author: Carleton Harris, Chief Justice.

text:
    Hall v. State.
    5097
    372 S. W. 2d 603
    Opinion delivered December 2, 1963.

      Thorp Thomas, for appellant.

      Bruce Bennett, Attorney General, by Jack L. Lessen-berry, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

This action relates to contempt of court. The facts are as follows:

Harold Hall, an attorney of Pulaski County, represented one Early Tolbert, Jr., in certain cases before the court, and on July 17 of this year, Tolbert entered a plea of guilty to the crime of robbery, and was sentenced to 21 years of imprisonment by the Pulaski County Circuit Court (First Division). In open court, Mr. Hall asked the court if he (Hall) could deliver the defendant to the State Penitentiary. The court thereupon refused the request, and the commitment was turned over to the office of the Sheriff. Subsequently, Hall contacted Sam Hallum, a deputy sheriff, and obtained his permission to deliver the prisoner to the penitentiary. Hallum testified, “I did it without taking a second thought. I worked with Harold on the Police Department.” Upon learning of Hall’s action, the Circuit Court issued an attachment direeling the Sheriff to take Hall into custody and have him appear before the Circuit Court of Pulaski County on the 19th day of July at 10:00 A.M. to answer to contempt of court. 3****At the appointed time, Hall appeared, with counsel in his behalf, was informed of the nature of the charge filed, entered his plea of not guilty, and the court then proceeded to make its statement, and hear witnesses. The court announced,

“In open court, Mr. Hall asked me if he could deliver this defendant to the State Penitentiary. I told him no, he could not, that I didn’t think the defendant was entitled to any consideration and that this Court did not want that done. ’ ’

Hall admitted that the court had used “Words to that effect. * * * I understood you denied my request. ” "When interrogated as to how he obtained the prisoner, Hall replied that he went to the Sheriff’s office, talked to.Deputy Sam Hallum, and advised the deputy that “I had asked the Court for permission to take him and the Court denied me permission. I asked if I could take him down the next morning.” With Hallum’s permission, Hall delivered the .prisoner to the penitentiary.

■ At the conclusion of the hearing, the court fined Hall $50.00 for contempt. Counsel requested time to prepare the record for certiorari, and the request was granted. Pursuant thereto, the record has been lodged here, and we are asked to review the proceedings of the trial court and to declare the judgment void.

Respondent, the State, first presents the question of. whether proper procedural steps have been followed to bring this matter to the court’s attention, but we bypass that proposition, and proceed to decide the matter on its merits.

Petitioner states,

“There is but one question presented in this case. Did the Court have jurisdiction to punish a person for an alleged contempt committed outside the presence and hearing of the Court without first being informed with reasonable certainty of the facts constituting the offense; without affidavits calling the Court’s attention to the matter and in derogation of the statute involved.

“The answer to the above question is obvious. It could not.”

As authority for this position, petitioner primarily relies upon York v. State, 89 Ark. 72, 115 S. W. 948. We do not agree that the York case is controlling.

There, an injunction was issued by the Chancery Court restraining J. B. York and his brother, Robert York, from holding a stockholders’ meeting (Bluff City Lumber Company). Subsequently, the'court commanded the defendants to appear before the court and show cause why they should not be punished for contempt for refusing to obey the injunction, No affidavit, information, or statement of, facts was presented to the court as a foundation for the issuance of the citation for contempt. York and his brother appeared before the court and requested time to file a response and prepare their defense. The court denied this request, and proceeded to take testimony as to the contempt charged, found the defendants guilty, and assessed the punishment of J. B. York at a fine of $10,000 and his brother, Robert York, at a fine of $5,000. The matter was presented to this court through petitions for a writ of certiorari. We quashed the two judgments for the fines, but the statute there involved is entirely different from the statute here under consideration. The York opinion quotes the statute, Section 3989 of Kirby’s Digest, which is identical to Ark. Stat. Ann. § 32-101 (Repl. 1962). The statute reads as follows:

“Disobedience of an injunction may be punished by the court, or by the judge thereof, or any circuit judge in vacation, as a contempt. An attachment may be issued by the court or judge, upon the production of evidence by affidavit of the breach of the injunction, against the party committing the same. And unless he purges the contempt, if in vacation, the judge may commit him to jail until the sitting of the court, or take a bond with security for his appearance to answer for the contempt at the next term of the court, and in the meantime to obey the injunction.”

