt to construe the act as authority for the collection of a new and independent tax upon lumber his conclusion would clearly be erroneous.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    McCurry v. Wilson.
    5-1196
    294 S. W. 2d 485
    Opinion delivered October 29, 1956.

      Odell Pollard and Tingling & Tingling, for appellant.

      J. E. Lightle, Jr., and Ike Murry, for appellee.
   George Rose Smith, J.

This is a taxpayer’s suit by which the appellee, Jack Wilson, seeks to prevent the county board of election commissioners from submitting, at the coming general election, the question of whether the manufacture and sale of intoxicating liquors shall be prohibited in White county. The chancellor held the petition for a local option election to be legally insufficient and accordingly enjoined the county board from putting the issue upon the ballot.

The appellee’s main contention is that Act 15 of 1955 (Ark. Stats. 1947, §■§ 48-824, 48-825) requires that every petition for a local option election be cast in the form of an initiated county measure. Since the petition in the present case complies only with § 1 of Initiated Act No. 1 of 1942 (Ark. Stats., § 48-801) it is argued that the petition is for this reason legally insufficient. This contention is rejected in the companion case of Brown v. Davis, supra, page 843, also decided today, in which we hold that the petition may be drafted in compliance with the 1942 statute and that Act 15 of 1955 merely governs the procedural steps to be taken after the petition is filed with the county clerk.

In one respect, however, the present case differs from its companion and presents an additional issue for determination. White county is one of the few counties in the state which are neither completely wet nor completely dry. No intoxicating liquor can be legally sold in White county, but the sale of light wine and beer is permitted in a number of precincts in the county. In view of this situation it is argued that a petition calling for a clear-cut choice between the legalization of hard liquor and the complete prohibition of all intoxicants' will necessarily mislead and confuse the electorate, since there will be no way for a voter to express his preference for the moist condition that now exists in the county. Upon this theory the appellee argues that the petition for the election should have been limited to the submission of the question whether the manufacture and sale of light wines and beers would be permitted or prohibited.

However much this argument may appeal to a sense of abstract fairness, its fallacy lies in the fact that the statutes undeniably permit fifteen percent of the qualified voters to call for an election of the type now contemplated. Some twenty years ago White county adopted its present state of modified prohibition, under the terms of a 1933 act that was subsequently strengthened by Act 173 of 1939. Ark. Stats., §§ 48-518 and 48-823. But in 1942 the voters of the state as a whole adopted the initiated act upon which the present petition is based. This act defines intoxicating liquor as including any beverage containing more than one half of one percent of alcohol by weight. Ark. Stats., § 48-802. It then expressly declares that the act shall be so construed as to permit the qualified voters in any area “at one election to determine whether or not all alcoholic beverages, including all kinds and types of whisky, beer, and wine, shall be manufactured or sold . . .” Ark. Stats., § 48-806. In the face of this unmistakable language it cannot be reasonably supposed that the present petition is not authorized by law.

Reversed, the mandate to issue immediately.


author: Paul Ward, Associate Justice. Justice Millwee

text:
    Washington National Insurance Company v. Commissioner of Insurance, Harvey G. Combs.
    5-1048
    294 S. W. 2d 486
    Opinion delivered October 29, 1956.

      Burton P. Sears and Rose, Meek, House, Barron & Nash, for appellant.

      Perry V. Whitmore, for appellee.
   Paul Ward, Associate Justice.

This controversy arises out of a complaint made by Mr. John Greene, a life insurance agent, to Harvey G. Combs, State Insurance Commissioner, charging the Washington National Insurance Company with unfair trade practices in that said Company had violated certain provisions of Ark. Stats. § 66-1701 to § 66-1713. As provided in the said statutes, the Commissioner heard testimony by both sides and ruled that the Washington National Insurance Company (hereinafter sometimes referred to as the Company) was guilty of acts amounting to unfair trade practices, and ordered it to cease and desist from engaging-in such acts. This cause is now on appeal from the Chancery Court of Pulaski County which sustained the Commissioner’s findings.

Factual Background. For a better comprehension of the issue here involved we set forth below the events and circumstances leading up to the filing of the charges above mentioned, including therein only such facts as are uncontroverted.

John Greene is an insurance agent and for something like 25 or 30 years he has been so engaged, during which time he has represented different companies. In 1948 he learned that Dr. George S. Benson, President of Harding College at Searcy, was starting a drive to raise $1,000,000 for the support of his college, and Greene, who was an agent for the Washington National Insurance Company at the time, persuaded Dr. Benson and his college board to take out a term insurance policy in the amount of $1,000,000. For writing this business Greene received a commission of $6,781.41. It is shown that in 1937 one of the general officers of the company had made a donation to Harding College and that he and other officers had consistently contributed liberal amounts to the college in the years that followed. Sometime after this policy was issued Greene became dissatisfied with the commission which he received from the Company and, motivated by this dissatisfaction perhaps or if not then for other reasons, had a falling out with the Company, resulting in a severance of relationships. Following this, some two or three years later, Greene filed a complaint against the company before the Insurance Commissioner and asked that their license be revoked. The Company’s license was not revoked and Greene states that he asked the Commissioner not to do so, but he also states that he recognizes that just making the charges is one of the worst things that could happen to an insurance company.

In the early part of 1955 Greene learned that Dr. Benson was fixing to start another campaign to raise $2,000,000 for the college. He called on Dr. Benson and asked to write him an insurance policy for $1,000,000. Dr. Benson was agreeable to the idea but stated that he desired the Washington National Insurance Company to be given the business. Greene explained that he had made inquiry of Mr. Boy Beagan, local general agent for the Company, and of Harvey G. Combs, the Insurance Commissioner, and that he had learned that the company could not write the policy in question, principally for the reason that Benson was 56 years old, or one year over the limit. At Dr. Benson’s suggestion Greene contacted Dr. L. M. Graves in Memphis and Mr. C. L. Ganus in New Orleans (President and Past President of the Board of Trustees). In each instance Graves and Ganus were agreeable to the idea but each of them expressed the desire that if possible the business should be given to the Company. In each instance it was explained by Greene that the Company could not write the policy. After Greene had obtained an application blank signed by Benson for the insurance policy and after he had received checks from Benson for the premium, it was learned by Dr. Benson that the Company was able and willing to write the policy. Thereupon it was agreed by Benson, Graves and Ganus that the application and checks given Greene should be cancelled and the policy given to the Company, and Greene was notified to this effect.

The Statutes. Section 66-1703 states that no insurance company shall engage in any trade practices which is defined by the Act to be ‘ ‘ an unfair method of competition or an unfair or deceptive act or practice . . .” The following section defines 8 different classifications of “unfair methods of competition and unfair and deceptive acts.” Although, as hereafter shown, the complaint against the Company in this instance makes no definite charge by reference to the statute it is assumed that such was the intention. Sub-section 4 refers to coercion or intimidation tending to result in unusual restraint or, a monopoly in, the insurance business; Sub-section 7 forbids discrimination between individuals of the same class and expectation of life in the rates charged and in the general provisions of the policy, and; Sub-section 8 prohibits the rebate of premiums. Section 66-1707 provides that if the Commissioner finds that any insurance company has violated any provisions of the act he shall order it to cease and desist from so doing. The act also provides that the findings of the Commissioner shall be sustained if they are supported by substantial evidence.

The Commissioner’s Findings. The findings of the Commissioner, consisting of 8 pages in the record, discuss at great length certain phases of the testimony which, in our opinion has no-direct bearing on the guilt or innocence of the Company. It concludes with ordering the Company to “cease and desist from engaging in such methods of competition, acts, and practices as was resorted to in procuring the policy . . .” in question. It does not specify what section of the statute the Company is supposed to have violated. However after a careful reading of the Commissioner’s findings we have concluded that the Company is charged with engaging in unfair trade practices for the following reasons and in the following particulars: (a) The Company was guilty of “unfair treatment to agents and unfair dealings between (insurance) companies”; (b) The Company is “guilty of committing an act of coercion or intimidation in this case”; (c) The Company offered to give the agent’s commission to Harding College, and; (d) The Company was not qualified to write the policy in question.

In our opinion there is no substantial evidence to show that the Company was guilty of any of the charges mentioned above. In fact it seems to us that it was apparent to the Commissioner that the testimony was not entirely satisfactory. In one instance the Commissioner in discussing the amount of commission the Company allowed its agent in this case, stated: “I feel that the above evidence is sufficient to convince any one that something took place along the line that has not been fully disclosed. ’ ’ Again, in reference to the charges as a whole, the Commissioner stated: “I am convinced that an inducement and a consideration within the meaning of Section 66-1704, Ark. Stats. 1947, entered into Washington’s issue of the 1955 policy which has not been fully disclosed . . .”

