author: John A. Fogleman, Justice.

text:
    Jerry Leon GIBBS v. STATE of Arkansas
    73-159
    504 S.W. 2d 719
    Opinion delivered February 4, 1974

      Robert D. Ridgeway, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.

      John Wesley Hall Jr., for Lee Munson, Pros. Atty., 6th Judicial Circuit, Amicus Curiae.

   John A. Fogleman, Justice.

This appeal results from the conviction of Jerry Leon Gibbs for violation of Ark. Stat. Ann. § 41-2729 (Supp. 1973), which prohibits the exhibition or possession of any obscene film. After he was found guilty by the Municipal Court of the City of Hot Springs, he appealed to the Circuit Court of Garland County, where he was again found guilty. He asserts five points for reversal. 'We find reversible error in the denial of appellant’s motion to suppress film seized by a police officer. We will first treat that ground and later discuss other points which would probably arise on a retrial.

Appellant moved to "quash” six Peep-show Machines, and the film contained therein, various photographs, two rolls of 8 mm. film and five paper-bound books. He alleged that this property was taken by police officers acting without a search warrant or other court order for its seizure.

On October 18, 1971, Lieutenant Norman Hall of the Hot Springs Police Department noticed signs on the window at Paris Book Store, 258 Central Avenue, advertising “nude movies.” He and Sergeant Griffith, another police officer, entered the building and went to a rear room, where they found six or seven machines called “Peep Show Machines” set up. Neither officer had a search warrant, and none had been issued. Hall had gone to this place to investigate upon advice of the Mayor. He observed the films displayed by these machines. It was stipulated those which they saw depicted simulated sex acts; no penetration or actual intercourse was shown. The machines were coin-operated and Hall viewed the films as any patron of the establishment would, i.e., by placing the required coins into the machine. The officers were directed to the room where the machines were located by Gibbs when Hall asked him where the nude movies were. After viewing the film, he arrested Gibbs, who was then the only person in the store, and seized the machines and the films in them. There was no adversary hearing as to the obscenity of the film before the seizure or before Gibbs’ trial. The record does not disclose whether the film was shown at his municipal court trial.

A similar question was presented in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363. We then recognized, upon the authority of Lee Art Theater, Inc. v. Virginia, 392 U.S. 636, 88 S. Ct. 2103, 20 L. Ed. 2d 1313 (1968); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964); Marcus v. Search Warrants, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961), the establishment by the Supreme Court of the United States of a rule that seizure of an allegedly obscene film by a police officer without a prior adversary hearing at which the obscene quality of the film is independently determined by a judicial officer is unreasonable. We also pointed out that, in this respect, the court had found a difference between the seizure of ordinary contraband and matter that, if not obscene, is subject to First Amendment protection. In Bullard, we held the court erred in failing to suppress the seizure of film by a police officer who had viewed it because there was no prior adversary hearing. Nothing has changed the rule applied in Bullard. It is true that the United States Supreme Court has stated, in Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973), and Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2769, 37 L. Ed. 2d 757 (1973), that the right to a prior adversary hearing as to obscenity of material arguably protected by the First Amendment is not absolute in all cases, particularly where there is a seizure pursuant to a warrant for preservation of the material as evidence. It is clear, however, from these cases and those upon which we relied in Bullard, that there must at least be a determination of probable cause by a neutral magistrate before seizure of allegedly obscene material followed by a prompt post-seizure judicial determination of the obscenity issue at the request of an interested party. It also appears that, under these authorities, the seizure of a film must not prevent continued showing of a film.

In Roaden, virtually indistinguishable upon the facts from the case before us, it was held that a seizure such as this is plainly a form of prior restraint and unreasonable under Fourth Amendment standards. The court recognized, however, that there might be exigent circumstances requiring immediate police action to prevent destruction of evidence which would make action without prior judicial evaluation reasonable, but found no such circumstances to exist there. It is not suggested that they existed here.

The state’s contention that there was consent, express or implied, to the search through Gibbs’ directing Hall and Griffin to the room where the nude movies were being shown merits little attention. It overlooks the lack of evidentiary support, because there is nothing to show that Gibbs even suspected that Hall and Griffith were police officers. It also ignores the fact that it is the seizure, not the search, that is attacked as unreasonable. The state’s assertion that the material, since it was actually obscene, was not protected by the First Amendment is likewise without merit. The full impact of the fule declared by decisions of the, United States Supreme Court cited above, and those relied upon in Bullard, quite, clearly applies to material which would be subject to First Amendment protection, except for its obscentiy.

The brief of amicus curiae on this point is based upon an argument that unlawfulness of the search and seizure does not require suppression of the film because the search and seizure did not lead to the discovery of the crime and because the primary right involved was First Amendment right of access rather than Fourth Amendment immunity from search and seizure. A short answer is that such a position is clearly contrary to the result in Roaden, where the reversal was based solely upon the admission of the film in evidence. Cases cited by amicus in support of this argument are pre-Roaden decisions.

Amicus also proposes we should not apply the exclusionary rule because it is under severe attack to which it may well succumb. Presently, it is sufficient to say that this court recognized the desirability of the rule before it was imposed upon state courts by the United States Supreme Court. See Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816; Burke v. State, 235 Ark. 882, 362 S.W. 2d 695; Mann v. City of Heber Springs, 239 Ark. 969; 395 S.W. 2d 557, 559 (Johnson, J., concurring). The propriety of the exclusionary rule, in general, has not yet been subjected to frontal attack in this court. Furthermore, the mere fact that the United States Supreme Court has accepted cases for review in which an assault on the exclusionary rule has been mounted is inadequate basis for a clairvoyant prediction that the rule is in the throes of death. There could be no clearer demonstration of our inability to do so, or of the foolhardiness of indulging in such speculation, than the declination by the court of an invitation to abrogate the rule in two of those cases. See United States v. Robinson, —U.S. — 94 S. Ct. 467 38 L. Ed. 2d 427, and Gustafson v. Florida, —U.S. —, — 94 S. Ct. 488, 38 L. Ed. 2d 456 (both decided December 11, 1973, subsequent to the original submission of this case). Not only was there no consideration of the advisability of the abandonment of the rule in these cases, it is treated as viable in Robinson. It seems that the disposition of both cases would have been simpler if the court had chosen to recede from its exclusionary rule. In another such case, United States v. Calandra, —U.S. —, 94 S. Ct. 613, 38 L. Ed. 2d —, the court on January 8, this year, simply refused to extend the exclusionary rule to grand jury proceedings upon the premises that a grand jury, unrestrained by evidentiary rules governing criminal trials, may even consider incompetent evidence and that one has standing to invoke the rule only when evidence illegally obtained, or the fruits thereof, is offered to incriminate the victim of the search. Although the court there deliberately avoided discussion of the rule’s efficacy in criminal trials, this case, too, could easily have afforded a vehicle for abandonment of the rule. Certainly, this trio, all under submission at the same time, and argued within a three-day period, would have afforded an ideal vehicle for abandonment of the rule, if such a step is imminent.

Reversal on this point, however, does not require dismissal because of the availability of such procedures as are suggested in Bullard.

Appellant’s second point for reversal is a contention that die trial court erred by taking judicial notice of contemporary community standards. We think appellant misconstrues the action of the trial court. His argument is based upon the fact that there was no evidence in the record as to these standards, except for the testimony of a police officer who based his opinion upon his own personal feelings and upon the fact that people in the community "were hot about the bookstores” at the time. The circuit judge, who sat as trier of the facts, after waiver of jury trial, in his final opinion, stated his familiarity with community standards in 41 of the 50 states and found the film to go beyond contemporary community standards of "this community, this state and this country.” Among other statements of the trial judge in delivering his opinion are these:

It is inconceivable that the community standards of any average community in this or any other state could approve or condone the activities of the two people shown in this film. * * * A person would have to be deaf, dumb and blind not to understand what this film was about and why people might observe it. The public is neither deaf, dumb nor blind. This film appeals to the animal sex desire and instinct of people and obviously is so intended.

We do not conceive of this procedure as involving judicial notice at all. It must be remembered that the circuit judge sat as trier of the facts, a jury trial having been waived. As such, he was required to determine: (a) whether the average person applying contemporary standards would find that the material exhibited by appellant, taken as a whole, appealed to the prurient interest; (b)’whether the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). In making that' determination, the state law to be applied prohibited exhibition of film, the dominant theme of which, when taken as a whole, to the average person applying contemporary community standards, appeals to prurient interest. Ark. Stat. Ann. §§ 41-2729 — 2731 (Supp. 1971).

In making this determination the judge had the stipulation of the parties, the testimony of the police officer and the films themselves, which he viewed. There was no indication in Miller that testimony, either expert or non-expert, was necessary to the fact-finder’s determination of the average person’s concept of community standards. It was suggested there, however, that reliance must be placed on the jury system to resolve the sensitive questions arising. The court unequivocally held that jury evaluation of materials with reference to community standards adequately served the essential purpose of assuring that, in applying community standards, material be judged by its impact on the average person and not upon either a particularly sensitive or totally insensitive person. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), there was a jury-waived trial. The films were exhibited to the trial court. No other evidence was presented from which the critical fact determinations could have been made. It was there held that the films themselves are the best evidence of what they represent and that, when they are placed in evidence, no “expert” testimony is necessary to establish that they were obscene, when they are not directed at such a bizarre, deviant group that the experience of the trier-of-fact would be plainly inadequate to judge whether the material appeals to the prurient interest.