The present case does not relate to violation of a civil injunction, and the statute involved is Ark. Stat. Ann. § 34-903 (Kepi. 1962), which reads as follows:

“Contempts committed in the immediate view and presence of the court, may be. punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”

This statute (Section 722 of Kirby’s Digest, which is identical to Section 34-903) is discussed in CarlLee v. State, 102 Ark. 122, 143 S. W. 909, and the distinction, herein noted, pointed out. The court then stated:

“Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto-—his day in court.”

Here, the accused was informed of the basis of the alleged contempt in the attachment; was further advised of the facts constituting the charge at the outset of the hearing, and was given the opportunity to make his defense, which he proceeded to present. Unlike York, no request was made for a continuance for the purpose of additional time in which to prepare the defense; petitioner was present with counsel, entered his plea of not guilty, and the order recites, “by agreement' the case is submitted to the court. ’ ’ Section 34-903 was fully complied with. Certainly, petitioner suffered no prejudice in any manner under the procedure followed.

We think logic unquestionably supports the position taken. As stated in the CarlLee case,

“The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt * * * without an affidavit of some third person first made setting out the charge, would be pitiful in the extreme, and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third person.”

Petitioner also asserts that there was really no order by the court prohibiting him from transporting the prisoner to the penitentiary, and therefore no violation of Ark. Stat. Ann. § 34-901 (Repl. 1962). This section sets out the acts which constitute contempt, and petitioner, in making this assertion, has reference to Provision 3 of the section, which states that the court may punish persons guilty of “wilful disobedience of any process or order, lawfully issued or made by it.” It is true that the court entered no Avritten order, but to accept petitioner’s argument, Avould simply be to place form before substance. If Hall had made the request of Judge Kirby on the streets, or in the corridors of the Courthouse, a different situation Avould be presented, and petitioner’s argument might Avell contain merit. But here, the request and denial took place in open court. Hall apparently recognized the fact that he should obtain the court’s approval before taking the prisoner to the penitentiary; it is clear that he distinctly understood that his request Avas refused. The refusal, in practical effect, Avas entirely the same as if the court had stated, or Avritten, “You are hereby ordered not to deliver Tolbert to the penitentiary.”

For the reasons herein set forth, the petition is denied.

       The record does not disclose how the matter was brought to the judge’s attention.

       Bond was set at $100.00, which was made by Hall.

       Another attorney was cited, together with Hall, and the charge against the former was heard at the same time. The proof reflected that' this attorney had three clients at the penitentiary that he desired to see, and accordingly went with Hall and the prisoner, the two attorneys sharing expenses. The evidence showed that this lawyer had never represented Tolbert, had never seen him in court, never conversed with him, and had nothing to do with making arrangements to deliver the prisoner to the penitentiary. The charge against this attorney was dismissed at the end of the hearing.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Kuester v. Kuester.
    5-3128
    372 S. W. 2d 606
    Opinion delivered December 2, 1963.
    [Rehearing denied Jan. 13, 1964.]

      B. W. Tliomas and Earl Mamncler, for appellant.

      Roy Mitchell, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit involving property rights between ,a couple previously divorced. Mr. Harvey L. Kuester and Mrs. Eileen Kuester were married in 1944; and in September 1958 the Garland Chancery Court awarded Mrs. Kuester a divorce, but expressly retained jurisdiction for the determination of the property, rights. In February 1959 the Court determined the property rights of the parties; and as to. one tract .own^d by them as tenants by entirety (and hereinafter referred-to as the “entirety property”), the decree recited: ,

£ That the' real property ' owned by Plaintiff and Defendant as an estate by the entirety, situated in Garland County, Arkansas, and fully described above, shall be offered for private sale, for a price of not less' than $7,500.00; that out of the proceeds of such- private sale, the sum of $4,000.00 shall be paid to Mrs. Martha Kuester of Chicago, Cook County, Illinois, prior to division of the net proceeds; . . . (Emphasis supplied.)