(a) It is not clear to us just what the Commissioner had in mind with reference to unfair treatment to agents. In this connection he stated: ‘ ‘ The very life and existence of the insurance business depends upon fair treatment to agents and their dealings between companies. I cannot place my stamp of approval upon the Company’s actions in this matter. To the contrary I consider such actions as unfair and deceptive and unlawful. ’ ’ If the reference is to the fact that the Company’s general agent, Boy Beagan, received only $600 commission for writing the policy in question, we cannot see where that has any bearing on the question of unfair trade practices, and it surely does not adversely affect policyholders. Certainly it was of no concern to Greene or Benson. Beagan was not a writing agent, and the undisputed testimony is that he did practically nothing to secure the business and that the $600 was satisfactory to him. If the reference is to the unfair treatment accorded Greene by the Company, then we can find no evidence to support the charge. If Benson in any way misled or mistreated Greene that would be a matter of concern to them only. The undisputed evidence in this case shows that Greene well knew he did not and could not represent the Company, and the Company was in no way obligated to him at any stage of the proceedings. The .testimony fully discloses that there can be no question about this fact.

(b) Coercion. We can find absolutely nothing in the testimony to substantiate the charge that the Company coerced Benson or the Board of Trustees of Harding College to take out the insurance policy in question. Again the testimony is undisputed that the Company had written Benson in 1948; officers of the Company had in years past made liberal donations to Harding College; The Company did nothing to induce Benson to take out this policy; Dr. Benson, Dr. Graves and Mr. Ganns all stated that they wanted the Company to have the business, and this is verified by Greene, and; The business was handed to the Company without any solicitation or effort on its part.

(c) It is charged that the company (presumably in violation of sub-section 8 of Section 66-1704 of the Ark. Stats.), in order to secure this business gave or promised to give the commission (presumably payable to an authorized writing agent) to Harding College. The only testimony that in any way substantiates this charge is Greene’s statement that Benson said that the Company said it would give the commission to the college. It is disclosed that this statement by Benson was made in connection with a telephone call which Dr. Benson made after the policy had already been given to the Company in an effort to accommodate Greene. Either at Greene’s request or upon Dr. Benson’s own initiative he called an official of the Company in Chicago and asked him if he would be willing to give the commission to Greene. The official’s reply over the phone was to the effect that he wanted nothing to do with Greene and, furthermore, that if he was going to give the commission to anybody he would prefer to give it to Harding College. Dr. Benson and all of the officials of the Company that testified state positively that no commission was given to Harding College as a result of this policy being written. All the facts and circumstances discredit the implication of the hearsay testimony given by Greene. At the time the question of commission was raised the Company had already been given the policy: The Company was under no obligations to Benson or the college, but, on the other hand Benson was under obligations to the Company for past donations; there is absolutely no evidence in the record that the college did in fact receive the commission— all the evidence being just to the contrary, and; why, if the Company bad already given tbe commission to the college, would Benson have asked that it be given to Greene ?

(d) As we read the record it is abundantly clear that the Company was qualified to write the policy in question and that it violated no provision of the statute in doing so. Although the Company’s rate book on file with the Insurance Commissioner did not contain the description of the policy of this kind for a person 56 years old (one year older than shown in the rate book), the uncontradicted testimony shows clearly that this Company and many other companies have the right, and make it a practice, to deviate in some respects from the rate book in special cases such as the one presented here. Mr. Mullins, Vice President of Washington National Insurance Company, stated that it was common practice among all insurance companies, in unusual instances, to change or modify standardized policies so long as they adhered to the rate which had been filed; that his company is consistently issuing policies that are over the specified limits both as to ages and amounts; that this is pretty much standard practice; that 95 per cent of the 800 life insurance companies operating in the United States will occasionally, and many of them quite frequently, make exceptions to their published underwriting practices. He also stated that insurance companies had the right to make certain changes without notice. Mr. Greene himself acknowledges that the rate book of one of his own companies — The New York Life — contains this clause: “Company’s premium rates, policy values, underwriting limitations and rules are subject to change without notice with respect to policies issued thereunder. ’ ’

It seems clear to us that the premium charged by the company in this case was based on the schedule of rates which it had in force at the time. The Company’s schedule, shown in the record and a part of the policy in question, shows a schedule of rates from age 20 to 69. According to this schedule the premium for $1,000 for a person 56 years of age is $23.64. From this it follows that the premium on a policy'for $1,000,000 would he $23,640 which is the amount charged in this instance by the Company.

As indicated above the statutes in question define 8 separate and distinct classifications of unfair practices. Also we have stated that the alleged charges preferred against the Company in this instance were somewhat general and not definitely classified according to the statute, hut we have discussed them above as being so classified. Section 66-1709 deals with unfair practices and unfair methods of competition which are not defined in the statute. We see no occasion for discussing the charges under‘this classification. If however the charges were considered under the latter classification it would require more evidence to sustain them as provided by paragraph (d) where it is stated that the Commissioner’s findings must be supported by the weight of the evidence.

In our consideration of this case we recognize the duty and responsibility of the Insurance Commissioner to protect the general public against unfair practices by Insurance companies, and that he was merely trying to discharge that duty in this case. On the other hand we are forced to recognize that the charge against the Company in this case is a serious one and should not be sustained on suspicion or innuendoes but should be supported by substantial evidence. Mr. Greene, a man of vast insurance experience, admits that there is nothing more damaging to an insurance company’s reputation or standing than to have a complaint lodged against it with the Insurance Commissioner. We recognize that Mr. Greene demonstrated ingenuity and expended considerable time and effort in attempting to write this insurance policy in the companies which he represented, and that he received no remuneration therefor, but this constitutes no lawful reason for punishing the Washington National Insurance Company. In our view it is immaterial' that Mr. Greene was sincere in representing to Dr. Benson and the members of the Board of Trustees that the Washington National Insurance Company could not legally write the policy they desired. We can understand why he thought the whole matter should be brought to the attention of the Insurance Commissioner for a full investigation, and we have no inclination to criticize him for doing so. On the other hand charges and investigations alone do not convict.

Reversed and dismissed.

Justice McFaddin disqualified and not participating. Justice George Rose Smith not participating.

Justice Millwee

(dissenting). I would affirm the findings and orders of the Insurance Commissioner and the Chancellor. In reversing their actions the majority conclude there was no evidence to support the charges filed. This is not surprising since they accept the testimony of the Company’s officers and other witnesses as 11 uncontroverted, ’ ’ and ‘‘ discredit ’ ’ the evidence offered by John H. Greene as “hearsay” and supported only by “suspicion or innuendoes”.

Despite the lopsided view of the testimony by the majority, a few facts are crystal clear. Even the majority concede that Mr. Greene expended much money, time and effort in negotiating with the College for the policy in question. The representation by Mr. Greene that the Company did not write the type policy desired by the College was made after the most painstaking inquiry and research and in perfect good faith. Not only did he check the Company’s rate books including its current filings with the Insurance Department but he verified such information by checking the leading insurance manuals. In addition, and to be certain, he made the same inquiry of the Company’s general agent at Little Rock and the latter admitted that he told Mr. Greene that the Company did not issue the policy.

But: Who wound up with the agent’s fee or commission for writing the policy finally issued and that Mr. Greene worked so hard and diligently to earn? The very same general agent who had led Mr. Greene to believe that the Company did not write the policy, and who, in reference to the commission, frankly stated: “I had done nothing to earn it. ” It is true that the fee paid was much less than a normal commission but Mr. Greene had every right to believe the Company donated the balance of a normal commission to the College just as the agent, Ferguson, indicated it would. Like the Commissioner, I consider such actions on the part of the Company, “Unfair, deceptive and unlawful,” under our statute. For such actions the Company has been neither convicted nor penalized but is only mildly • reprimanded and warned to cease and desist. Instead of repudiating the efforts of Mr. Greene, the Commissioner and the Chancellor to keep the life insurance business in this state clean, this court should be anxious and ready to uphold them. I, therefore, respectfully dissent.


author: Sam BobiNSON, Associate Justice.

text:
    Brown v. Bennett.
    5-1038
    294 S. W. 2d 492
    Opinion delivered October 29, 1956.

      R. H. Peace, for appellant.

      William H. Drew, for appellee.
   Sam BobiNSON, Associate Justice.

The appellant, A. T. Brown, filed this suit to confirm title in him to 5 acres of land he claims as an oral gift from his brother, H. R. Brown, who died in 1950. The appellees, Gladys P. Brown and Marjorie Brown Woods, are the widow and daughter, respectively, of H. R. Brown. In 1951, they conveyed to appellee, A. R. Bennett, 80 acres of land which includes the 5 acres in issue here. After considering all of the evidence, the chancellor dismissed the complaint.

Appellant testified that his deceased brother gave him the 5 acres in question, hut his testimony is so confused and contradictory that it is hard to follow. He describes the land he claims his brother gave him as being one acre wide, hut in his complaint he describes it as being one-half acre wide. He says he built a house on the land, but the house in question is on the land of Garfield Brown, another brother. At another point, he testified he built the house before the time he claims W. R. Brown gave him the land. Appellant contends that he was in possession of the land at the time appellee Bennett purchased it from the widow and daughter of W. R. Brown, and that such possession was notice of his claim of ownership ; but the house where appellant contends he lived at the time is not on the land bought by Bennett.

Mrs. Bertha Rice, Mrs. Etta Brown and Mrs. Alice Quinn, sisters of appellant, testified in effect that H. R. Brown, during his lifetime, told them he had given 5 acres of land to their brother, A. T. Brown.