Of course, the application of community standards is a part of the fact-fincLing process in making a determination of obscenity. While Slaton was a civil proceeding to restrain exhibition of films as obscene, the authorities there dted in support of this principle are all criminal cases. The principles are applied in Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973), which was a criminal prosecution. The appellate court in California had held that the circumstances surrounding the sale of the book in question there and the nature of the book itself constituted sufficient evidence to sustain Kap-lan’s conviction. The United States Supreme Court said that in cases decided since Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), it had regarded the questioned materials to be sufficient in themselves for determination of the question whether they are obscene. That court then specifically held that there was no need for “expert” testimony or any other ancillary evidence of obscenity, once the allegedly obscene materials themselves are placed in evidence. The trial judge, as the fact-finder, did not take judicial notice of community standards, but applied them as a fact-finder, just as a jury could do.

What we have said disposes of appellant’s contention that the evidence was insufficient to show either community standards or appeal to prurient interest. The only remaining question is the constitutionality of the statute under which Gibbs was convicted. Appellant contends that, in the light of Miller v. California, supra, Ark. Stat. Ann. §§ 41-2729 — 2731, being Act 411 of 1967, are unconstitutionally overbroad, vague and indefinite. In addition to the guidelines stated in Miller, he relies upon the following language from the opinion:

We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 682—685, 88 S. Ct., at 1302—1305 (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

Appellant contends that because of this language and the words “sexual conduct specifically defined by the applicable state law,” the statute must fall because it neither mentions nor defines sexual conduct. He reads Miller as requiring that the sexual conduct which is obscene be spelled out in the statute itself, wholly overlooking the provision that such conduct may be defined by authoritative construction. In Miller, the court said that no one could be prosecuted for exposure of obscene materials unless the materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed.

On this point, amicus curiae notes that the statute in question meets Roth standards, the only constitutional guidelines for the state legislature when the statute was passed. In Miller, the court specifically emphasized that there was no necessity for state legislatures to pass new statutes because existing statutes may be determined to be constitutionally adequate, when considered as theretofore or thereafter construed. In United States v. Twelve 200-Foot Reels, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), the court in reviewing a United States District Court holding that 19 U.S.C. § 1305 (a) was unconstitutional on its face, recognized its duty to authoritatively construe federal statutes where a serious doubt of constitutionality is raised and a construction of the statute by which the question may be avoided is fairly possible. The court also recognized that it must leave to state courts the construction of state legislation in this respect but emphatically announced its intention, where there is a serious doubt as to the vagueness of such words as “obscene,” to construe those words as limiting regulated material to patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller, all the while conceding that Congress might define other specific “hard core” conduct. The examples are thus stated in Miller:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Obviously, these examples fall within the common understanding of the meaning of the word. See State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973).

It is quite clear in Miller that a definition may be given by the courts as well as by the legislature insofar as federal constitutional standards are concerned. See also, People v. Enskat, 33 Cal. App. 3d 900, 109 Cal. Rptr. 433 (1973). We also note that in Roth, the United States Supreme Court recognized that such terms as “obscene” are not precise, but that lack of precision is not itself offensive to the requirements of due process if the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Such words, when applied according to the proper standard for judging obscenity were said to give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law. The court added that the fact that there might be marginal cases in which it is difficult to determine the side of the line upon which a particular fact situation might fall is not sufficient reason to hold the language too ambiguous to define a criminal offense. The statutes upheld in Roth as against claims of unconstitutional vagueness were even less specific in defining obscene material than is the statute questioned here. See also, State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973).

It seems to us that the Florida Supreme Court overextended the invitation for judicial construction by actually changing definitions it had used in amplification of the definition of the word “obscene” in a statute using words very similar to the language of ours. That court found no difficulty in changing its construction of the statute to fit Miller standards, holding that the language of the statute made it susceptible to judicial construction compatible with Miller standards and definitions. See Papp v. State, 281 So. 2d 600 (Fla. App. 1973). The Florida court recognized its own definitions were being changed by holding that the new definition could only have prospective effect and that Papp’s conviction must be reversed.

We do not have the apparent obstacles to such a construction that the Florida court sought to avoid. We have not construed the definition of obscene material in the statute applied in this case. As amicus points out, our decision in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363, wherein we held the definition of the word “obscene” in Ark. Stat. Ann. § 41-2730 sufficiently fair and comprehensive to meet the test of constitutionality, left us with sufficient flexibility for the application of Miller standards to our statute. We held in Bullard the absence of a requirement that material be “utterly without redeeming social value” before it could be obscene under Ark. Stat. Ann. § 41-2729, did not render the statute constitutionally deficient, because it is not essential that a statute incorporate every constitutional nuance. Also, we are dedicated to the proposition that we must give an act a construction that would meet constitutional tests, if it is reasonably possible to do so. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634.

Since we have not construed the act, except in Bul-lard, we follow the pattern established by the United States Supreme Court and followed in Papp v. State, supra, and hold that obscene film regulated by Ark. Stat. Ann. § 41-2729 — 2731 is limited to that which constitutes (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. See also, State v. J-R Distributors, Inc., supra.

Appellant’s contention that the statute falls upon the authority of Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 542 (1969), must likewise be rejected. He argues that the failure of the legislature to specifically except possession of obscene film by one in his own home renders the act unconstitutional. An easy answer to this argument is that appellant has no standing to raise it. May v. State, 254 Ark. 194, 492 S.W. 2d 888. But, in any event, this argument was rejected in Paris Adult Theatre I v. Slaton, supra.

The judgment is reversed and the cause remanded for further proceedings pursuant to Bullard.

      At that time we thought that this requirement constituted one of the criteria for testing the constitutionality of the statute under Memoirs v. Massachusetts, 3883 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). The application of the principle by which we found our act constitutional was indicated in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957).


source: Caselaw Access Project

author: J. Fred Jones, Justice. Conley Byrd, Justice,

license: Public Domain

text:
    Donna Marie SCHENCK, a Minor, et al v. Janet KNIGHT, Director of Family Services
    73-185
    505 S.W. 2d 192
    Opinion delivered February 4, 1974
    [Rehearing denied March 11, 1974.]

      Frances T. Donovan, for appellants.

      Ivan H. Smith and Louis Watts, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Donna Marie Schenck, the minor mother of Patrick Daniel Schenck, and Donna’s mother, Mary Ann Brown, as next friend of Donna Marie and grandmother of the infant child, Patrick Daniel Schenck, from, a- decree of the Garland County Chancery Court denying their petition for habeas corpus in connection with the custody of the infant child, Patrick Daniel Schenck.

The rather sordid background is somewhat immaterial to the question before us on appeal and much of the evidence is indicative of strong feelings so easily generated in child custody cases of this kind. The appellants’ brief begins with the statement: “This is the case of the stolen child, Patrick Daniel Schenck, . . . who was spirited away to a foster home by the Welfare Department, under an illegal order of the Pulaski Juvenile Court.” From our examination of the entire record, we do not find this case as simple as the appellants’ above statement would indicate.

From the recorded background for this litigation, it appears that Mary Ann Brown is a resident of Faulkner County and is the adopted daughter of Mr. and Mrs. Julian Nabholz who are also residents of Faulkner County. Mrs. Brown is 34 years of age and was first married to Tyrone Presley and they were divorced after two years of marriage. She then married Lawrence Schenck in August, 1957, and four children were born of the union. Upon her divorce from Schenck in 1965, she married Joe Brown from whom she is now separated.

Donna Marie is the oldest of Mrs. Brown’s four children and even prior to her separation from Brown, she and her children were dependent upon her elderly mother and father and on state welfare assistance for the bare necessities of life. From Mrs. Brown’s own testimony and other evidence in the record, it appears that her youngest child is afflicted with cerebral palsy, and her son, one year younger than Donna Marie, is afflicted with epilepsy.

It appears from the record that by the middle of 1970 Donna Marie was physically developing into young womanhood at an exceptionally early age and was having considerable difficulty with her reading in school. According to Mrs. Brown, Donna Marie had become “boy crazy” and Mrs. Brown became apprehensive about Donna Marie’s future welfare in her then surroundings and she sought aid and assistance from the Child Welfare Division of the state Welfare Department, which resulted in her relinquishing legal custody of Donna Marie to the Welfare Department with the understanding that Donna Marie would be placed in a suitable orphanage where she would obtain spiritual guidance as well as assistance with her schoolwork. Transfer of custody was accomplished through the written consent of Mrs. Brown and very informal juvenile court proceedings in the Faulkner County Juvenile Court. Through the efforts of the Welfare Department as well as the efforts of Mrs. Brown’s mother and father, Donna Marie was placed in a parochial orphanage in Pulaski County where she continued her schooling in public school and was permitted to visit her relatives in Faulkner County occasionally on weekends.