No one could be found who would pay $7,500.00 for the entirety property; and in September 1962 Mrs. Eileen Kuester filed a petition in the same cause alleging: that $6,000.00 was the best offer obtainable for the entirety property; that it should be sold for that amount; that Mrs. Martha Kuester was deceased; that the $4,000.00 stated in the 1959 decree as going to Mrs. Martha Kuester was a gift and had lapsed; and that the price of $6,000.00 received from the entirety property should be divided equally between Harvey L. Kuester and Eileen Kuester. Harvey Kuester, by proper pleadings, agreed to the sale of the entirety property for $6,000.00, but claimed the $4,000.00 (recited in the decree of February 1959 for Mrs. Martha Kuester) was not a gift but was repayment of a loan; and that such amount should go to the estate of Mrs. Martha Kuester, deceased.

The Chancery Court agreed with Harvey Kuester on the $4,000.00 item and ordered the entirety property sold for $6,000.00, with $4,000.00 to go to the estate of legal heirs of Mrs. Martha Kuester. Mrs. Eileen Kuester has appealed regarding the $4,000.00 item and urges three points, being:

“ (1) The lower court erred in ordering the payment of any monies to Mrs. Martha Kuester, not a party to this suit, from the proceeds of the sale of an estate of the entirety.

“ (2) The lower court erred in not holding that the payment of Four Thousand Dollars to Martha Kuester was a gift or a promise to make a gift; and lapsed on her death of Donee.

“(3) The lower court erred in holding that the payment of any monies to Martha Kuester or the estate of Martha Kuester was a binding obligation of Appellant, and does not do equity between the parties.”

We consolidate the three points for consideration. Only the parties, Mrs. Eileen Kuester and Mr. Harvey Kuester, testified in the hearing from which comes this appeal. Mrs. Eileen Kuester admitted that in 1945 she and her then husband, Harvey Kuester, received $4,000.00 from Mrs. Martha Kuester, mother of Harvey Kuester; that the money was used on the purchase price of a home in Chicago; that when Harvey and Eileen Kuester moved to Hot Springs they sold the Chicago property and used the proceeds to apply on the purchase of the entirety property here involved. Mrs. Eileen Kuester testified that she never signed any note to Mrs. Martha Kuester for $4,000.00 and never paid Mrs. Martha Kuester any interest; but admitted that she did not know whether Harvey Kuester had paid interest on the amount of $4,000.00.

Harvey Kuester testified that the $4,000.00 was a loan to Harvey and Eileen Kuester from Mrs. Martha Kuester; that no note was executed to evidence the amount; but for a number of years he paid his mother interest each year on the borrowed money. He testified:

“Q. Now the $4,000.00 that was agreed—at the time the decree was entered, you agreed to the entry of the decree in regard to settlement at that time, did you not?

“A. Yes, sir.

“Q. Was the $4,000.00 mentioned in that decree— the $4,000.00 which you testified you borrowed from your mother ?

“A. Yes, sir.

“Q. It was not a gift?

“A. No, sir, we were in no position to make any gifts of $4,000.00—never.

“Q. Was your mother in a position to make a gift of $4,000.00?

“A. No, sir.

“Q. Was she a widow?

“A. She was a widow for 18 years.

“Q. Did she have any income?

"A. About $43.00 a month Social Security, and I believe $30.00 a month from my sister’s flat, and at that time she supported her sister. ’ ’

Primarily it was a question of which party to believe : the Chancellor saw them and we cannot say that he was in error. That the parties received $4,000.00 from Mrs. Martha Kuester is admitted. There is nothing in the 1959 decree which said the $4,000.00 was a gift to Mrs. Martha Kuester. In 1959 Mrs. Eileen Kuester agreed that Mrs. Martha Kuester was to receive $4,-000.00; and that decree gave Mrs. Martha Kuester a vested interest in the $4,000.00. Mrs. Eileen Kuester has not established by sufficient testimony that the $4,000.00 due Mrs. Martha Kuester should be cancelled.

The fact, that Mrs. Martha Kuester’s estate was not a party to this case, was not urged in the Trial Court and, therefore, cannot be raised here for the first time. If Mrs. Eileen Kuester had thought Mrs. Martha Kuester’s estate or heirs to be necessary parties, she should have asked the Trial Court to make them parties. She may yet protect herself on this point by making a timely application to the Trial Court provided the $4,000.00 has not already been disbursed.

Affirmed.

       Tbe petition also concerned a deed for grave spaces; but. that matter has been agreeably settled between the parties. ‘ ' !


author: George Rose Smith, J.

text:
    McNeal v. Civil Serv. Comm. of City of Little Rock.
    5-3129
    372 S. W. 2d 614
    Opinion delivered December 2, 1963.