The evidence is not convincing that A. T. Brown made any substantial improvements on the 5 acres he now claims as a gift from his brother. This court said, in Akins v. Heiden, 177 Ark. 392, 7 S. W. 2d 15: “This court is committed to the rule that an oral gift of land is not enforceable unless there is actual possession delivered, followed by the making of valuable improvements by the donee.” Citing “Young v. Crawford, 82 Ark. 33, 100 S. W. 87; Brown v. Norvell, 96 Ark. 609, 132 S. W. 922; Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; and Hunt v. Boyce, 176 Ark. 303, 3 S. W. (2d) 342.”

Appellee Bennett testified that he had no notice whatever that A. T. Brown was claiming ownership of any part of the 80 acres at the time of his purchase from the widow and daughter of W. R. Brown. Bennett also says that some time after his purchase of the land he'was inspecting a house on the property he bought when A. T. Brown came over and said “the womenfolk” owed him $4,000 for looking after W. R. Brown’s stock daring his last illness, and, at that time, A. T. Brown made no claim whatever as to owning any part of the land.

When all of the evidence is considered, it appears that the chancellor’s decree is correct and is, therefore, affirmed.


author: Lee Seamster, Chief Justice.

text:
    Grubbs v. Rowland, County Clerk.
    5-1205
    296 S. W. 2d 201
    Opinion delivered October 30, 1956.

      Clifton Bond, for appellant.

      John F. Gibson and Ike Murry, for appellee.
   Lee Seamster, Chief Justice.

The appellant, as a citizen and taxpayer of Bradley County, Arkansas, has appealed from a decree of the Bradley Chancery Court, directing the County Clerk to amend his Certificate of Sufficiency of a petition calling for a local option election. The court also ordered “that the Board of Election Commissioners of Bradley County, Arkansas shall cause to he held a local option election and shall place upon the general election ballot to be voted on November 6, 1956, the following words and/or phrases, ‘For the manufacture or sale of intoxicating liquor’ — ‘Against the manufacture or sale of intoxicating liquor.’ ”

For reversal, the appellant contends: (1)' The calling of the election is barred by the two year statute of limitations set out in Arkansas Statute 48-802; (2) The Petition praying for an election is not prepared in compliance with Initiated Act No. 1 of 1942 as amended by Act 15 of 1955.

It is stipulated by the parties that a local option election, on the wet and dry issue, was held in Bradley County, Arkansas, on August 7,1954; that the county had permitted the sale of intoxicating liquors before the election but voted dry at said election; that due to a contest of that election, intoxicating liquors were sold in the county until February 6,1956, when the licenses and permits for sale of intoxicating beverages were cancelled by the Department of Alcoholic Beverage Control, pursuant to a decision and judgment of the Arkansas Supreme Court.

The controlling statute in this case is Arkansas Statutes, Section 48-802, which provides, in part: “If at said election a majority of the electors voting at said election vote ‘For the Manufacture or Sale of Intoxicating Liquors, ’ then it shall be lawful for the Commissioner of Revenues of the State of Arkansas to continue to issue licenses, or permits, for such manufacture or sale within said designated territory as if no election liad been held. If a majority of said electors voting at said election vote ‘Against the Manufacture or Sale of Intoxicating Liquors,’ then it shall be unlawful for the Commissioner of Revenues of the State of Arkansas, or any county or municipal official to issue any license, or permit, for the manufacture, sale, barter, loan or giving away of any intoxicating liquor as defined in this act, for at least two (2) years, and thereafter, unless the prohibition shall be repealed by a majority vote as provided for in Section 1 (48-801) of this act. In either case, a period of two (2) years at least shall elapse before another election on the same subject may be held in the territory affected. * # ”

The language of the above mentioned statute clearly states that a period of two years shall elapse before another election on the same subject may be held in the territory affected. In other words, it is lawful to have a local option election every two years provided there is a substantial compliance with the statute.

The Local Option Petition filed herein recites, “We the undersigned legal voters of Bradley County, Arkansas, pray that an election be held in Bradley County at the regular general election to be held in said county on November 6, 1956, as to whether or not license shall be granted for the manufacture, sale, bartering, lending and giving away intoxicating liquors in Bradley County, Arkansas.”

The language contained in the petition is in substantial compliance with Section 48-801, Arkansas Statutes, which is Section 1 of Initiated Act No. 1 of 1942. The only variance in language is that the petition says, “lending” and the Act says “loaning.” However, this slight variance of language does not affect the legality of the petition.

The petition further set out that it was “An Act to Legalize the Manufacture, Sale, Bartering, Lending and giving away of Intoxicating Liquor within Bradley County, Arkansas.” The trial court held that portion of the petition invalid, due to the fact there is a general law in this State which governs the manufacture and sale of intoxicating liquors. This general law is held in abeyance when a county votes dry and is reactivated when a county votes wet. A county cannot pass a local law while a general law covering the same subject is in effect.

The trial court correctly decreed that the County Clerk should amend his certificate to the election board to eliminate the question of the initiated local act from the ballot. The court was also correct in holding that the local option issue should be certified to the Board of Election Commissioners to be voted upon under the designation, “For the manufacture or sale of intoxicating liquors, or, Against the manufacture or sale of intoxicating liquors.”

The petition was found to contain signatures of more than fifteen percent of the legal voters of Bradley County and there is no question raised as to the sufficiency of the petition in this regard.

We hold that fifteen percent of the legal voters of any county can call a local option election, at the time of any general election, by filing a petition within the time provided by law, with the County Clerk praying that an election be held to determine whether or not license shall be granted for the manufacture, sale, bartering, loaning or giving away of intoxicating liquor. If the Clerk finds that fifteen percent or more of the legal voters in said county have duly signed the petition it is his duty to certify the sufficiency of the petition to the County Board of Election Commissioners and they are required to place the question on the general election ballot in the following way, “For the manufacture or sale of intoxicating liquor” and “Against the manufacture or sale of intoxicating liquor. ’ ’

Local option elections may be held at the time of holding the general elections, which is every two years.

Decree affirmed.


text:
    Broyles v. Summers.
    5-1031
    294 S. W. 2d 766
    Opinion delivered November 5, 1956.

      Terral & Rawlings, for appellant.

      Reed Williamson, for appellee.
   Lee Seamster, Chief Justice.

On September 11,1954, the appellants, Paul E. Broyles and Elizabeth Broyles, his wife, through their agent, P. W. Broyles, contracted to sell a house and lot in Jacksonville, Arkansas to ap-pellees, W. J. Summers and Alma Summers, his wife, for the consideration of $3,000. Under the terms of the purchase agreement appellees paid $100 down and agreed to pay $50 per month beginning October 20, 1954, until a total of $500 had been paid, with interest, at which time the appellants were to execute a deed to appellees and retain a lien for the balance of the purchase price. The appellees took possession of the property and made the monthly payments in accordance with, the terms and conditions of the contract, np to and including the payment of May 20, 1955.

Thereafter, on June 20,1955, the appellees, with full knowledge and permission of the appellants, assigned the contract to one Tony Liemke, Jr. and Betty Liemke, his wife. The appellees executed and delivered a warranty deed to the Liemkes, whereby appellees conveyed their interest in the property for a consideration of $350; $100 being paid down and a lien retained for the balance. The deed further provided that the Liemkes assume and agree to pay the unpaid balance due appellants by appellees under the terms of the purchaser’s agreement. The Liemkes executed a note to appellees in the sum of $250, whereby the vendors lien on the land was acknowledged.

The record reveals that the Liemkes made one payment — June 20, 1955 — to the appellants, for which they received proper credit. On July 20, 1955, the Liemkes delivered to appellants a check for the July payment, but before appellants could cash the check the Liemkes notified them that they had stopped payment on the check and did not intend to make any further payments. After the Liemkes had notified appellants of their intentions, they gave to appellees (1) the purchase agreement, (2) the warranty deed to the land, and (3) the key to the house.

The appellees contend that on July 23,1955, they delivered to appellants their check for the July payment, said check being accepted and retained over night by appellants and returned the next day with the explanation that appellants had decided to re-possess the property.

■ The record reveals that when appellees made their May 20, 1955 payment, they had paid a total of $500 on the principal and according to the terms of the contract of sale they were entitled to a warranty deed from the appellants. The purchaser’s agreement provided that • appellants were to retain a vendors lien for the unpaid balance and would furnish an abstract of title certified to the date of the agreement showing merchantable title. The appellants failed to comply with these provisions of the contract.

On Angnst 8, 1955, the appellees tendered to appellants the entire balance due under the purchaser’s agreement. This payment was refused by appellants and ap-pellees placed the money in escrow for the benefit of appellants.

The appellees filed the instant suit in Pulaski Chancery Court, Second Division, on September 2, 1955, requesting specific performance on the sales contract. The trial court entered a decree in favor of appellees, ordering specific performance of the contract. This appeal follows.