While Donna Marie was still a ward of the state, she became pregnant and was transferred from the orphanage to the Florence Crittenton Home for unwed mothers, where she remained during the last several months of her gestation period. Donna Marie was transferred to St. Vincent Infirmary where her child, Patrick Daniel Schenck, was delivered by caesarean section on October 6, 1971, when Donna Marie was 14 years of age.

The greatest conflict of the evidence in this case has to do with agreements pertaining to the custody of the infant, Patrick Daniel Schenck, prior to and following its birth. Numerous caseworkers and Welfare Department personnel and personnel from the Florence Crittenton Home testified that Mrs. Brown, as well as Donna Marie, and Mrs. Brown’s mother and father, agreed, prior to the birth of the child, that it would be to the best interest of all concerned that the child be released for adoption. They testified that Mrs. Brown’s mother and father only requested that the adoptive parents should be of the Catholic faith. They testified that clear up until the time of the child’s birth, they were under the impression that everyone concerned, including Donna Marie and Mrs. Brown, was agreeable to releasing the child for adoption. This testimony was denied by Mrs. Brown and Donna Marie. They both testified to rather extreme pressure exerted by the personnel of the child Welfare Division of the Welfare Department directed toward the release of the child for adoption, even to threats of retaining permanent custody of Donna Marie and never permitting her to return home unless they did agree to release the child for adoption.

In any event, following the birth of the child at St. Vincent Infirmary in Little Rock, the Child Welfare personnel went to the hospital to present release papers for Donna Marie to sign. They testified that when they arrived at the hospital, Donna Marie and her nother, Mrs. Brown, had just seen the baby for the first time; that they were both upset and crying and the release papers were not submitted to them for signing. Both Donna Marie and Mrs. Brown opposed the release of the child for adoption and they both testified they had never agreed to release the child for adoption and never had any intention of doing so.

On October 20, 1971, a petition signed hy Jamie Newson was filed in the Pulaski County Juvenile Court alleging Patrick Daniel Schenck to be a dependent and neglected child for the reason:

“That he is without proper parental care and supervision and dependent upon the public for support.”

The form petition then prayed that the court declare said child to be dependent and neglected and to:

“[M]ake an order for the welfare of Patrick Daniel Schenck, placing him in the legal custody of the Director of Family and Children’s Services, State Department of Public Welfare.”

On the same date, October 20, 1971, an order designated “Order of Temporary Custody” was signed by the judge and a referee of the Pulaski County Juvenile Court and it recited as follows:

“This cause coming on for hearing and the Court finds that the said Patrick Daniel Schenck is a dependent and neglected child in that he. is without proper parental care and supervision and dependent upon the public for support.
WHEREFORE it is hereby ordered by this Court that the said Patrick Daniel Schenck, be placed in the temporary custody oí the Director of Family and Children’s Services, State Department of Public Welfare, and that said Family and Children’s Services, State Department of Public Welfare, be authorized to secure proper medical and surgical care for said child until hearing and further order of the Pulaski County Juvenile Court. Said child not to be removed from temporary custody of the Family and Children’s Services without permission of the Pulaski County Juvenile Court.”

Apparently, under authority of this order, the director of the Family and Children’s Services of the state Department of Public Welfare took custody of the infant child; removed it from St. Vincent Infirmary and placed it in a foster home in Garland County, Arkansas. There are no further proceedings in the record before us pertaining to the Pulaski County Juvenile Court order of October 20, and apparently no appeal was perfected therefrom. (Ark. Stat. Ann. § 45-208 [Repl. 1964]).

On January 11, 1972, upon petition filed by Mrs. Brown in the Faulkner County Juvenile Court, that court’s previous order of August 28, 1970, pertaining to the custody of Donna Marie, was set aside and custody reinvested in Mrs. Brown. Then on January 26, 1972, Donna Marie and Mrs. Brown instituted the present litigation by filing their petition for habeas corpus in the Faulkner County Chancery Court against Janet Knight, Director of Family and Children’s Services, state Department of Public Welfare. Upon being advised that the child was in a foster home in Garland County, the Chancery Court of Faulkner County dismissed the petition for want of jurisdiction and, in effect, transferred the matter to the Garland County Chancery Court.

The matter proceeded to hearing on the petition for habeas corpus in. the Garland County Chancery Court where the appellants attacked the validity of the temporary custody order of the Pulaski County Juvenile Court for want of formal hearing and notice of a hearing to Donna Marie or Mrs. Brown, and without waiver from them as to notice of hearing. The validity of the Pulaski County Juvenile Court order placing temporary custody of the child in the state Welfare Department is not actually before us on this appeal. No appeal was taken from that order but it would appear from the record before us, that the order was certainly open to attack. Even though Donna Marie was herself in apparent legal custody of the Welfare Department at the time the order was entered, she or her legal guardian was entitled to notice of hearing; she had no legal guardian and the juvenile court had no authority to appoint one for her. Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. We hasten to point out that this is not an adoption case in any sense of the word and is not a proceeding for the appointment of a guardian. This is simply a habeas corpus case and we think the chancellor was correct in giving primary consideration to the best interest of the infant child.

Ths issues before the Garland County Chancery Court and the issues to which we address this opinion were clearly framed by the chancellor and agreed to by the appellants’ counsel in language from the record as follows:

“THE COURT: All right. The Court is of the opinion in the first place that it has jurisdiction, not only to look into the validity of the Pulaski County proceeding on the habeas corpus but also to go beyond that and look into what is of the best interest of the child and I think that this is a different situation not one of the ordinary causes of habeas corpus where a man is imprisoned and in this issue there is more at stake than whether or not the Pulaski County Juvenile Court took proper action in what it did.
MR. DONOVAN: That’s right.
THE COURT: So the Court is prepared to go into the whole matter. I’d like for all those who are to testify to please stand and be sworn.”

At the hearing in chancery court Mrs. Brown testified that she herself was an adopted child of Julian and Marie Nabholz, having been adopted in 1937. She testified that she was 34 years of age; that she first married Tyrone Presley from whom she was divorced after two years. She said she married Lawrence Schenck on August 14, 1957, lived with him eight years and was divorced from him in 1965. She said that following her divorce from Schenck and subsequent unsuccessful marriage to Joe Brown, she almost had a complete nervous breakdown requiring one week’s hospitalization. She said that Donna Marie developed a reading problem in the second grade which retarded her progress in school, and did not improve in subsequent grades. She said she was concerned about Donna Marie “because she was at the stage of being boy crazy and was concerned that something could happen in that field,” so she contacted the Child Welfare Department in connection with the problem. She said that she was told there was more than a possibility that Donna Marie could be gotten into “a reading foundation” if she was at the orphanage in Pulaski County, so she signed papers for Donna Marie to become a ward of the Child Welfare Division. On this point she said:

“I signed the papers at the Court House so that they could take Donna. And like I said — Faulkner County. I did not go before a Judge or anything. There was no hearing on that. I just like a lot of people did not read the papers I signed. I believed they were telling me the truth.”

Mrs. Brown then testified to visiting Donna Marie in the Florence Critteriton Home, where she remained until after she was delivered of child by caesarean section. She said she requested that Donna Marie be permitted to come home after the birth of the child but that the Welfare Department personnel threatened to not let Donna Marie come home at all unless she and Donna Marie signed papers releasing the child for adoption.

Mrs. Brown said that during the pendency of this litigation well-wishers in Faulkner County have given over $100 worth of baby clothes, a brand new baby bed and playpen, a stroller, a walker, jumpseat, baby bottles and a complete layette for a babv, and that she and Donna Marie are ready, able and willing to properly care for the infant child if it is returned to them. She said that she and her children are being supported by public welfare; that Donna Marie was born on December 18, 1957, and is 14 years of age; that her next oldest child Edward, was born January 11, 1959 and is now 13 years of age; that her next oldest child Debra Lynn, was born December 26, 1960, and is now 11 years of age, and her youngest child, Julia Ann, was bom March 17, 1963, and is now 9 years of age.

As to the health of her children, Mrs. Brown testified on direct examination as follows:

“A. Well, starting with Donna her health is perfrct. The only problem she has is her reading problem. She has a few little problems now that she — from childbirth — but she has no disease nor sickness that would keep her from school or anything. Eddie right now is having trouble. The doctor says that there is a possibility that he is on the seizure disorder, but they are trying to take a EEG if it’s a possibility that it could be a brain tumor or blood clot. The boy did go into a seizure after he had one of his severe headaches that he’s been having. Debbie — Eddie wears glasses. Debbie wears glasses. There’s nothing else wrong with her. Eddie went — until he went out of school because of being sick, was a straight A student in school. Debbie doesn’t do well in school but she’s at the age where she’s not interested. But sickness— Debbie just doesn’t get sick. The only child that I have that’s really sick is Julia Ann Schenck and she attends Faulkner County Day School for Crippled Children. She has cerebral palsy and she — her legs are weak and she has lost the use of one arm, but she’s attended school for three years. She’s been on medication ever since she was two years old. And she lives the life of a normal child actually.
Q. Have you spent considerable time taking this child to the Children’s Clinic for braces and things of that kind?
A. Yes, sir, we took her to Greenville, South Carolina, one year, and she got her braces there at the Shriner’s Hospital in Greenville, South Carolina. She’s now under the care of the Arkansas Crippled Children Clinic. She just had an eye operation, and it was very successful at the the Children’s Hospital. She doesn’t have to wear glasses any more. And she’s seen at the University of Arkansas Medical Center besides the Arkansas Crippled Children’s Clinic.
Q. And Eddie, was it yesterday that you took Eddie to the neurologist?
A. No, that was the day before. We called yesterday morning since the man who gives the EEG was unable to administer it. The Neurology Clinic said they’d have to wait till they get the result of this before they could actually give, you know, any definite answer on Eddie. That they needed the EEG, and I was promised that as soon as the man came back that they would get it as soon as possible.”