      Martin, Dodds & Kidd and Griffin Smith, for appellant.

      Joseph G. Kemp and Jack Young, for appellee.
   George Rose Smith, J.

In, February of 1962 the ■appellaiit, d civil service employee in' the Little Rock health department, was arrested upon a charge of operating a gambling house. Rule 2Í of the Little Rock Civil Service Commission provides that a city employee may be discharged for behavior unbecoming to a gentleman .or of, such a nature as to bring disgrace or disrepute upon a municipal department or any of its members. Before the criminal case was tried the city’s public health director instituted this proceeding against McNeal, under the civil service law. After a hearing the civil service commission ordered that McNeal be dismissed. That order was affirmed by the circuit court. McNeal now contends that his offense was not serious enough to amount to a violation of Rule 21 and that the commission should not have acted until the criminal charge had been disposed of.

It was not necessary for the commission to await the outcome of the criminal case. A criminal charge must be proved beyond a reasonable doubt, but in a civil proceeding a mere preponderance of the evidence is sufficient. Hence even if McNeal had been acquitted in the criminal case the civil service commission might nevertheless have found that he had committed the offense in question. Horn v. Cole, 203 Ark. 361, 156 S. W. 2d 787.

In a proceeding of this kind we review the evidence de novo, as in chancery. City of Little Rock v. Tucker, 234 Ark. 35, 350 S. W. 2d 531. McNeal was charged below with having operated a pinball machine as a gambling device. He owned several amusement machines that were on location at the Snack Shack, a combined beer tavern and pool hall run by his wife. A plain-clothes policeman testified that in the course of his duty he entered this .establishment one evening and succeeded in accumulating twenty free games upon a pinball machine, for which he requested payment from a woman behind the counter. The woman asked him to wait a minute, saying that she didn’t make the payoffs on the machine. In a few minutes McNeal appeared, pressed a button to clear the free games from the machine, and handed the officer a dollar. McNeal was arrested and admitted to two other officers tha!t he had made the payoff, saying that he did so because his wife was busy. On the witness stand McNeal conceded that he gave someone a dollar, but he denied having known what the payment was for. When all the circumstances are considered we think the decided weight of the evidence shows that McNeal knowingly took part in the operation of a gambling device. In fact, there is no real contention to the contrary.

We have no hesitancy in declaring that McNeal’s conduct violated the city’s Rule 21. His behavior was unbecoming to a gentleman; it was of such a nature as to bring him into disrepute as a municipal employee. It must be realized upon reflection that in our system of self-government it is essential that those in the public service demonstrate a high sense of morality. Public employment must be regarded as something more than a mere opportunity to earn a selfish livelihood. If those privileged to be in the public service do not display that basic integrity that the government itself must have, how can the people be expected to maintain their confidence in the system?

The suggestion here, that a public employee must be allowed to engage in professional gambling activities during his off-duty hours, is so greatly opposed to sound principle that we do not think it deserves extended discussion.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Black v. Thompson, Adm'x
    5-3082
    372 S. W. 2d 593
    Opinion delivered December 2, 1963.

      Alston Jennings, Sol J. Russell, G. Byron Smith, Jr. and Reed W. Thompson, for appellant.

      L. A. Ilardin, Carl Langston, for appellee.
   Paul Ward, Associate Justice.

Tbis is tbe fourth appeal to this Court involving some phase of the Ward M. Black Estate. A brief reference to the three former appeals and some of the pertinent background facts will help to clarify the issues presented on this appeal.

Ward M. Black died November 19, 1958. At the time of his death he owned a drug store, valued at about $75,000, located at 4200 Asher Avenue in Little Bock. He left other property (real and personal) valued at about $30,000. The deceased left no children or other lineal heirs, and his closest of kin (disclosed by anyone at that time) was a brother, Walter L. Black. Walter died in August 1962 leaving, as his only heir, one son (Walter L. Black, Jr.) who is the appellant on this ap-' peal. Walter L. Black, Jr. was appointed administrator of the estate of Ward M. Black soon after his death. About ten months thereafter a purported will of Ward M. Black was found in which he gave the drug store to Cecil E. Morton, a clerk in the drug store and of no kin to the deceased. The rest of his estate was given, in varying amounts, to his brother (Walter L. Black), to two sisters-in-law, and to two cousins (one of whom is Clio Thompson). Clio Thompson, as executrix, offered the purported will for probate on October 1, 1959.