For reversal, appellants cite the following points:

“First: The Summers had assigned all of their interest in the property to the Liemkes.
“Second: The Summers had executed and delivered to the Liemkes their warranty deed conveying the property to the Liemkes.
“Third: Pursuant to a sale of the property by the Summers to the Liemkes, and in consideration thereof, the Summers surrendered possession of the property to the Liemkes who later cancelled the contract of sale and returned the property to the Broyles..”

We find that the trial court was correct in ordering specific performance on the contract.

(1) The appellees and the Liemkes, by mutual consent, effectively rescinded their contract and the assignment of the sales contract. The verbal rescission of the assigned contract coupled with delivery thereof, was a complete re-assignment of the contract. The appellees were the real parties in interest. Chapman and Dewey Land Company v. Wilson, 91 Ark. 30, 120 S. W. 391.

(2) The deed executed by appellees to the Liemkes was not effective due to the fact that it was not effective until appellants complied with the terms of the contract and issued a deed to appellees.

(3) The Liemkes would have no authority to cancel the sales contract with appellants. They had failed to pay appellees for their interest in the contract and appellants had never released the appellees from the unpaid balance due on the contract. Furthermore, the appellants had breached the terms of the contract by failing to issue a deed to the appellees.

The preponderance of the evidence shows that the Liemkes never attempted to cancel the sales contract with appellants, but to the contrary turned the contract back to the appellees, whom they had not paid. Appellees retained a lien on the property for the balance due them by the Liemkes. The appellees were not in default and never in any way breached the sales contract with appellants.

We find that appellants are required, under the terms of their contract with appellees to make and deliver to appellees a warranty deed to the land. They will also be required to furnish appellees an abstract of title showing a merchantable title to the land. When appellants have complied with these provisions, they will be entitled to the balance of the purchase price.

The decree is affirmed.


author: J. SeaborN Holt, Associate Justice. Paul Ward Ed. F. McFaddiN, Associate Justice

text:
    DePotty v. DePotty.
    5-1037
    295 S. W. 2d 330
    Opinion delivered November 5, 1956.
    [Rehearing denied December 3, 1956.]

      Van Johnson, for appellant.

      LeRoy Autrey and Kemiis K. Williams, for appellee.
   J. SeaborN Holt, Associate Justice.

This is an action by appellant seeking to annul his marriage to ap-pellee. Prom a decree denying and dismissing his prayer for annulment comes this appeal.

There appears to be little if any dispute as to essential facts. The parties were united in marriage in the border city of Texarkana on the Arkansas side by a duly ordained minister, whose credentials are not questioned, and the marriage was solemnized in the presence of witnesses according to the forms and customs of the church to which the minister belonged. The parties were fully competent to marry. Prior to the marriage requisite blood tests were had. They lived together for some 16 months prior to the present suit, holding themselves out as husband and wife. Prior to the marriage it appears undisputed that appellant borrowed. from his wife approximately $3,000, which he had not repaid at the time of the marriage. It appears that all requirements for a valid marriage under our marriage statutes',; § 55-201 —55-236, Ark. Stats. 1947, were fully complied with, except the marriage license used was obtained on the Texas side of Texarkana in Bowie County, Texas. The parties at all times, until discord arose shortly before divorce proceedings were filed, lived together in good faith, cohabited as husband and wife, and believed that their marriage was legal.

The question presented for our determination, says appellant, is “whether residents of this state may legally contract marriage in this state with a license issued by a foreign state.” Arkansas Statutes § 55-201 provides for the procurement of an Arkansas, license by those contracting marriage. But we have n.o statute providing that a marriage is void where no license is obtained. Here, a marriage license was issued by tbe State of Texas, but no Arkansas license was acquired. If § 55-201 is mandatory, tbe marriage is void. On tbe other band, if tbe statute is merely directory, tbe marriage is valid. Tbe appellant, in bis contention that tbe statute is mandatory relied largely on Furth v. Furth, 97 Ark. 272, 133 S. W. 1037. Tbe issue in that case was whether a common law marriage is valid in this State. In dealing specifically with that issue, tbe court said: “. . . we bold our statutes regulating and prescribing tbe manner and form in which marriages may be solemnized are mandatory and not directory merely. In short, we bold that tbe doctrine of so-called common law marriages has never obtained or become a part of tbe laws of this State.” In tbe Furth case, there was no marriage ceremony of any kind, whereas, in tbe case at bar, there was a ceremonial marriage performed by a duly qualified minister.

Although there are some cases to tbe contrary, tbe great weight of authority bolds that marriage license statutes are merely directory. In Feehley v. Feehley, 129 Md. 565, 99 Atl. 663, tbe court said: “There are differences of judicial opinion in various jurisdictions as to what are tbe essential features of a marriage under tbe rules of the common law, but tbe courts are generally in accord upon tbe proposition that a statutory provision for a license to marry shall not be regarded as mandatory, and vital to tbe validity of a marriage, in tbe absence of a clear indication of a legislative purpose that it should be so construed.” Tbe Supreme Court of Nebraska said in Melcher v. Melcher, 102 Neb. 790, 169 N. W. 720: “A marriage may be annulled when one of tbe parties is under tbe age of legal consent at tbe suit of tbe parent entitled to tbe custody of such minor . . . But that no license was obtained or that tbe license was obtained fraudulently is no ground for tbe annulment of a marriage.” “Compliance with license statutes is not generally essential to tbe validity of a marriage, at least in tbe absence of statutory provision expressly making it so essential,” 35 Am. Jur. 195. ‘£ Statutes in tbe various jurisdictions usually require a license to be obtained. While, according to some authorities, such a statute is mandatory and a marriage performed without the required license is void, the general rule with regard to the construction of such statutes is that they are directory merely, and do not destroy the validity of a marriage contracted contrary to their provisions, unless it is provided, expressly or by necessary implication, that the marriage shall be invalid.” 55 C. J. S. 857. A long list of cases from many different states are cited in support of the text. We believe the better view is that of the majority.

Affirmed.

Justices MoPaddxN and Millwee dissent.

Justice Ward concurs.

Paul Ward

(concurring). My concurrence in this opinion springs from the hope that it will not in the future be misconstrued. It should be obvious to everyone that it deals with an important and sacred item of our social structure.

In the first place, it is unthinkable that this court should hold it has absolutely no power to decree valid a marriage in some extreme situation that might hereafter arise. For instance, let’s suppose that these people had lived together for 40 years and had been blessed with several children who in turn had married and reared children. For this court to hold that they were never married would portend consequences of serious magnitude.

On the other hand I feel sure that this court does not desire to announce categorically that a marriage license is not necessary, or to put its stamp of approval upon mere cohabitation and dignify that relationship with the status of a legal marriage. Such is not the intent of the opinion in this case.

I feel sure that the opinion in this case intends only to approve a marriage relationship [without license] only where; (a) the parties engaged in a ceremony substantially in compliance with that prescribed by the statutes; (b) the parties to the ceremony acted in good faith and believed that they were complying with all the provisions of our statutes; (c) they consummated the ceremony by cohabitation, and; (d) the proof of (a), (b), and (e) mentioned above is clear and convincing.

It is my thought that, in this opinion, our court has gone further than it has ever gone before in approving what might be termed a ceremonial marriage. It is easy to invision how this new power assumed and sanctioned by the court could be misconstrued and mis-applied.

Therefore, it seems to me that the majority opinion should have laid more stress on the items above mentioned, and, I think, it should have pointed out that this court will"look with disfavor on a “marriage” without a license and will sanction it only if unusual circumstances and the social welfare clearly dictate such action.

Ed. F. McFaddiN, Associate Justice

(dissenting).

The majority opinion in this case will have a far-reaching effect on our marriage laws. It not only nullifies a portion of our Statutes, but also over-rules our cases and creates confusion and uncertainty regarding marriages. So I am compelled to dissent.

The validity of a marriage — in the absence of any questions of public policy in the domiciliary state — is determined by the law of the state wherein the marriage is contracted. So Arkansas has the right — in fact, the duty — to determine what is a valid marriage in this State. Our laws — as found in § 55-201 et seq. Ark. Stats. — provide for the issuance of a license, form of the license, applicants being required to take blood tests, sobriety; waiting period, performance of the marriage ceremony, and returning of the certificate of marriage to the issuing County. In short, up to the date of this case, if anyone had wanted to see about a marriage, the information could have been found in the office of the county clerk wherein the marriage license was issued. Hereafter where will we look for the recording of a marriage performed in Arkansas? According to this opinion, we will have to look in one of the county clerk’s offices in Texas. We might just as 'well have to look in Oregon, Maine, California or Mexico, and then consult every preacher in Arkansas to see if he had performed such a marriage in this State on a license issued in some other state. No record of such a ceremonial marriage in Arkansas on a license from another state could he found in any county courthouse in Arkansas.

There have existed for many years throughout the States of the American union two types of marriages: (a) a common-law marriage; and (b) a licensed (or statutory) marriage. A common - law marriage exists when a man and woman agree to live together and publicly do so. A licensed marriage — or statutory marriage —exists when a man and woman obtain a license from the proper authority to become husband and wife and then have a ceremony of marriage and return the certificate of marriage to the proper, recording office. By Act No. 127 of 1875 (now found in § 55-201 Ark. Stats.), the Arkansas Legislature provided:

“All persons hereafter contracting marriage in this State are required to first obtain a license from the Clerk of the County Court of some County in this State.”