On cross-examination Mrs. Brown testified that she was pregnant with Donna Marie when she was divorced from Pressley and married Schenck. She said she had been married to Presley for a period of two years when he got in jail and she obtained a divorce. She said she had been receiving food stamps from the Welfare Department when she and her children were living in a trailer furnished by her parents, but that she only started receiving cash payments from the Welfare Department in 1971. She said that her husband, Joe Brown, was hospitalized for serious injuries he sustained in a fight; that she is now separated from Brown and will obtain a divorce as soon as she can afford one. She said that since receiving cash money together with food stamps she has rented a nicer trailer in a better environment than the one furnished by her parents. She said it is her understanding that the money she receives from the Welfare Department is based on the number of dependents and that her cash payments now amount to $116 per month. She said she was paying $100 a month for rent on the trailer; that her child with cerebral palsy is in a special school and is required to take phenabarbital and tridione daily. She said her son Eddie has been placed on phenabarbital therapy and was given a three month supply of the medicine until it is thoroughly determined that it is what he needs for his condition. She said her parents help out on the medical bills.

The substance of Mrs. Brown’s testimony pertinent to Donna Marie’s ability to care for her child is to the effect that in her opinion Donna Marie is thoroughly capable of being a mother to the infant child; that there is no question that she and Donna Marie together can do a good job of caring for the child; that the kind people of Conway have given her a baby bed and clothing for the child and with the continued assistance of the Welfare Department in food stamps and cash money, she feels that she and Donna Marie can make a satisfactory home in the trailer space she has available for the child, and that it would be to the best interest of all concerned if Donna Marie was awarded the custody of the child. Mrs. Brown said that besides the $116 in cash she receives from the Welfare Department, she also receives $148 worth of food stamps per month. She said that the trailer she now rents has two bedrooms with a couch that makes into a full bed. She said Donna Marie shares the double bed with her; that Debby and Julie, the two youngest children, share the other bedroom, and the livingroom couch is made into a bed for Eddie.

Donna Marie testified that she was bom December 18, 1957, and was 14 years of age at the time she testified. She said that she never did get to hold her baby after it was born but that she would like to. She said she already knows how to do most things necessary in caring for a baby and that her mother would help her. She said if given the custody of the child, her mother could take care of it in the daytime while she is in school and that she could take care of it at night. She said she loves her child dearly and wants possession and custody of it.

Mr. Julian Nabholz testified that he adopted Mrs. Brown in 1937 when she was five weeks old; that she graduated from high school and attended Arkansas State Teacher’s College. He testified as to Mrs. Brown’s marriage to Schenck, the birth of the four children and the divorce from Schenck. He was then asked and answered the following questions:

“Q. How would this new baby if the court gives it to them today, how would it fit into the home?
A. Well, right now, I think they are just in the temporary ah — motel—I mean, house trailer.
Q. Yes, sir?
A. And until they find a bigger house, and I’ve got some property up on Beaver Fork Lake that I’d be willing to give them a deed with it.
Q. To build a home?
A. Build about a three bedroom house.”

Mr. Nabholz testified that it was necessary for him and his wife to contribute substantially to Mrs. Brown and her children for food and clothing until they started receiving money from the Welfare Department, and that his and his wife’s burden has been considerably relieved by the Welfare Department.

Mrs. Winburn, Social Worker for the state Welfare Department in Faulkner County, Dick Deitz, Child Services Field Supervisor in Faulkner County, Mrs. Mary Jane Moix, Social Worker in the Arkansas Department of Social Services for Faulkner County, Mr. Bryan David Cordell, Field Supervisor for the Family and Children’s Division of the Arkansas Social Services, and Mrs. Darla Byers, Case Worker for the Family and Children’s Services of the state Welfare Department, Mrs. Mary Jane Madigan, Supervisor of unmarried mothers for the Family and Children’s Services, and Bobbie Smith, Executive Director of the Florence Crittenton Home, as well as Dr. John E. Peters and Cleo Goolsby, who interviewed Mrs. Brown and Donna Marie under direction of the chancellor, all testified under questioning by the chancellor as well as the attorneys. It would only lengthen this opinion to set out their testimony in detail but the substance of all of it is to the effect that Mrs. Brown is an unemployed mother of four dependent children, two of whom are afflicted, as already set out; that Mrs. Brown is totally overwhelmed by the problems she already has, including her own marital problems past and present and, is totally unprepared mentally, physically and financially to take on the additional responsibility of properly caring for an infant child in her present surroundings. None of the social workers who have been involved in this case recommended awarding custody of the child to its mother and they all testified emphatically that it would be to the best interest of the child, and to the best interest of all parties concerned, that the custody of the infant not be awarded to the mother in this case. They all agreed that Donna Marie appears to have the normal intelligence of a 14 year old child but they all agree that she is less mature than the average child of her age, and is thoroughly incompetent to properly mother an infant child in her present circumstances and surroundings.

The chancellor’s final order from whence comes this appeal recites as follows:

“Now on this 5th day of January, 1973, the Chancery Court of Garland County having received the depositions of Dr. John Peters and Miss Cleo Goolsby of the University of Arkansas Medical Center, Division of Child-Adolescent Psychiatry, and having given the depositions due consideration, and the Court having taken under advisement the evidence in this case and considering the evidence of Nancy L. Winburn, Richard Dietz, Mary Jane Moix, Bryan Cordell, Darla Byers, Mary Jane Madigan, Bobbie Smith, Estelene Duke, Mrs. Blake Browning, Donna Marie Schenck, Mary Ann Brown, Mr. Julian Nabholz, and other matters and things, this Court finds as follows:
1.The actual issue to be decided by this Court is the determination of ultimate custody, based upon the best interests of the child.
2. From the testimony and the Court’s personal observations of the witnesses, the Court is of the opinion that Donna Marie Schenck is completely immature and unable to care for her child properly.
3. The court is of the opinion that Donna Marie Schenck would not in any way have objected to adoption proceedings or otherwise attempted to regain custody of her child except for the pressure applied by her mother, Mary Ann Brown.
4. From the testimony and personal observations of Mary Ann Brown, the Court is of the opinion that she manifests substantial instability and is unable to cope with her past and present problems and would be unable to provide proper care for the child.
5. It would not be for the best interest of the child that it be raised in a family consisting of an unstable grandmother with marital problems, an immature fourteen year old mother, a thirteen year old uncle subject to epileptic seizures, an eleven year old aunt who is failing in school, and a nine year old aunt with cerebral palsy, all living in a mobile home and supported by Arkansas Social Services.
WHEREFORE, the Court finds that the petition for a Writ of Habeas Corpus should be denied and is hereby denied and custody of Patrick Daniel Schneck is confirmed in the Arkansas Social Services.”

From the record before us we are unable to say that the chancellor’s findings and order are against the preponderance of the evidence in this case. In the appellants’ brief their attorney argues that the basic problem of the family is poverty and we are urged to grant the petition for habeas corpus on trial de novo. He argues as follows:

“Habeas Corpus should be granted, and the Order of the Chancellor denying the writ should be reversed, together with an immediate mandate vesting custody of Patrick Daniel Schenck in his mother, Donna Marie Schenck, as she is now 16 years of age, and married.” (Our emphasis).

At another point in appellants’ brief appears this statement:

“She is now two years older, and is now 16 years of age, and, is now married.”

If Donna Marie has married and now has a home of her own, such evidence is not in the record now before us and we, of course, are confined to the record. If Donna Marie’s present age and marital status have brought about such change in condition that would justify a change in custody, there is nothing to prevent her from presenting such evidence as may now be available but, from the record before us, it would appear that the Chancery Court of Garland County would be the proper forum in which to present such evidence.