First Appeal. When the court admitted the purported will to probate over the objections of Walter L. Black he prosecuted an appeal to this Court. The issue was whether the purported will was a forgery. We reversed the trial court, and remanded the cause for further development. Black v. Morton, 233 Ark. 197, 343 S. W. 2d 437-decided February 27, 1961. Second Appeal. After another trial the court again admitted the purported will to probate as a valid will. On appeal the issue was the same as on the first appeal, and we held the purported will to be a forgery. Black v. Morton, 234 Ark. 360, 352 S. W. 2d 177—decided December 18, 1961. On the third appeal we affirmed an order of the probate court allowing a fee of $2,500 for the attorneys representing Clio Thompson as administratrix of the estate of Ward M. Black. Black v. Thompson, 235 Ark. 725, 361 S. W. 2d 753—decided November 19,1962. It is noted here that the same attorneys who represented Cecil E. Morton on the first and second appeals also represented Clio Thompson on the third appeal and are representing the appellees on this appeal.

Present Litigation. As before stated, on December 18,1961 we held the purported will of Ward M. Black to be a forgery. As things appeared at that time it seemed in order, of course, to close the estate of Ward M. Black. In such event it would have been the duty of Clio Thompson to make a final accounting and deliver the assets of the estate over to Walter L. Black, Jr. However, as- it now appears, certain persons (including Clio Thompson) received information (possibly the latter part of 1961 or the early part of 1962) that Ward M. Black not only had a living brother, Walter L. Black, but also had a living brother, William Edward Black.

At any rate, on August 30, 1962 Clio Thompson, as administratrix of the estate of Ward M. Black, deceased (and others) filed a “Petition for Determination of Heirship” to the estate of the deceased. In this petition it was stated:

(a) She (Clio Thompson) was appointed administratrix in June 1960 and has served constantly since that-date; '(h) Ward M. Black died intestate on November 19, 1958; (c) since her appointment as administratrix she has conducted an extensive and prolonged search for the heirs to the estate of Ward M-. Black; (d) she has finally located the widow and three' children of William Edward Black [died March 20, 1962] who was a brother of Ward M.' Black and Walter L. Black; (e) the said widow’s name is Nannie Black, and the names of the said three children are Floyd Black, Leroy Black (sons) and Mrs. Clifford J. Wilson (daughter).

The above petition was signed and'sworn to by Clio Thompson, by the above named widow and by the children of William Edward Black, deceased.

The prime issue presented to the trial court was whether William Edward Black was a brother of Ward M. Black. If they were brothers, then it must be conceded that one-half of the estate goes to appellant and that the other one-half goes to appellees as their interests appear—otherwise, all the estate goes to appellant. After an extensive hearing, the trial court held, in effect, that William Edward Black and Ward M. Black were brothers. From the above holding, appellant prosecutes this appeal.

Appellees, by the introduction of census reports, court records, photographs, a family bible, and oral testimony, presented to the court the following history of a Black family.

(a) Matthew Anson Black, in the early 1800s, moved from Georgia to northwest Arkansas-—he was married to Lucinda Lowery, (b) Of this union there were born a daughter, Mary Jane Blade, a son, Thomas Jefferson Blade, (and four other children), (c) The said Thomas Jefferson Black and Mary Jane Cooper were married October 2,1873—of this union was born one son, William Edward Blade; they were divorced in 1877, and on April 24, 1884 Thomas Jefferson Black married Fannie Boss; to this union were born Ward M. Blade and Walter L. Black.

Appellant makes no serious effort to disprove the above facts as they relate to a Black family. He does, however, strenuously urge that there is no satisfactory proof that the Thomas Jefferson Black who was the father of William Edward Black is one and the same person who was the father of Ward M. Black and Walter L. Black. In addition, appellant points out certain facts and circumstances which, he says destroy the credibility of appellees’ testimony. Briefly, some of these are: (a) Clio Thompson made no mention of a brother, William Edward, when she named the heirs of the deceased at any time during 1960 and 1961 although she was a cousin of the deceased; (b) Clio Thompson said she didn’t mention the possibility of another heir (William Edward) until May 1962 although the record shows they were working on the family tree in January and February 1962; (c) Appellees’ own testimony shows that Mary Jane Cooper was only thirteen or fourteen years old when she married Thomas Jefferson Black; (d) Although William Edward Black was living in northwest Arkansas during all the extensive litigation over this estate, he never made any claim thereto.