It will be observed that this Statute says all persons contracting marriage in this State; and it says that such persons are required to first obtain a license; and it says that such license must be obtained from the Clerk of the County Court of some County in this State. Now, in the case at bar, the license was obtained from the County Clerk of a County in Texas; and so these parties did not comply with the law. In the case of Furth v. Furth, 97 Ark. 272, 133 S. W. 1037, the Arkansas Supreme Court in 1911 held that a common-law marriage could not be validly contracted in this State and furthermore held that compliance with our Statutes “is mandatory”. Judge Hart used this language in this opinion:

“Because the marriage relation is the source from which arises the home and the family, we have concluded to decide this question, rather than pass upon the preponderance of the evidence in the case ...
“It will be seen that, before the common law was adopted here, statutes had been enacted which regulated marriages, and which prescribed the manner and form in which they might he solemnized. Such statutes having directed that marriages should be solemnized in a particular manner before certain authorized persons, that way is exclusive; and we hold our statutes regulating and prescribing the manner and form in which marriages may be solemnized are mandatory and not directory merely.” (Italics our own.)

That case of Furth v. Furth has remained the cornerstone of our marriage law; and we cited it with approval as late as Woods v. Bell, 218 Ark. 307, 236 S. W. 2d 63, decided in 1951. But in the present ease the majority holds that our Statute which says that a. license is required, is not mandatory, even though we held in Furth v. Furth as above quoted, our Statutes ‘ ‘. . . are mandatory and not directory merely.”

To sustain its conclusions in the case at bar, the majority says: “Although there are some cases to the contrary, the great weight of authority holds that marriage license statutes are merely directory.” Of course there are some eases to the contrary; but the point is that the Arkansas Supreme Court has directly held that our marriage license statute is mandatory; and so I make the point that the present majority opinion over-rules our cornerstone case on the necessity of a marriage license being issued in this State. To sustain its holding, the majority cites only two cases and two general statements of the law. I discuss each of these:

1. The first case that the majority cites is Feehley v. Feehley, 129 Md. 565, 99 Atl. 663, L. R. A. 1917 (c) 1017. Here is the salient portion of the headnote to the case in 99 Atl. 663:

“Where two Catholics, who had been divorced, called in a- priest, who went through a ceremony intended to be an essential feature of the new marital agreement into which the parties were entering, the priest and the man and woman understanding that he was officiating in order that they might live together in lawful wedlock, the validity of the remarriage was not open to question.”

There are several reasons why this Maryland case should not even he persuasive in Arkansas; hut one reason is sufficient to give, because it is shown in the opinion itself. It is this: the Maryland Court said in Feehley v. Feehley that it could reach the conclusion there reached because, under the laws of Maryland, the marriage statutes were directory and not mandatory. But in Arkansas we have held that our marriage license statutes are mandatory; and we cannot continue to hold the marriage license statutes mandatory and follow a Maryland case based on the opposite holding. I submit that this Maryland case is absolutely no authority for an Arkansas Court to hold that people can get a license in Tesas and have the marriage ceremony performed in Arkansas; and that is the point which the majority is holding in the case at bar.

2. The second case cited by the majority to sustain its conclusion is that of Melcher v. Melcher, 102 Neb. 790, 169 N. W. 720, 4 A. L. R. 492. But it must be remembered that common-law marriages are recognized in Nebraska; so certainly a ceremonial marriage without a license would be recognized. The Nebraska case is no authority to justify the over-ruling of Furth v. Furth.

3. The majority next cites from 35 Am. Jur. 195 this quotation: “Compliance with license statutes is not generally essential to the validity of a marriage, at least in the absence of statutory provision expressly malting it so essential.” To sustain that text, cases are cited from a number of American jurisprudents, some of which recognize a common-law marriage and others of which hold that the requirement for a marriage license is directory and not mandatory. I find no case which recognizes the validity of a ceremonial marriage as coming from a State that holds the marriage license is mandatory ; and that is exactly what we held in Furth v. Furth. The majority failed to cite 35 Am. Jur. 204, wherein the text reads: “In a number of jurisdictions, the statutory requirements as to the manner and formalities of marriage are regarded as mandatory, and a common-law marriage is not valid”; and the first case cited to sustain that statement is the Arkansas case of Furth v. Furth. Furthermore, it is interesting to note that the tendency of states is to abrogate the validity of common-law marriages by statute. For instance, in 35 Am. Jur. 206, the Statutes of California, Illinois, Kentucky and Louisiana are mentioned to sustain the statement that in some states the common-law marriage was first adopted by the courts but later abrogated by the statutes. In the present case, the majority is nullifying our Statute.

4. Finally, the majority, to sustain its holding, cites from 55 C. J. S. 857, to the effect that the general rule is that marriage license statutes are directory merely. Let us admit that most states so hold, and that many states also recognize the common - law marriage. The point is that in Arkansas since 1875 the law has been that persons desiring to be married in this State “are required to first obtain a license” from the Clerk of the County Court “of some County in this State”; and let it be remembered that in Furth v. Furth we held that Statute to be mandatory. The majority is now saying that even though the Statute was mandatory, still the marriage was valid.

As I see it, the majority is recognizing a hybrid state of marriage. Where is the authority for this Court to put validity into such a hybrid marriage ? Let us agree that it is an act of hardship to hold that these parties to this record are not married; but, if so, let the majority build some equitable estoppel in this one case rather than start us out on a new form of hybrid marriage. Merely because these particular parties were ignorant of the law is no excuse for upsetting our entire law regarding marriages. Ignorance may be bliss; but it does not excuse non-compliance with mandatory provisions of the law.

For the reasons herein given, I respectfully dissent.

       Here is some of the language from the Maryland opinion: “. . . the courts are generally in accord upon the prooosition that a statutory provision for license to maTy should not be regarded as mandatory . ..”; and again: “The princinle that such provisions are directory only has been adopted in Jurisdictions where a religious ceremony is not regarded as an essential element of a marriage according to the common law, and it would seem that in a state like our own, where this additional sanction and safeguard is required, there is even stronger reason for the rule that the validity of such a marriage should be sustained.”

       That common-law marriages are recognized in Nebraska can be learned by consulting an Annotation in 39 A. L. R. 538; and also by consulting Keezer on “Marriage and Divorce”, 3rd Ed., page 1065 et se,q.


author: Ed. F. McFaddik, Associate Justice.

text:
    Bruce v. Nicholas.
    5-1216
    294 S. W. 2d 772
    Opinion delivered November 5, 1956.

      Frank Sloan and W. B. Howard, for appellant.

      Ponder & Lingo, for appellee.
   Ed. F. McFaddik, Associate Justice.

The appeal in this Court was filed on October 29, 1956, and both sides were heard on the same day when the appellants presented their petition for an order to stay the election, set for November 6, 1956, on the issue of county seat removal. On October 30th, the Clerk of this Court notified the litigants:

“The Court voted that the election in this case, set for November 6th, be stayed and that no election be held on that day on the question of county seat removal. No bond is required as a. condition of such stay. This decision is effective immediately; but the Court will deliver a formal opinion in this case on November 5th.”

The present is the opinion above mentioned. By Act No. 85 of 1887, the General Assembly of Arkansas divided Lawrence County into two judicial districts to be called the “Western District” and the “Eastern District.” Trial courts in the Western District were to “. . . continue to be held at the county seat at Pow-háttan, as now provided by law”; and trial courts in the Eastern District were to be held “. . . in the town of Walnut Ridge, at a place to be provided hereinafter by the citizens of said District.” On October 1, 1956, there was filed in the County Court of Lawrence County by appellees (proponents of Walnut Ridge), a petition purporting to be signed by more than one-third of the qualified voters of all of Lawrence County, and praying for an election to be held in said County on the question of moving the county seat of Lawrence County from Powhattan to Walnut Ridge. This was a proceeding for county seat removal under § 17-201 et seq. Ark. Stats., which is the general statute for county seat removal. On October 2, 1956, the County Court made an order calling the election as prayed in the petition and ordered the election to be held at the same time as the General Election on November 6, 1956.

As soon as the appellants (proponents of Powhat-tan) learned of the order calling the election, they employed counsel and on October 16, 1956, these appellants filed in the County Court their “Remonstrance and Petition to Set Aside Purported Order Calling For Election.” Among other things, they claimed:

(1) That the Walnut Ridge petition for the election on the question of county seat removal was a proceeding under § 17-201 et seq. Ark. Stats.; that said law was not applicable to a county that already had two county seats, as they claimed Lawrence County had in the Eastern and Western Districts under Act No. 85 of 1887, as aforesaid; and that the only proceeding that could he had in Lawrence County would he under § 22-126 et seq. Ark. Stats., which relates to the method in which extra .judicial districts may he abolished in a county.