The order of the chancery court is affirmed on the record now before us.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. Sometime ago I employed a contractor to do some clearing for me with a bulldozer. The hire of the machine together with an operator was approximately fifty cents per minute. During the clearing operation a mother hen, of the bantam variety, attacked the bulldozer with such ferociousness that it attracted not only my attention but that of my dogs and a horse in the vicinity. I still remember how my heart leaped with joy when the operator, with a kindly smile, stopped the dozer for three or four minutes to let the hen remove her day-old brood from the path of the dozer. It was such a graphic demonstration of the unselfish devotion of motherhood to its offspring that it reminded me of the incident before King Solomon where the real mother quickly consented that her child be given to an impostor rather than have it split between the mother and the other claimant of the child. I’m sure that my brethren in the majority have all had as many graphic demonstrations as I of the response of motherhood and that in reaching their conclusions they have done as much soul searching in arriving at their conclusions. Having heard their discussions in this matter, I must admit that there is some practicality to their approach. I probably would have acquiesced in their considered judgment had the majority opinion given visitation rights to Donna Marie.

However, in my conscience, the Child Welfare Department’s protestations of benevolence and goodness cause me to wake up at night. I keep thinking to myself that if a thief had secretly taken Donna Marie’s baby from the hospital without her knowledge, every lawman, judge and householder in this state would have looked far and wide for Donna Marie’s baby, and, when it was found, each and every citizen would have expected and wanted the baby to be returned to Donna Marie. Yet, when the Child Welfare Department, an arm of the State of Arkansas, without notice or due process obtains a spurious probate order and just as silently takes Donna Marie’s baby, we ás judges, instead of seeing that Donna Marie’s baby is returned to her, stop to see if Donna Marie is a fit and proper mother and whether she can properly care for the child. It may be that Donna Marie appears too immature to properly care for her baby, but the record amply illustrates that she has that something which, despite her poverty and immaturity, has pulled together some friends and a capable lawyer to give their time to try to help her get her baby that was silently taken from her by a prestigious agency bespeaking goodness and benevolence. In making this appraisal I hope that I’m not overlooking the practical effects of life for the sympathy that I find in my heart and conscience.

One other reason impels me to register a dissent to the procedures here approved — i.e., there will just as surely be other Donna Maries but now the Child Welfare Department will have one more lever to coerce the next Donna Marie to sign a “consent to adoption.” The Department can now authoritatively point to this decision and tell all future Donna Maries that they may as well sign the “consent to adoption” because if they don’t, the Department can take the baby anyway.

Perhaps I am too sympathetic toward motherhood, however, as between the mother and one who takes her baby away without her consent and without notice it appears that some law of nature ought to favor the mother and discourage those who unlawfully take a baby whether the latter be a common thief or a prestigious state agency —at least until such time as the mother has had an opportunity to demonstrate her fitness or unfitness.

For the reasons herein stated, I respectfully dissent.


author: Conley Byrd, Justice.

text:
    Artie G. BURNETT v. ST. MARY’S HOSPITAL and ARGONAUT INSURANCE Company
    73-209
    505 S.W. 2d 24
    Opinion delivered February 4, 1974

      Bullock ir Shermer, for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: Michael G. Thompson, for appellees.
   Conley Byrd, Justice.

Appellant Artie G. Burnett filed a claim for workmen’s compensation claiming that she was twice injured in the employment of appellee St. Mary’s Hospital in October-November 1970. The October injury was alleged to be a fall down a stairway and the November injury was alleged to have occurred while lifting a bed rail. Before commencement of the hearing before the referee she amended her claim to state that the fall occurred during November and that the bed rail incident occurred in March 1971. The hospital admitted that claimant fell on the stairs in November but denied that her present condition was a result of the fall.

Appellant testified as to the fall and the bed rail incident and stated that her present complaints were a result of those incidents. She stated that she worked regularly from the time she began work in August of 1970 until the date of her fall. She also stated that she previously worked for Russellville Nursing Home and had a good record there. She denied that she had been involved in an automobile accident or that she had hurt her back off the job.

Proof on the part of the treating doctors showed that she had injured her back in her yard while bending over to pick up an egg and that subsequent to the date of the claimed injuries she had been involved in an automobile collision. None of the treating physicians could relate her back problems to her alleged work injuries.

The records from the Hospital and the Hursing Home demonstrated an erratic work history allegedly due to headaches.

The Commission in denying the claim laid much stress upon appellant’s credibility. The circuit- court affirmed the Commission. We find evidence in the record upon which the Commission could have either approved or denied the claim depending upon the credibility of the witnesses. This being true we are unable to say that there was no substantial evidence to support the Commission’s findings. See May v. Crompton-Arkansas Mills, Inc., 253 Ark. 1080, 490 S.W. 2d 794 (1973).

Affirmed.


author: Frank Holt, Justice.

text:
    INTERNATIONAL PAPER COMPANY v. Michael B. McGOOGAN
    73-220
    504 S.W. 2d 739
    Opinion delivered February 4, 1974

      Bridges, Young, Matthews if Davis, for appellant.

      Youngdahl, Brewer, Huckabay, Funk if Larrison, for appellee.
   Frank Holt, Justice.

Appellee was an employee of appellant when he suffered an injury to the thunb of his left hand. The commission awarded temporary total disability benefits and the circuit court affirmed. On appeal appellant asserts for reversal that the facts found by the commission do not support the award. The issue presented is stipulated by the parties as to “[W]hether or not a student who is injured while in fulltime employment, and who subsequently returns to school as he intended at the time of his employment, and who is still in his healing period, is entitled to temporary total disability benefits during the school term.” The injury is admittedly compensable.

Appellee worked for appellant during the summer months to earn wages for the announced purpose of attending the University of Arkansas at the beginning of the 1970 fall semester. As planned, he attended the University that academic year, during which time the appellant suspended payments of temporary total disability benefits for loss of wages. The appellee was a fulltime student and neither sought nor performed any employment during the school year. He made numerous trips to Little Rock for medical treatments for which he was compensated by appellant. At the beginning of the summer of 1971, the healing period not having ended, the appellant renewed payment of disability benefits for wage losses. Appellant only controverts temporary total disability payments to the appellee during the time he is a student. It was agreed that appellant is liable for permanent partial disability benefits whenever that can be determined. Therefore, the sole issue presented for our determination concerns the extent to which the appellee is entitled to temporary total disability compensation. This issue is one of first impression.

It is the appellee’s position that his eligibility for temporary total disability benefits is solely a medical fact question. It is agreed that the healing period has not ended and the medical testimony is to that effect. Appellant, to the contrary, takes the position that temporary total disability benefits are intended for actual wage losses. To resolve this issue we first resort to the applicable statutory provisions of our Workmen’s Compensation Act. Ark. Stat. Ann. § 81-1302 (e) (Repl. 1960) provides:

‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the inj ury.

See also § 81-1313 (c) which provides that an injured employee who sustains a scheduled permanent injury shall receive compensation during the healing period.

In construing our Workmen’s Compensation Act, it is well settled that we recognize it was enacted for beneficent and humane purposes and in giving effect to these purposes, we construe the statutory provisions liberally in favor of the claimant, resolving doubtful cases in favor of the claimant. This rule of statutory construction was recently recognized in Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972), citing International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488 (1971); and to the same effect is Cummings v. United Motor Exchange, 236 Ark. 735, 468 S.W. 2d 82 (1963). Had the drafters of our Workmen’s Compensation Act intended an exemption, as claimed in the case at bar, appropriate language could have easily removed any doubt by so stating. The Act does not prohibit the controverted payment.

In McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W. 2d 440 (1962), the Tennessee court held that temporary total disability benefits are payable without any interruption from the time of the injury to the time at which die degree of permanent disability is ascertainable. Cf. Khachgdoorian’s Case, 329 Mass. 625, 110 N.E. 2d 115 (1963) and Underwood v. Terminal-Frouge Builders, 128 So. 2d 605 (Fla. 1961). In Underwood we think it was aptly stated:

Neither do we think it should be held that because a claimant, during a period of disability, becomes a full-time student he should be precluded from receiving compensation, if he is in fact disabled. Such a rule would not only be unsupported by any provision of Workmen’s Compensation Law, it would, we believe, also violate the spirit and intent of the Workmen’s Compensation Law by penalizing a claimant for attempting through the furtherance of his education to limit the effect of his disability.

In the case at bar, appellant persuasively presents the argument that it is unjust to require payment during the school year based upon temporary total disability; however, when we construe the applicable portions of the Workmen’s Compensation Act, as previously discussed, in accordance with the beneficent purpose of the act and resolve all doubts in favor of the claimant, as we must do, we are of the view the commission was correct.

Affirmed.


text:
    A. J. BUTLER v. STATE of Arkansas
    CR 73-146
    504 S.W. 2d 747
    Opinion delivered February 4, 1974

      Robert A. Newcomb, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of first degree murder by a jury and sentenced to life imprisonment in the Arkansas Department of Correction. Appellant’s only contention for reversal is that the trial court erred in not granting a requested mistrial after the appellant, on cross-examination, was asked:

Q. A. J., are you guilty of shooting a man in Pine Bluff on December the 22nd, 1970?
A. Was I guilty?
Q. Did you shoot him?
A. Yes, sir, I shot him.

On re-direct appellant stated the shooting was in self-defense which resulted in no prosecution.