Not overlooking the above suspicious facts and circumstances, we cannot say they are of such force as to conclusively disprove the purported relationship between William Edward Black and the deceased.

It may be conceded that some of these facts (and other facts not mentioned) justify a suspicion as to the good faith of Clio Thompson in her efforts to locate the heirs of the deceased and in her efforts to sustain the validity of the purported will, yet we are unwilling to say they are conclusive proof of her bad faith. It may be pointed out that she was at all times acting on the advice of her attorneys; that she was under no special duty to determine heirship if she thought the purported will was valid, but this duty did arise when the purported will was declared invalid by this Court. It may also be pointed out that appellant (as administrator) had the same duty imposed on him. In all events there is no contention that appellee heirs have been guilty of any misconduct or bad faith and (if they are in fact heirs of the deceased) they should not be penalized for the real or fancied misconduct of someone else.

In addition to the documentary evidence referred to previously, the court heard oral testimony tending to show William Edward Black and the deceased were in fact brothers.

Clio Thompson testified that her mother was Roxie Ann Ross who was a sister to Annie Ross who married Thomas Jefferson Black; that she lived within a mile of them and knew them well; that Ward M. Black and Walter L. Black were sons of Thomas Jefferson and Fannie Black; that Thomas Jefferson Black was the son of Matthew Anson and Lucinda Lowery Black; that Thomas Jefferson Black told her he was once married to Mary Jane Cooper and that they had a son named William Edward Black. Appellant admits the force of this testimony but contends it should not be considered because of her conduct and manifest interest. There is, however, other testimony to support the testimony of Clio Thompson. Anna Hill, a disinterested witness 74 years of age, testified that her mother was Mary Jane Cooper; that William Edward Black was her half brother; that her mother was married to Thomas Black. Also, corroborating testimony was given by two nephews of Thomas Jefferson Black.

In view of the above and of other testimony and documents found in the record, we are unwilling to say the finding of the trial court was against the weight of the evidence. There are other points urged by appellant which we now consider.

Excluded testimony. We see no reversible error in the court’s exclusion of certain testimony. Appellant was allowed to question appellees ’ attorneys to some extent in an effort to disclose the “background” leading-up to the filing of the petition for determination of heir-ship, but the court refused the inquiry to the extent desired by appellant. In our opinion the court’s action was proper. The inquiry was irrelevant to the real issue of whether William Edward Black and the deceased were brothers.

Administratrix fee. The trial court allowed Clio Thompson a fee of $2,500 as administratrix of the Ward M. Black estate. Appellant contends she is not entitled to any fee because of her alleged bad faith, or in any event, she is not entitled to the amount of $2,500. We are unable to agree with appellant on either count. This Court, on the third appeal, refused to condemn her motives, and we find nothing in this record to compel us to change our minds. It is true that she has apparently been very active in trying to establish the heirship of the appellees but she was acting in conformity with Ark. Stat. Ann. § 62-2914 (Supp. 1961) although she stood to gain nothing from her activities. Neither are we convinced that she is not entitled to the full amount of $2,500. She was not only charged with the duties ordinarily required of a personal representative but she was charged with running the drug store and renting the houses and farmland. In the case of Saad, Executor v. Arkansas Trust Co., 225 Ark. 33, 280 S. W. 2d 894, we approved a fee of $5,000 to an executor where the estate was only fifty percent larger than the one here involved. In that case we quoted with approval the following from the case of Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12,

“Being familiar with the services rendered, the judge, in fixing the allowance could act upon his own knowledge of their value, and we would not overturn his findings thereon, unless clearly erroneous.”

We cannot here say the trial court was clearly in error in allowing the fee of $2,500.

Accounting. We have carefully examined the record and find nothing to show that Clio Thompson, as administratrix, failed to account for all of the assets of the estate that were delivered into her possession. The assets were checked out to her on a list, which detailed each item. The list, signed by her, by the appellant and by the co-administrator, showed a total value of $400 for all the articles. This alone seems to effectively refute the contention that Clio Thompson appropriated valuable jewelry to her own use.