(2) That, even if the proceeding instituted by Walnut Ridge under § 17-201 et seq. Ark. Stats, was proper, nevertheless, the petition filed in the County Court was insufficient because it was not signed by the required one-third of the qualified voters of Lawrence County. The appellants listed in excess of six hundred alleged signers who, according to appellants, were not qualified voters; and on this point appellants substantiated their allegations by the affidavit of a person who had checked the list of signers against the applicable poll tax book.

Thus appellants raised a question of law and a question of fact. On October 16th the County Court denied the prayer of the remonstrants (proponents of Powhattan); but granted them an appeal to the Circuit Court of Lawrence County. The case was promptly filed in the Circuit Court on the next day; and a few days later appellants filed a petition in the Circuit Court for temporary restraining order to stay the election until the case could be heard on its merits.

The Circuit Judge of the Third Circuit, of which Lawrence County is a part, is the Honorable Andrew Ponder; and Judge Ponder was engaged in holding court in another county of the District, so appellants were unable to get a trial of the case or a hearing on their petition for temporary restraining order until they appeared before the Circuit Judge, Honorable Andrew Ponder, in chambers in Jackson County on October 25th, and sought to obtain from him an order staying the election until they could be heard on the merits. Judge Ponder refused the stay because of his understanding of some of our language in one of the opinions in the case of Ellis v. Hall, 221 Ark. 25, 251 S. W. 2d 809. This refusal by Judge Ponder was on October 25, 1956; and on October 29, 1956, the appellants (proponents of Powhattan) filed their appeal in this Court and prayed a temporary stay of the election until the case could be heard; and on October 30th we made the order first copied herein.

It is a fundamental idea of justice, originating in the Anglo-Saxon Law and incorporated in the English Common Law, and existing in our legal system today, that a litigant is entitled to a day in court and, upon exercising diligence, is entitled to a hearing of his case before judgment is rendered foreclosing his rights. In the case at bar, should the election take place and the vote favor removal, then the question of the sufficiency of the petition to call the election might become moot, and appellants would be deprived of their day in court on the sufficiency of the petition; so the law envisages time for a day in court on the hearing of the sufficiency of the petition. The appellants did not have such an opportunity in the County Court because the petitions were filed one day and the order made the next day and their remonstrance was over-ruled on demurrer and without a hearing on the merits. The appellants have been diligent and yet, within the short time in this case, have been unable to obtain a trial on the merits. If they had been guilty of any delay, the situation might be different; but we find no lack of diligence by the appellants.

This case can be heard in the Circuit Court on its merits in a very short time and then, if the questions of law and fact be decided in favor of Walnut Ridge, an election can be called at any time. This is not one of those cases where the election can only be every two years and at the same time as the General Election. We express no opinion on either the legal or factual questions here presented. What we are saying is that the appellants are entitled to have the case heard on its merits prior to the election; and, because of such views, we granted the stay of election.

Now we remand the cause to the Circuit Court, thoroughly confident that the Honorable Circuit Judge will hear the cause on its merits with prompt dispatch, so that all parties, with diligence, may have a day in court with right of appeal, and all within time to hold the election if the law and the facts show that such election should be held.

       Appellants raised other questions which may be considered on trial, below, but which we do not list here.

       Judge Ponder used this language: “Assuming, without deciding, that remonstrants have made a prima facie showing, the court rules that the Ellis v. Hall decision of the Arkansas Supreme Court is controlling; and, therefore, a prima facie case, if made, is insufficient to justify the court in granting a stay of said election.”

       That the idea of summons before trial originated in Anglo-Saxon Law is fully shown by Professor W. S. Holdsworth on page 103 of Volume 2 of his “History of English Law.” That the idea of a day in court came to us from the Common Law and is ingrained in our legal system is expressed in the case of Old Wayne Mutual Life Assn. v. McDonough, 204 U. S. 8, 51 L. Ed. 345, 27 S. Ct. Rep. 236. Por other cases discussing this fundamental idea, see “Day in Court” in “11 Words and Phrases,” page 119.

       In Beene v. Hutto, 192 Ark. 848, 96 S. W. 2d 485, it was held that in all cases arising under the Initiative and Referendum Amendment, the holding of the election rendered moot all questions as to the sufficiency of the petitions. As to whether this same rule is applicable in elections not within the scope of the Initiative and Referendum Amendment, we do not now decide; but see Horn v. White, 225 Ark. 540, 284 S. W. 2d 122; and Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d 26.


author: Ed. F. MoFaddiN, Associate Justice.'

text:
    DuPriest v. Anthony.
    5-1029
    294 S. W. 2d 769
    Opinion delivered November 5, 1956.

      Keith, Clegg & Eckert, for appellant.

      Walter L. Brown and Robt. C. Compton, for ap-pellee.
   Ed. F. MoFaddiN, Associate Justice.'

This is a boundary line dispute, and the only point urged by the appellants is that the finding of the Chancery Court is against the preponderance of the evidence.

Section 1, Township 16 South, Eange 16 West in Union County, Arkansas, is an irregular-size section. A standard section is 80 chains — or 5,280 feet — on each side. According to the Government plat, the Section 1 here involved is 92.81 chains on the West side, 79.35 chains on the South side, 91.40 chains on the East side and 78.45 chains on the North side. We reproduce a copy of the Government survey of said Section 1:

SECTION i TOWNSHIP 16 SOUTH RANGE 16 WEST

It will he noticed that in the South part of the section there are two approximately regular-size quarter-sections, but the North part of the said Section 1 was surveyed into seven lots numbered as shown on the plat. The appellees had an oil and gas lease on Lot 5, and drilled a commercially producing well at a location that they admittedly thought was on Lot 5 and located 16.6 feet East of the West line of Lot 5. But appellants contend that in fact the well is located on Lot 4: so the dispute is as to the boundary line between Lots 4 and 5.

A number of surveyors testified. All admitted that the Northwest corner of said Section 1 is definitely established. The appellees’ three surveyors began at the said Northwest corner of Section 1, and, by using the distances shown in the Government survey, located the well in Lot 5. Appellants concede that if the Government survey is correct, then the well is actually located in Lot 5 and the appellees should prevail.

But appellants’ surveyors insist: that the Government survey of Section 1 is erroneous; that the East line of Section 1 is actually located 84 feet East of the East line as shown on the Government survey; that when the East line of Section 1 is established as they (appellants’ surveyors) contend, then there is an overage of 84 feet (as between the Government survey and the appellants’ survey) in the East-West size of Section 1; that under the existing Standard Surveyors’ Rules, the overage is apportioned between the various tracts; that the result of such apportionment would be to move the dividing line between Lots 4 and 5 a distance of approximately 42 feet to the East; and that this moving of the dividing-line would put appellees’ well in Lot 4 instead of Lot 5, since, according to the Government survey, the well is only 16.6 feet East of the line.

Tims it is apparent that the basic questions are: (a) whether the appellants proved the Government survey to he wrong; and, if so, (h) whether the error is enough to move the dividing line between Lots 4 and 5 far enough to the East to put the appellees’ well in Lot 4. Other questions were presented in the pleadings in the Trial Court, hut are unnecessary to consider here because the Trial Court held that the appellants’ proof was not sufficient to establish that the Government- survey was erroneous; and we conclude that the Chancery decree should he affirmed because appellants have not established in this Court that the findings of the Chancery’ Court are against the preponderance of the evidence.

The correctness of the Northwest corner of Section 1 was admitted, and .the appellants’ witnesses gave their version of the location of the East line of Section.!. The Government survey shows the Northeast corner of Section 1 to he 5177.7 feet East of the Northwest corner; but appellants contend that the Northeast corner is 5261.7 feet East of the Northwest corner. Thus appellants move the East line of Section 1 a distance of 84 feet and say the Government survey is erroneous. To make their case, the appellants used the testimony of three surveyors :

(a) Mr. Goodwin testified that he began his survey at an iron pipe which he understood to he located at the Southeast corner of Lot 6. He says that he was told by Mr. McDonald and Mr. Nutt that this iron pipe was on the East line of Section 1. Mr. McDonald was not called to verify the statement, but Mr. Nutt (appellees’ surveyor) completely denied making such a statement. So Mr. Goodwin’s testimony primarily depends on whether the iron pipe was actually on the East line of Section 1, Mr. Goodwin admitted that he found no monument on the ground to place the section line where he did except the said iron pipe. He said he had been advised by other surveyors that the iron pipe was on the East line; and he stated that such location- tied in with other surveys. Mr. Goodwin was a candid witness and attempted to tie his survey into adjoining sections. Still, it must he recognized that unless the iron pipe from which he started was actually located on the East line of Section 1, instead of 84 feet East of such line, then his testimony does not disprove the Government survey.

(b) Mr. Williams, another surveyor, testified that he checked Mr. Goodwin’s survey and found it to be correct; but Mr. Williams’ testimony is no stronger than Mr. Goodwin’s because it likewise depends on whether the iron pipe used as the starting point, is actually on the East line of Section 1 or is located 84 feet East of the East line of Section 1.