Appellant’s counsel forcefully presents the argument that the word “guilty” implies an accusation of a criminal wrongdoing or of having committed a crime. Even so, we cannot agree with appellant that the question was not proper. We have long approved the format of this question, on cross-examination, when asked in good faith, as being permissible to test the credibility of a witness, the state being bound by the answer. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972), Harrington v. State, 251 Ark. 587, 473 S.W. 2d 911 (1972), Black v. State, 250 Ark. 604, 466 S.W. 2d 463 (1971), Hughes & Bridges v. State, 249 Ark. 805, 461 S.W. 2d 940 (1971), and McAlister v. State, 99 Ark. 604, 139 S.W. 684 (1911). In Polli, the defendant was asked if he was guilty of robbing a filling station; in Harrington, if he was guilty of interstate transportation of stolen property; in Black, if he was guilty of raping a woman at a certain time and place; in Hughes & Bridges, “Did you take some money off Bobby Horne;” and in McAlister, if the witness had “assassinated” another person. In each of these cases we held it was proper cross-examination of the witness.

We think the question was particularly appropriate, in the case at bar, inasmuch as the state adduced evidence that the victim, lying unarmed on the floor, was shot five times by the appellant. The appellant insisted that he shot in defense of his brother and that the deceased was armed. Certainly the credibility of the appellant was a crucial issue.

Affirmed.

Harris, C.J., not participating.


author: Carleton Harris, Chief Justice.

text:
    W. N. RASMUSSEN and Pearl E. RASMUSSEN, His Wife v. C. J. HORNER Company, Inc.
    73-216
    505 S.W. 2d 225
    Opinion delivered February 11, 1974

      Rasmussen and Hogue, by: Sigun Rasmussen, for appellants.

      Glover and Sanders, by: R. Julian Glover, for appel-lee.
   Carleton Harris, Chief Justice.

Don Kymes, a building contractor, entered into a contract to build a house for W. N. Rasmussen and his wife, Pearle E. Rasmussen, appellants herein. Appellee, C. J. Horner Company, Inc. supplied certain .materials provided within the contract for the alleged sum of $1,789.89. Kymes took bankruptcy and appellee sought recovery from the Rasmussens under the lien statutes. Appellants defended on the basis that appellee had failed to comply with the statutory requirements of Ark. Stat. Ann. § 51-613 (Repl. 1971). On trial, the court held that materials from Homer in the amount of $987.28 had been used in the Rasmussen house and judgment was granted for that amount; it was further provided that if the judgmént be not paid, one acre of appellants’ property described by metes and bounds should be sold as a matter of enforcing the lien. From the judgment so entered, appellants bring this appeal. For reversal, it is first asserted that the purported lien was defective because it was not sworn to as required by the statute. In the alternative, it is asserted that certain items for materials were erroneously allowed by the court, it not being established by the evidence that these materials were used in the Rasmussen house.

Under the view that we take, there is no need to discuss the second point, for we are firmly of the opinion that the decree must be reversed because of the failure of Horner to make the required affidavit.

Ark. Stat. Ann. § 51-613 (Repl. 1971) provides:

“It shall be the duty of every person who wishes to avail himself of this act (§§ 51-601, 51-604 — 51-626) to file with the clerk of the circuit court of the county in which the building, erection or other improvement is to be charged with the lien is situated, and within one hundred and twenty (120) days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a córrect description of the property to be charged with said lien, verified by affidavit.” [Our emphasis].

While we apparently have no cases exactly in point on the matter presently before us, we have held that substantial compliance with the lien statutes is sufficient for recovery; however, our cases clearly indicate that the making and filing of the affidavit are essential to the validity of a lien. In Georgia State Savings Association v. Marrs, 178 Ark. 18, 9 S.W. 2d 785, the question was whether a proper affidavit had been executed on behalf of W. T. Marrs who sought to enforce a materialmen’s and laborer’s lien upon several properties, and the question in the litigation was whether his lien was superior to certain mortgages held by the appellant company. There, the affidavit was made by Mrs. R. B. Amos, who was the bookkeeper for Mr. Marrs, and this court held that her affidavit was sufficient to meet the requirement of the law. The court then said:

“The applicable statute (§ 6922, C. & M. Digest) requires the lien claimant to file ‘a just and true account of the demand due or owing to him,’ and that it be ‘verified by affidavit. ’ But it is not required that the affidavit be made by the claimant himself. It is a sufficient compliance with the law if the affidavit is made and filed.”

The court cited the case of Terry v. Klein, 133 Ark. 366, 201 S.W. 801, stating:

“The claim of lien made by the interveners, Hayes-McKean Hardware Company, was sworn to before Bob Canton, who attached his seal as a notary public as a part of the jurat, but did not affix the words, ‘notary public,’ after his name, and did not give the venue of the affidavit by reciting where it was taken.
“We think the case of Railway Co. v. Deane, 60 Ark. 524, 31 S.W. 42, is decisive of this question. It was there held (to quote the syllabus): ‘Where, to an affidavit for appeal from a justice’s court otherwise sufficient, but expressing no venue, there is attached a proper jurat showing that the oath was administered to the affiant by a notary public, it will be presumed that the notary acted within his jurisdiction.’ ”

Subsequently, it was stated:

“The court said that swearing the affiant was the essential fact [our emphasis], and that if this were done and the officer administering the oath neglected to attest the fact, this would not render the affidavit a nullity, but that the defect might be cured by amendment. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 14 S.W. 462.”

So, it is apparent that this cpurt has consistently considered the making of the affidavit to be essential. On direct examination, Mr. Horner testified that he personally took the account for lien to the clerk, and that he had signed it. The evidence of Horner on direct examination reveals the following:

“Q Did you ask that it be verified or signed where the Clerk’s signature is to appear?
A Well, I don’t know. The Clerk always signed them when I took them down there.
Q Did you make a request that he sign it or did you depend on the Clerk to sign it?
A I made the request, but I don’t know whether he did it or not. He didn’t?
Q No, it’s not signed. Did you make a request to the Clerk that he sign it?
A Yes, sir.
Q And file it?
A Yes, sir.
Q Did you pay cash for it or do you have a credit account?
A I paid in cash for it.”

On cross-examination, when Horner asked what he did when he walked into the clerk’s office, the record reveals the following:

“A I just went up to the front of the counter and laid it down and told them I wanted to file it.
Q Told who?
A The clerk.
Q Which clerk?
A I don’t know. One of them down there in the office.
Q Male or female?
A I guess it was a female.
Q But you don’t remember, do you?
A No, sir, this has been two or three years ago.
Q That’s right. But do you specifically remember what you said to the clerk or the clerk said to you and what you did?
A I took it in there and laid it down and ask her how much money she needed to file it and she told me a dollar. I paid it and went on back to the office.
Q And that’s all you did the whole time you were there? In other words you laid it down in the form that it’s there and ask her how much that it was and she said a dollar, and you gave her the dollar and then you walked out?
A Yeah.”

The re-direct examination reveals the following:

“Q. Mr. Horner, I ask you if you made a request of the clerk at the time that you b[r]ought the lien in that he verify or did you ask him, do you remember, did you ask him specifically, to him or her — or whoever it was — to verify or did you depend on them to verify it?
A Well, I guess I just depended on them to verify it.”

The lien account is neither verified by the clerk nor does the evidence show that any oath was given. Without question, under our cases, one or the other was essential. In Cox v. State, 164 Ark. 126, 261 S.W. 303 Justice Frank Smith, in quoting from Section 8 of the chapter on Affidavits in 1 R.C.L., p. 765, said:

“To make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for, even though such intention actually did exist, if it was not manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities. ”

To present the picture clearly, let us say that the account filed by Horner contained a claim for some items which he knew he had not furnished to Rasmussen, such fact being provable by the prosecuting attorney. Could Horner have been convicted for perjury under the evidence heretofore set out of what transpired in the clerk’s office? To ask the question is but to answer it, for it is obvious that under the proof it could never be shown that he had sworn to a false material statement.

Actually, to hold with appellee in this litigation, would have the effect of doing away with the requirement of the statute for verification of the lien account, and we have neither the authority, nor the desire, to do this.

Reversed and dismissed.

      Chancery courts may foreclose mechanics’ and materialmen’s liens. See Martin v. Blytheville Water Co. (1914), 115 Ark. 230, 170 S.W. 1019; Carr v. Hahn, (1917), 126 Ark. 609, 191 S.W. 232; and Sims v. Hammans (1922), 152 Ark. 616, 239 S.W. 19.

      The signature does not appear, but testimony reflected that the description of the property which was attached covered his signature.

      The same quote appears in Thompson v. Self, 197 Ark. 70, 122 S.W. 2d 182.


author: George Rose Smith, Justice.

text:
    HOME INSURANCE COMPANY et al v. Charles R. LOGAN
    73-232
    505 S.W. 2d 25
    Opinion delivered February 11, 1974

      Matthews, Turtle, Osterloh ir Weber, by: John I. Turtle, for appellants.

      Harkey and Walmsley, by: Bill H. Walmsley, for ap-pellee.
   George Rose Smith, Justice.