Appellant’s claim. Appellant filed a petition to be reimbursed for expenses incurred in defending against the forged will. The statement of costs and expenses was as follows:

Charges of various investigators........................$ 349.32

Charges in connection with examination and testimony of handwriting expert ............................................. 1,070.00

Transcripts for appeals................................................ 828.00

Briefs on appeals ............................................................... 827.70

Deposition costs .................................................................. 440.55

Clerk and Sheriff costs ................................................ 116.60

Travel expense ..................................................................... 180.90

Long Distance telephone ............................................. 55.05

Attorney Fees ........................................................................ 15,000.00

Total .......................................................................................$18,868.12

The court refused to allow the claim or any part of it. In doing so, we think the court erred. Appellees do not appear to deny that appellant paid out all the items of expense above tabulated except the last item of $15,000. As to this item they state: “A probate court has no power or jurisdiction to pay an attorney who renders services to an heir on a private contract.” We agree that appellant had no right to make a contract for legal services which was binding on the court. That is the effect of the holding in Gilleylen v. Hallman, 141 Ark. 52, 216 S. W. 15, and it is also the effect of Ark. Stat. Ann. § 62-2208 a. and e. (Supp. 1961). However, it does not follow that the court, in this instance, does not now have power and jurisdiction to approve appellant’s claim. Not only did the trial court have such power under the statute above mentioned, but we think it also had the power under the general doctrine of unjust enrichment. This rule was succinctly stated in American University v. Forbes, 183 A. 860, 88 N. H. 17, to the effect that a person shall not be allowed to profit or enrich himself unjustly at the expense of another. In this case, as it is now abundantly evident to everyone, the heirs of William Edward Black would not-be in court today and they would not have received one penny from the estate of Ward M. Black had not appellant retained competent legal assistance and had he not made costly preparations in contesting the probation of the fraudulent will. Therefore, we think the trial court should have allowed appellant’s claim in full to be paid out of the assets of the estate. Upon remand the trial court is directed to enter an order in accordance with what we have just said. Otherwise, the decree of the trial court is affirmed.

Affirmed in part and reversed in part with.directions.


author: Sam Robinson, Associate Justice.

text:
    Johnson v. Johnson.
    5-3131
    372 S. W. 2d 598
    Opinion delivered December 2, 1963.

      Richard W. Robbs, for appellant.

      Loohadoo, Gooch é Loohadoo, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Lewis P. Johnson, age about 50 years, is now and has been for a long time, engaged in the florist business in Hot Springs.,‘Appellee, Virginia Kathleen Sturgis Johnson, age 40,- has been a lifelong resident of Arkadelphia. In the. Pall of 1962 the parties considered marriage. Virginia’s father opposed the marriage; he did not think that in the circumstances she was capable of looking after her property. She had considerable assets in a trust that was being administered by trustees, but she also had about $40,000.00 in a savings account. Mr. Sturgis, in an effort to prevent the marriage, had himself appointed guardian of his daughter, but he did not succeed in stopping the marriage. Appellant and appellee were married November 21, 1962. A short time thereafter, Mr. Sturgis had the guardianship dissolved.

About 30 days after the marriage, for the consideration of $32,500.00, paid from her savings account, appellee bought a home in Hot Springs. At her instance, both she and her husband were named as grantees in the deed. Appellee also bought about $8,000.00 worth of furnishings for the house. The parties then went on a trip to California. While on this trip Virginia learned that she was the victim of a cruel hoax; that appellant had ’married her merely for financial reasons.

To her horror appellee discovered that appellant had perpetrated a grievous fraud; that the man who had taken her as his wife, professing his love and affection, was not in love with her at all, but was actually in love with a man; she found love letters the men had written to each other. Upon making this discovery she left appellant promptly, while on the wedding trip, and filed this suit in less than 60 days after the date of the wedding, alleging the indignities that had been heaped upon her. She proved her cause of action. Although appellant contested the action he did not testify. Appellee was granted a divorce, and the decree provides that appellant’s name be stricken from the deed to the above mentioned real property.