(c) Mr. Methvin, another surveyor, likewise used the iron pipe at the Southeast corner of Lot 6 as a starting point. He said that Mr. McDonald and Mr. Nutt told him that the pipe was on the East line of Section 1. As aforesaid, Mr. McDonald was not called to verify the statement, and Mr. Nutt completely denied making the statement. No surveyor made any reference to the original field notes in the State Land Office. These show: (a) an actual survey — with references to ground monuments — made in 1837 in regard to the East boundary line of Section 1; and (b) a like survey, with like references, made in 1839 in regard to the South boundary line of Section 1. The plat herein copied was prepared from such field notes; and if the field notes had been used by either set of surveyors to cheek against the ground monuments, then the testimony of the surveyors would have been more valuable.

It would serve no useful purpose to quote at length and in detail from the testimony of the appellants’ surveyors. We are convinced that they are all honest men. But the point is that the Government survey is prima facie correct. (See Little v. Williams, 88 Ark. 37, 113 S. W. 340, affirmed by the U. S. Supreme Court, 231 U. S. 335, 58 L. Ed. 256, 34 S. Ct. 68.) The burden was on the appellants to disprove the Government survey. The Chancery Court, after having heard the testimony of the appellants’ surveyors and that of the three surveyors of the appellees, reached the conclusion that the testimony of appellants’ surveyors was not sufficient to establish that the Government survey was in fact wrong; and on appeal we cannot say that the finding of the Chancery Court is against the preponderance of the evidence.

Affirmed.

       Appellants cite us to the Manual oí Surveying Instructions oí 1947, issued by the U. S. Department of Interior, and say that on page 362 of the Manual the following appears: “Existing original corners cannot be disturbed. Consequently discrepancies between the new and those of the record measurement will not in any manner affect the measurements beyond the identified corners. But the differences will be distributed proportionately within the several intervals along the line between the corners.”

       In Luther v. Walker, 175 Ark. 846 (styled Luther v. Denny in 1 S. W. 2d 6), we discussed in considerable detail the method of apportionment regarding overage and underage in surveys. See also 11 C. J. S. 739.

       These related to appellees’ plea of laches against appellants, and appellees’ right of removal of machinery and recovery of the amount of benefits the appellants would enjoy from appellees’ efforts.


author: Minor W. Mill wee, Associate Justice.

text:
    Southern Wooden Box, Inc. v. Ozark Hardwood Manufacturing Co.
    5-1063
    294 S. W. 2d 761
    Opinion delivered November 5, 1956.

      Frierson, Walher & Snellgrove, for appellant.

      J. M. Smallwood, for appellee.
   Minor W. Mill wee, Associate Justice.

Appellant, Southern Wooden Box Inc., brought this action against appellee, Ozark Hardwood Manufacturing Co., to recover damages for the alleged breach of a contract for the sale of cottonwood lumber. In its answer appellee denied that a binding contract was ever concluded between the parties by reason of appellant’s failure and refusal to execute and transmit a written confirmation which was a condition precedent to the existence of the contract. This appeal is from judgment based on a verdict in favor of appellee.

The only error urged is the trial court’s refusal to direct a verdict for appellant. In determining the sufficiency of the evidence to support the verdict we must, of course, consider it in the light most favorable to appellee.

Appellee had about 700,000 feet of cottonwood lumber for sale near Batesville, Arkansas, in November, 1954. Joe D. Mills, appellee’s manager at Clarksville, contacted Joe Blindman, manager of appellant at Jones-boro, with reference to a sale of the lumber which consisted of three grades: (1) FAS (first and select); (2) No. 1 common; and (3) No. 2 common. It was then agreed that appellant would take all the No. 2 common and better at a price of $60 per thousand delivered at Jonesboro. After two loads of lumber were shipped under the verbal agreement, Blindman called and told Mills that he would not take any more because the percentage of No. 2 lumber was running higher than estimated.

On December 10, 1954, Blindman called Mills and told him appellant was interested in buying the No. 1 and better cottonwood lumber. According to Mills it was agreed that appellant would pay $70 per thousand for the No. 1 and better lumber estimated at 300,000 to 400,-000 feet and that each party would furnish the other a written confirmation of the verbal telephone agreement. The reason assigned by Mills for requiring written confirmation was the fact that Blindman had cancelled their previous order which had not been confirmed in writing. On the date of the telephone conversation, Mills wrote Blindman, as follows:

“Acknowledge our telephone conversation to date regarding the 4/4 Common & Better Cottonwood we have on our yard near Batesville, Arkansas.

We acknowledge your verbal order for 300,000 to 400,000 bd. feet of the 4/4 No. 1 & Better Cottonwood ■rough Air Dried at $70 per thousand delivered to Jones-boro on our trucks.

We will deliver first load Wednesday, December 15tb then one load Thursday and Friday, December 16th and 17 th.

As per onr telephone conversation we would like to start delivering five loads per week.

Thanking you for the nice order.”

Mills made the first shipment on December 15, expecting the written confirmation by appellant. • When it failed to arrive the next day he called Blindman requesting the confirmation which Blindman promised, to furnish immediately. Acting on this promise additional shipments were made on December 16th and 17th. Blind-man called Mills on December 29, 1954, and asked him if further deliveries were going to be made and was again advised that Mills had not received the written confirmation. Upon Blindman’s representation that it would be forthcoming, two more loads were shipped the first part of January, 1955.

When Blindman called Mills again on January 13, 1955, to ask about further shipments, Mills told him he had never received the written order and that no future shipments would be made. This conversation was repeated in February, 1955, when Blindman came to ap-pellee’s office at Clarksville. Mills heard no more about the matter until April 18, 1955, when Blindman called and was again told that no more shipments would be, made. Appellee introduced toll tickets showing the various telephone calls about which he testified. Blindman admitted that he requested written confirmation by Mills of the verbal agreement of December 10th, but denied that he was also to furnish such confirmation.

While Blindman denied that he ever agreed to furnish written confirmation of the agreement of December 10th, appellant concedes that, for the purposes of argument here, it must be assumed that such confirmation was made a condition of the agreement and that none was ever furnished, aside from the fact that appellant paid for the shipments made. However, appellant earnestly contends that- appellee waived the condition 'requiring. written confirmation by appellant by making shipments without receiving it and accepting payment for said shipments. Reliance is had on such decisions as Parker v. Carter, 91 Ark. 162, 120 S. W. 836, and Vieth v. Mushrush Lumber Co., 167 Ark. 669, 269 S. W. 44. These cases hold that a contract not required to be in writing is valid if. signed by one of the parties and is accepted or adopted by the other party. The crucial issue here is whether the question of appellee’s waiver of, or acquiescence in, the failure to furnish the written confirmation is one of law for the court or one of fact for the jury.

Even in the case of a written contract duly executed by both parties, this court has repeatedly held that parol evidence is admissible to prove that it was not to be a complete and binding agreement until certain conditions precedent have been fulfilled. Barr C. & P. Co. v. Brooks-Ozan Mer. Co., 82 Ark. 219, 101 S. W. 408; American Sales Book Co. v. Whitaker, 100 Ark. 366, 140 S. W. 132, 37 L. R. A. (N. S.) 91; Worthen v. Stewart, 116 Ark. 294, 172 S. W. 855; Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304. In the Reynolds case we said: “The situation here is not that of a waiver of a condition precedent stated in the written contract; rather, it is the waiving of a condition precedent to the coming into existence of the contract. See 17 C. J. S. 792 on ‘Conditions Precedent.’ In 13 C. J. 791, in discussing the waiver of a condition precedent in actions concerning contracts, the general rule is stated: ‘The question as to whether a condition precedent has been performed is purely one of fact to be determined by the jury under the evidence. And the same has been held to be true of the question as to whether the performance of such condition has been waived, but the jury should be properly instructed as to the law.’ See, also, 17 C. J. S. 1297.”

Unquestionably, if appellee had accepted the several shipments of lumber without any insistence on its right to a written confirmation and without any promise by appellant to furnish it, then appellee would be held to have waived the condition. According to Blindman that is exactly what happened, but Mills denied it and stated that each shipment was made and payment therefor accepted in reliance on Blindman’s repeated assertions that the written confirmation wonld be forthcoming. Under this and other conflicts in the testimony, the trial, conrt correctly held that the questions, whether written confirmation was- required before the contract became effective, and whether appellee waived the performance of such condition, were issnes of fact properly determinable by a jury. These issues were submitted under clear and proper instructions and the verdict of the jury. is supported by substantial evidence.

Affirmed.


text:
    Studdard v. Walter C. Hudson, Inc.
    5-1039
    295 S. W. 2d 637
    Opinion delivered November 5, 1956.
    [Rehearing denied December 10, 1956.]

      Talley & Owen and William L. Blair, for appellant.

      Hendrix Rowell, for appellee.
   George Rose Smith, J.

This is a suit brought by Walter C. Hudson, Inc., and its trustee, to foreclose a deed of trust upon certain land in Pulaski county. The deed of trust was executed by the appellant, Elizabeth Studdard, to secure a loan of $11,200 and to secure any future indebtedness to Hudson either incurred by Miss Studdard herself or indorsed by her. The appellant makes two defenses to the suit: (a) She has assertedly not been given credit for a cash payment of about $4,800 made by ber brother, O. 0. Studdard, and (b) the transaction is void for usury. The chancellor rejected both defenses and entered a decree for the plaintiffs, awarding judgment for the unpaid balance of $5,358.35 and foreclosure of the lien.