This is a claim for an increase in permanent partial disability benefits under the workman’s compensation act. In 1967 Logan, the claimant, sustained a back injury at work while lifting a piece of furniture. After surgery — a laminectomy and disc fusion — and after the completion of his healing period, Logan was awarded a 20% permanent partial disability. In 1971 Logan’s physician, Dr. Millard, found that the disability had increased to 35% as related to the body as a whole. The Commission accepted Dr. Millard’s evaluation and increased the award accordingly. The insurance carrier contends that there is no substantial evidence to sustain a finding that Logan’s enhanced disability was attributable to the 1967 injury.

Interpreting the testimony in the light most favorable to the Commission’s decision, as is our rule, we find sufficient substantial evidence to support the increased award. We have previously quoted from Larson’s treatise on workmen’s compensation law the rule that is applicable here: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.” Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W. 2d 315 (1960). Hence the question is whether Logan’s heightened disability could be found upon the evidence to be attributable to the original 1967 injury.

Dr. Millard’s testimony amply supports the Commission’s award. He stated at the outset that when he released Logan from medical treatment in 1967, he anticipated that the patient might have additional difficulty with his back. “This type of back trouble sometimes does have further trouble. . . . Well, it might arise by just turning over in bed, tying his shoe, it might arise from walking, or standing on his feet eight hours a day working, or something of this sort.” Later in his testimony Dr. Millard made such statements as: “It all dates back to the original injury. . . . Now, as far as I’m concerned, the symptoms he was having at that time [1971], and the myelogram findings, subsequently date back eventually to the original injury. I can’t pinpoint any one time that this [increased disability] started or happened.”

After the termination of Logan’s original healing period he obtained work with other employers and was involved in an automobile accident. The appellants argue in -effect that Dr. Millard could not say with reasonable medical certainty that Logan’s worsened condition was due to the first injury rather than to later incidents.

We cannot say that Dr. Millard’s testimony lacks substance. The most serious later incident, upon which the dissenting commissioner relied heavily, occurred about August 1, 1970. Logan consulted Dr. Millard a few days later. In reporting to the insurance carrier Dr. Millard wrote in part: “I saw Mr. Logan again on August 7, 1970, because of a renewal of symptoms. He gave a history of about one week ago lifting a butane tank and twisting to one side and feeling a pop and pain in the back, but particularly with the symptoms being particularly painful in both legs.” At the end of his letter the doctor said: “I explained to Mr. Logan that his present symptoms, in my opinion, are due to primarily fatigue from attempting to do too much at one time and not get enough rest. I also advised him to wear his brace, for instance in the afternoon, try to get more rest and try to avoid twisting injuries to his spine. I do not feel that he has any significantly severe injury at the present time.”

Thus even at the time Dr. Millard did not attach causative importance to the butane tank incident. Moreover, it was not until the expiration of a full year, during which Logan was usually able to work, that Dr. Millard reached the conclusion that Logan’s disability had increased to 35%. Logan himself testified that the pop and pain in his back didn’t hurt any more than a lot of other things.

As we have indicated, Dr. Millard anticipated from the beginning that Logan might experience additional back trouble, which could result from such everyday activities as walking, tying a shoe, or turning over in bed. Under the rule that we follow, such aggravations of the original disability are compensable in the absence of an independent intervening cause. We have frequently said that it is the Commission’s duty to draw all legitimate inferences in favor of the claimant and to give him the benefit of the doubt in making determinations of fact. Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968); Burrow Constr. Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484 (1965); Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S.W. 2d 252 (1943). In the case at bar we find adequate substantial evidence to support the Commission’s decision.

Affirmed.


author: Lyle Brown, Justice.

text:
    Ray G. VANDEVIER v. Gladys CHAPMAN
    73-217
    505 S.W. 2d 495
    Opinion delivered February 11, 1974
    [Rehearing denied March 18, 1974.]

      Hobbs and Longinotti, for appellant.

      Laser, Sharp, Haley, Young ér Boswell, P.A., for ap-pellee.
   Lyle Brown, Justice.

A personal injury action was instituted by appellant, Vandevier, against appellee, Chapman. At the time suit was filed, appellee was living in Arizona and service was had upon the Secretary of State. The trial court sustained a demurrer to appellant’s complaint and the appeal is from that order. Appellant. contends that the complaint stated a cause of action; alternatively, appellant avers that if the complaint did not state a cause of action, the unanswered request for admissions supplies the deficiency.

Appellant alleged that on the date of the incident he was visiting in the home of appellee in Garland County; that appellee explained to appellant that appellee was planning to sell her car; and that appellee requested appellant to check the condition of the car. Appellant alleged that while he was checking the car it began rolling and knocked him to the ground, causing specified injuries. Then the paragraph alleging negligence is as follows:

That the injuries and ultimate damages suffered by the plaintiff (appellant) were the direct and proximate result of the negligence of defendant (appellee) in that she had failed to advise the plaintiff (appellant) that the automobile in question had not been placed in gear and had failed to advise the plaintiff (appellant) that the emergency brake had not been set on the automobile.

The complaint was demurrable for failure to state facts which would constitute a cause of action. Ark. Stat. Ann. § 27-1115 (Repl. 1962). The allegations are more in the nature of conclusions rather than facts; it is not alleged that appellee had knowledge of the facts alleged with respect to the car being out of gear and the brake not being set; and it is not alleged as to specifically what incident caused the car to roll.

The basic infirmity in the pleading is the stating of conclusions and we have held such to be insufficient to state a cause of action. Ready v. Ozan Investment Co., 190 Ark. 506, 79 S.W. 2d 433 (1935).

This brings us to the allegation that the unanswered request for admissions supplies any deficiency in the complaint. The trial court held that the request for admissions could not be considered because, there was no certificate of service attached. On July 2, 1973, the court ruled that the request for admissions could not be considered by the court for the reason that there was no certificate of service attached to the copy of the request filed in the court. On the date of the ruling there was nothing in the record to show that the request for admissions had been received by the appellee or her attorney. We do find that subsequent to the ruling there was filed a receipt showing that appellee had signed for a registered document from appellant’s counsel; however, that evidence came too late because it had already been ruled upon. It is also noted that no copy of the request was delivered to appel-lee’s counsel, notwithstanding he had filed an answer. In fairness, however, to counsel for appellant it should be stated that counsel insisted he never received a copy of the answer. Finally, we note that the request for admissions is not set out in the abstract; we are not obliged to ferret the request out of the transcript.

Affirmed.


text:
    John O. MAY v. Dell EDWARDS
    73-252
    505 S.W. 2d 13
    Opinion delivered February 11, 1974

      Jack L. Lessenberry, for appellant.

      Clifton H. Hoofman, John M. Fincher and John T. Harmon, for appellee.
   John A. Fogleman, Justice.

John O. May was serving as a duly elected and qualified alderman for the second ward of the City of North Little Rock when he was found guilty of the crime of abortion after a jury trial in the Circuit Court of Pulaski County. A sentence of four years’ imprisonment and $1,000 fine was entered on May 23, 1972. On June 26, 1972, the North Little Rock City Council elected Dell Edwards to the position theretofore held by May. May promptly instituted a suit against Edwards and the council in the Circuit Court of Pulaski County, seeking to oust Edwards. It is stipulated that the judgment entered in that case declared that May was ineligible to serve as alderman and that Dell Edwards was the properly installed alderman of the second ward. No appeal was taken from that judgment, so it has become final.

The judgment of conviction in the abortion case was reversed here on April 9, 1973, and the case was remanded for a new trial. See May v. State, 254 Ark. 194, 492 S.W. 2d 888. On April 12, 1973, May instituted this suit against Edwards, seeking reinstatement to the office, and alleging that the election of Edwards was void. Edwards answered, pleading that the judgment in the first case was res judicata, that since he was the incumbent duly elected to the office, no vacancy existed, that he was not subject to removal and that there was no authority for the reinstatement of May. The circuit court dismissed May’s complaint, holding that from and after June 26, 1972, Edwards was the duly elected and qualified holder of the position, that there was neither evidentiary nor legal basis which would justify his removal and no provision of law for May’s reinstatement. We agree with the circuit judge.

The disposition we make of this case renders the question whether appellant invoked the proper remedy or attempted to invoke the common law remedy of quo warranto moot. We shall consider this proceeding, for the purposes of this opinion, as if it were properly brought under Ark. Stat. Ann. §§ 34-2201, 2203 and 2209 (Repl. 1962).