The first defense presented a question of fact. Walter C. Hudson testified that his company made the original- loan of $11,200 on February 23, 1952, and took the deed of trust as security. In June of that year Miss Studdard wrote to Hudson, asking that additional advances be made to her; brother and to W. C. Potts, whose notes Miss Studdard promised to indorse. According to Hudson, he later made loans to Studdard and Potts, the notes were indorsed by Elizabeth Studdard, and these items are part of the debt sued upon.

Miss Studdard and her' codefendants, Ó. O. Stud-dard and Potts, insist that her indorsement was obtained by fraud after the Studdard-Potts notes had been paid in full. They say that in" September, 1953, Hudson held notes for $4,800 signed only by O. O. Studdard and Potts. According to their testimony, O. O. Studdard then paid the notes with cash, but Hudson persuaded Miss Studdard to fabricate her letter of June 19, 1952, and to indorse the paid notes, in order that Hudson might prosecute a claim for fire insurance upon some of Miss Studdard’s property that had burned. Hudson denies the truth of this testimony.

One version or the other is manifestly false. We cannot say that the chancellor was wrong in electing to credit the plaintiffs’ testimony. Hudson’s narrative, on the one hand, puts no strain upon one’s credulity. It describes an ordinary business transaction and is corroborated by all the written evidence. Miss Studdard admittedly wrote the letter that is ostensibly dated June 19, 1952; she admittedly indorsed the Studdard-Potts notes. Hudson’s account with Miss Studdard involves many items of receipt and disbursement; its accuracy is questioned only with respect to the cash payment allegedly made by 0. 0. Studdard.

Tlie appellants’ testimony, on the other hand, is not equally easy to believe. The defendants say that 0. 0. Studdard paid more than $4,800 to Hudson without taking a receipt or requiring the surrender of the notes that were being paid. Studdard says that the money came from a settlement made with him by an insurance company in connection with a lawsuit in Texas. Studdard offered to furnish proof establishing the fact that such a settlement had been made, but the proof was never supplied. This omission is especially significant; for the chancellor expressed his interest in the matter, and it would obviously be easy to prove' beyond doubt the making of a substantial settlement with an insurance company. That the settlement did not take place is indicated by the testimony of Hudson’s secretary, who produced an office memorandum of a telephone call received from Studdard about a year after the date of the asserted cash payment of $4,800. This memorandum tends to show that Studdard was still expecting to obtain a settlement in. the Texas litigation.

The claim of usury may be answered in a few words. The notes are not usurious on their face, as they bear interest at six percent per annum, until maturity and thereafter at ten percent per annum, and that is all the complaint demands. The appellants contend, however, that in making the original loan of $11,200 Hudson agreed to advance an additional $5,800 later on to pay a prior mortgage, that this additional advance was not made, and that the prior mortgage was eventually satisfied from the proceeds of a fire insurance policy held by Miss Studdard. In listing the charges and credits to the account with Hudson the appellants’ counsel give Miss Studdard credit for the payment of the prior mortgage but do not charge the amount of that mortgage as part of her debt to Hudson. This method of accounting is evidently incorrect; for if the payment of the prior mortgage is to be entered on one side of the ledger as to the credit to the account the amount of the mortgage must of course be recognized on the other side ás a part of the indebtedness. When this error is eliminated the plaintiffs’ claim-falls short of usury by several thousand dollars.

Affirmed.


author: George Bose Smith, J.

text:
    Bragg v. Hall, Secretary of State.
    5-1182
    294 S. W. 2d 763
    Opinion delivered November 5, 1956.

      Robert L. Rogers II, for plaintiff.

      Tom Gentry, Attorney General, for defendant; Wood & Smith, for intervenor.
   George Bose Smith, J.

This is an original action in which the plaintiff attacks the sufficiency of a petition to initiate a constitutional amendment prohibiting pari-mutuel betting. The complaint asserts that the petition is not signed by the required number of qualified electors. The sponsors of the proposed measure have intervened to defend their petition. Questions of . fact being presented, we appointed a member of the bar, Riddick Riff el, as the court’s master to take the testimony. Supreme Court Rule 17. After the litigants had presented their evidence the master found the petition to be sufficient and recommended that the court dismiss the complaint. The case is now submitted upon the plaintiff’s exceptions to the master’s report.

It is agreed that 33,513 valid signatures are required for the petition to be sufficient. As filed with the Secretary of State this petition contained 39,885 signatures. The master made a definite finding that 518 of these names should be rejected, for various reasons not questioned by either side. The master expressed himself as being in doubt about 4,015 additional names which were not to be found in the poll books filed by the sponsors of the petition. The master pointed out, however, that even if these names were eliminated the petition would still have 35,352 valid signatures — 1,839 more than the minimum number required. The master accordingly found the petition to be sufficient. In questioning that conclusion the plaintiff insists that the master should have rejected the 4,015 signatures about which he was doubtful and should have decided other issues in the plaintiff’s favor.

1. We agree with the plaintiff’s contention that the 4,015 names must be deleted. Upon resting his ease the plaintiff had shown that those names were not to be found in the poll tax lists filed with the Secretary of State by the sponsors, of the petition. This proof made a prima facie ease and shifted to the proponents the burden of showing that the persons in question were qualified electors. Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547. Instead of adducing evidence to show that- the challenged signers were in fact qualified, the intervenors contented' themselves with contending that the poll books had not: been authenticated in the manner required by law.' The intervenors, however, had originally filed these books with the Secretary of State and had thereby impliedly represented that he might rely upon them in determining the sufficiency of the petition in the first instance. In these circumstances the intervenors have had' the benefit of the information contained in the lists and are estopped to question their authenticity at a later stage in the proceedings. See McCollum v. Price, 213 Ark. 609, 211 S. W. 2d 895. Hence the plaintiff’s prima facie showing as to these 4,015 names was not overcome, which leaves the petition with the above mentioned margin of 1,839 signatures.

L . II. The petition consists of many counterparts circulated by different canvassers. The original complaint alleges that counterparts containing 16,415 names should be disregarded for the reason that more than twenty percent of the signatures upon each of these parts are invalid. The master in effect held this allegation to be demurrable and struck it from the complaint. ■ The plaintiff excepts to' this ruling.

The master’s decision' was correct. The plaintiff does not charge conscious and deliberate fraud on the part of the canvassers; he simple asserts that any particular part of the petition must be discarded in its entirety if it is shown that as many as a fifth of its signatures are not good. This contention rests upon the provisions of Ark. Stats. 1947, % 2-210, which relates to the initial examination of the petition by the Secretary of State. The statute provides in substance that if it appears beyond a reasonable doubt that twenty percent of the signatures upon a counterpart are not genuine and should have been so recognized by the canvasser, the Secretary of State shall require the sponsors to prove that the other signatures on the counterpart are genuine.' If the petition is then found to be insufficient the sponsors are given thirty days in which to remedy the defect. The statute clearly does not have the broad scope that the plaintiff attributes to it. Not only does it. apply by it's terms to the Secretary of State alone; it also contemplates flagrant defects that should have been known to the canvasser.' It is not a basis for saying as a matter of law that in subsequent litigation the contestants can annul an entire counterpart merely by showing that a fifth of the signers are not qualified electors.

III. Two counterparts are challenged for the reason that their circulators completed the verification thereto in the State of Texas. We perceive no reason for holding this procedure to be illegal. There is no requirement in the constitution or in the statutes that the affidavit be executed in Arkansas. We uniformly recognize the validity of out-of-state oaths and acknowledgments in the case of depositions, deeds, mortgages, etc. To apply a different rule to initiated petitions might well disenfranchise Arkansas citizens who happened to be out of the state when the petitions were being circulated.

IY. In 773 instances a canvasser signed his own counterpart, as a petitioner, before taking it before a notary public and completing the verification. It is contended that this practice is just as ineffective as a notary’s attempt to take his own acknowledgment. The analogy, however, is unsound. In no instance did the canvasser attempt to administer an oath to himself; he merely signed the petition and then took the required oath before a qualified third person. All that is demanded by the constitution is that the circulator swear that ‘ ‘ all the signatures . . . were made in the presence of the affiant, and that to the best of the affiant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter.” Amendment 7. That the canvasser has himself signed the counterpart does not render the affidavit in any respect untrue. There can be no good reason for denying to the can-yasser the privilege of signing the same petition that he asks others to sign.

V. The remaining exceptions to the master’s report do not require extended discussion. Because this court stated in Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72, that the verity of a counterpart is not destroyed by proof “that at least one signature is not genuine,” the plaintiff suggests that such verity should be held to be destroyed whenever more than one signature is shown not to be genuine. The master did not consider that this argument requires refutation, nor do we. There are two other exceptions, both directed to issues of fact, but together they involve the validity of only 1,066 signatures. As a decision in the plaintiff’s favor upon both issues would not overcome the proponents’ margin of 1,839 signatures we deem it unnecessary to pass upon these questions of fact.

The master’s report is approved and the complaint dismissed for want of equity.