Appellant contends Edwards has no right to the office and the trial court erred in failing to reinstate May. Appellant challenges Edwards’ title to the office, arguing there is a grave question as to Edwards’ official status, because there was no judicial declaration or affirmative finding by the city council that May was ineligible to serve before the council elected Edwards, and that the council’s action was based only upon a declaration by the City Attorney of North Little Rock that a vacancy existed. Appellant overlooks the fact that the judgment in the first case is res judicata of these issues. According to the stipulation of the parties, these very issues were determined by a final judgment of the circuit court, and he was precluded from raising them in this proceeding. Walthour v. Finley, 237 Ark. 106, 372 S.W. 2d 390; Morrow v. Raper, 222 Ark. 414, 259 S.W. 2d 499. That judgment, however, was conclusive only upon the issues presented and facts existing at the time and not upon any particular matter which was not necessarily within the issues presented or which could not have been litigated in the prior proceeding. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432; Swanson v. Johnson, 212 Ark. 340, 205 S.W. 2d 702; Coleman v. Mitchell, 172 Ark. 619, 290 S.W. 64. Insofar as the record discloses, there was no issue in that proceeding as to the tenure of Edwards or the possible reinstatement of May, and it does not appear these matters could have been litigated at that time. Inasmuch as appellee has not shown that these issues were or could have been raised in the earlier proceeding, we cannot say appellant is barred from raising them now. Crow Oil & Gas Co. v. Drain, 171 Ark. 817, 286 S.W. 971. In determining the issues presented here, however, May must rely upon the strength of his own title to the office and not upon the weakness of Edwards’. Langston v. Johnson, 255 Ark. 933, 504 S.W. 2d 349. In this instance, Edwards is the incumbent and will continue in office unless May is entitled to reinstatement.

There seems to be no precedent on the exact circumstances prevailing here. Our constitution provides that no person convicted of an infamous crime shall be capable of holding any office of trust or profit. Article 5, Sec. 9. We have said this language means the fact of conviction disqualifies one from holding public office. Ridgeway v. Catlett, 238 Ark. 323, 379 S.W. 2d 277. We need not consider whether, in May’s case, the conviction, even though reversed, would forever bar him from holding public office. Although no enabling legislation seems to have ever been passed, there is no occasion for our considering whether the constitutional provison is self-executing. We must accept the premise that, as between these litigants, these matters were concluded by the earlier litigation.

The North Little Rock Council, acting upon the premise that a vacancy existed, proceeded to elect an aider-man. Apparently the only applicable statute is Ark. Stat. Ann. § 19-1026 (Repl. 1968). That statute provides that whenever a vacancy shall occur, by any reason, in the office of alderman in a city of the first class, the council shall elect an alderman to serve for the unexpired term. We take this statute to govern in this case, which means that Edwards was elected for May’s unexpired term and that he will serve for that term, unless unforeseen events should earlier end his tenure. It is agreed there is no basis for his removal from office for cause. The only contention is, in effect, that his tenure ended when May’s conviction was reversed.

As conceded by appellee’s attorney in oral argument, either result we might reach would have harsh consequences, either to May, the duly elected alderman, who is again presumed to be innocent of the charges against him, or to the people of North Little Rock because of the uncertainty which would result if Edwards could serve only upon condition that May’s conviction was not reversed. Not only would there be an undesirable confusion if May should be reinstated, but it would be compounded if, while again serving, he should be found guilty upon retrial before the same term expired.

May takes the position that the reversal of his conviction made that judgment a nullity, and that the matter must be viewed as if there had never been a trial or any other action on the charges against him in that case, and that he is restored to all rights he had before the rendition of that judgment. There is certainly some support for that view in our cases. See Palmer v. Carden, 239 Ark. 336, 389 S.W. 2d 428; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240; Clark v. Arkansas Democrat Co., 242 Ark. 133, 413 S.W. 2d 629, supplemental opinion, 242 Ark. 497, 413 S.W. 2d 633; Morgan Engineering Co. v. Cache R. Drainage Dist., 122 Ark. 491, 184 S.W. 57. It must be remembered, however, that the rights said to be restored are ordinarily those existing between the parties only, unaffected by any overriding public interest.

The only Arkansas cases having any bearing whatever on the reinstatement of a removed public official are Winfrey v. State, 133 Ark. 357, 202 S.W. 23, and Gray v. Independence County, 166 Ark. 502, 266 S.W. 456. Both are readily distinguishable, and there is little comfort to either May or Edwards in them. In Winfrey, the removal was itself a part of the final judgment reversed on appeal. We there declared that our reversal disposed of the order of removal, but not of a preliminary suspension which, if valid, would remain in effect, because it was mandatory, under the applicable statute, after indictment of an officer charging certain offenses. Although we held the suspension to be void because the charges were not of the type covered by the statute, we did not consider any question of reinstatement or removal of an incumbent selected to fill a vacancy, temporarily or otherwise. In Gray, we also treated the status of an officer under a suspension pursuant to a statute specifically requiring suspension of a county or township officer, indicted for any of certain specified crimes, until the charge was tried. We only held that the suspended Officer, after his acquittal, was not entitled to recover from the county the salary of the officé accruing during the period of his suspension. We used language in Gray, however,, which points toward the result we reach here. There we said:

In the case of Allen v. State [32 Ark. 241], the court said:

Offices are not regarded in this country as grants or contracts, the obligation of which cannot be impaired, but rather as trusts or agencies for the public. They are within the power of the Legislature, except so 'far as the Constitution may forbid interference with them. Coffin v. State ex rel. Norton, 7 Ind. 157.
In the case of Sumpter v. State [81 Ark. 60, 98 S.W. 719], the court quoted with approval from a decision of the Supreme Court of the United States, to the effect that the nature of a relation of a public officer to the public is inconsistent with either a property or contract right, and that the salary is not compensation for services secured by contract, but compensation for services actually rendered. The general rule is that, if the office is vacant, it becomes, as to the suspended person, for the time being, as though it did not exist, and, as to the public, the. person appointed to fill the last vacancy is the sole incumbent of the office.

Cases from other jurisdictions are of little more assistance. They are based upon constitutional provisions and statutes differing from ours. We can give no regard to those holding that an officer improperly removed is entitled to reinstatement. Such was the case in Winfrey. But as previously pointed out, the right of May to question the propriety of his removal has been foreclosed. Cases such as Hayes v. Hudson County Board of Chosen Freeholders, 116 N.J. Super. 21, 280 A. 2d 838 (1971), based upon specific statutes providing for or requiring reinstatement upon reversal of a conviction are certainly inapposite.

We find the case of State v. Chapman, 187 Wash. 327, 60 P. 2d 245 (1936), persuasive here, although there are distinctions which can be made. There was, at the time, a Washington statute declaring that conviction of a felony entailed forfeiture of office as a part of the penalty and disqualified the officer convicted from ever holding public office. Another statute provided that a vacancy in office should result upon the officeholder’s conviction of an infamous crime. There the officeholder was convicted of grand larceny and then ousted by a judgment in a separate proceeding, from which he did not appeal. Subsequently, his conviction was reversed on appeal. The officer then brought suit for reinstatement. The Washington court held that, insofar as this officer was concerned, the office became extinct when the judgment of ouster was rendered, that, under a statute strikingly similar to Sec. 19-1026, it was the duty of the board of county commissioners to fill the vacancy and that the successor chosen by them filled the office until the next general election or until his successor was duly elected and qualified. The court justified its statutory construction by these considerations:

(1) The public interest demands that public affairs be administered by officers upon whom rests no stigma of conviction for infamous crimes; and (2) the proper administration of public business requires a constancy and continuity of service and therefore demands that it shall not be subjected to the hazards of frequent and uncertain changes of officers during a specified term of office.

Assuming that the original judgment of conviction created a vacancy in the office, as we must by application of res judicata, we also find the case of Becker v. Green County, 176 Wis. 120, 184 N.W. 715 (1921), heavily relied upon by the circuit judge, to be highly persuasive. There the court found that reversal of a conviction of an infamous crime did not entitle the officer involved to recover the salary of the office for the period between his ouster and the end of his term prior to the reversal, because there was no applicable statute providing for restoration to office or for payment of the salary upon reversal of such a conviction. Other cases, distinguishable upon the facts, but nevertheless persuasive on the ultimate issue here include State v. Jurgensen, 135 Neb. 136, 280 N.W. 886 (1938); McKannay v. Horton, 151 Cal. 711, 91 P. 598 (1907); and Smith v. Noeppel, 120 N.Y.S. 2d 466 (1953). The prime consideration governing those decisions was the recognition that the public interest is paramount to that of the unfortunate incumbent. Throughout these cases, as well as Jolliff v. State, 215 So. 2d 234 (Miss. 1968), where an opposite result was reached, the courts view a removal of one convicted as imposed in the interest of the public and sound government, and the public office as the property of the people and not of the officeholder.

Sound policy expressed in the language of our own decisions and the logic of the cases above cited compel us to the conclusion that, harsh as the result may be insofar as May’s rights are concerned, the interest of the public lies in avoiding a vacancy and in having a degree of stability in the administration of the public business unlikely to exist when an incumbent serves an indefinite and speculative term and the office is subjected to frequent and uncertain changes during a specified term.

We must consider the public interest as paramount. In the absence of any statute providing for reinstatement or restoration to office under these circumstances and upon the basis of the facts and issues presented in this case, we hold that May is not entitled to reinstatement and that Edwards’ term extends for the remainder of May’s unexpired term.

The judgment is affirmed.

      While in Jolliff the Mississippi court directed reinstatement of the officer whose conviction was reversed, that court based its decision upon the fact that only an interim successor had been named and that a successor had not been elected to fill the vacancy which had existed. The court took great pains to point out not only that its ruling was based entirely upon the unusual and peculiar facts and posture of the case but that an entirely different situation would have been presented if a successor had been regularly elected to the. office according to law.