On appeal appellant makes no contention that the trial court made an error in granting the divorce, but claims that he should be allowed to keep an interest in the property the appellee so generously placed in his name. He contends that since the property had been conveyed to both parties, resulting in an estate by the entirety, the chancery court could only cause the land to be sold and the proceeds divided, and relies on Ark. Stats. 34-1215. This statute is applicable where a valid estate by the entirety has been created. It has no application in a case of this kind where one of the parties fraudulently caused his name to be added to the deed. The court said in Tuyls v. Tuyls, 171 N. E. 2d 779 (1961): “Equity and good conscience require that a person shall not profit by his own wrong, and if it appears that the property came to the marriage by the sole efforts of the innocent mate and that the rights of third parties have not intervened, he or she may be entitled to its return without regard to who holds legal title.” In the case at bar it does not appear that any third party is affected by the decree.

Appellant is in the same position he would have been if appellee had owned the property in her name and had executed a deed setting up an estate by the entirety, which she could have done under the provisions of Ark. Stats. 50-413, as construed in Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625. Certainly such a deed could be set aside on the grounds of fraud, there being no doubt that deeds can be set aside for that reason. TVe said in Hanson Motor Co. v. Young, 223 Ark. 191, 265 S. W. 2d 501: “Whether fraud existed in procuring a person to sign or become a party to a written instrument is ordinarily a fact question for the jury. Winter Park Tel. Co. v. Strong, 130 Fla. 755, 179 So. 289. While fraud is never presumed, the law requires good faith in every business transaction, and does not allow one party to intentionally deceive another by concealment or false representations. Sanders v. Berry, 139 Ark. 447, 214 S. W. 58. The duty of disclosure also arises where one person is in position to have and to exercise influence over another who reposes confidence in him whether a fiduciary relationship in the strict sense of the term exists between them or not. 23 Am. Jur., Fraud and Deceit, § 81. In Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887, this court held that an act done or omitted which may be construed as fraud because of its detrimental effect, may justify the setting aside of a contract or deed irrespective of moral guilt.” And, in Jackson v. Smith, 226 Ark. 10, 287 S. W. 2d 571, we said: “That the deed from Mrs. Collins and Mrs. Jackson to Mr. Smith and Mr. Norvell is within the ‘family settlement’ rule is too clear to admit of doubt. Pfaff v. Clement, 213 Ark. 852, 213 S. W. 2d 356, is complete authority for such conclusions. But even as a ‘family settlement’, the deed cannot be upheld if the evidence shows that either fraud or imposition was practiced.”

Appellant cites several cases touching on the authority of the chancery courts of this state to dissolve an estate by the entirety, but none of the cases are in point; they do not deal with a situation where an estate by the entirety has been brought about by fraud practiced by one of the parties.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Reed v. Humphreys.
    5-3084
    373 S. W. 2d 580
    Opinion delivered December 2, 1963.
    [Rehearing denied Jan. 13, 1964.]

      Mahony é Yocum, for appellant.

      Spencer & Spencer, for appellee.
   Jim Johnson, Associate Justice.

This suit is for personal injuries resulting from a collision. between an automobile and a truck. On December 11, 1959, appellee William F. Humphreys was one of two passengers in a car driven by Jimmy Clemons en route from Hampton to Calion. Clemons ’ car collided with the side of a tractor-trailer driven by appellant Augusta Reed, an employee of appellant C. F. Wright. Clemons was killed and the two passengers injured. Appellee filed suit against appellants in Calhoun Circuit Court. Judgment was given on a jury verdict of $4,000.00 for appellee, from which appellee appealed, Humphreys v. Reed, 234 Ark. 861, 355 S. W. 2d 281, and on March 19, 1962, this court reversed and remanded the cause for a new trial.

On October 31, 1962, after a new trial, the jury returned a verdict for appellee for $30,000.00. In this case appellants have appealed from the judgment on the verdict.

The first point urged for reversal is that the trial court erred in excluding opinion testimony of the Arkansas State Police officer who investigated the collision During direct examination, after testifying at length about the physical facts he found at the scene of the collision, the officer was asked, “From the physical facts that you found in your investigation, did you form an opinion as to the point of impact?” Appellee objected, and court sustained the objection, excluding this opinion testimony.

We have had occasion to review admissibility of opinion testimony several times recently. Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137; Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436; Waters v. Coleman, 235 Ark. 559, 361 S. W. 2d 268. In each of these cases this court applied the rule contained in Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942, that, “The subject-matter of these questions did not call for the opinion of experts. The facts of the occurrence were not beyond the knowledge and experience of any ordinary man to understand and draw conclusions from them, when detailed by eye-witnesses. Therefore the expert testimony was not competent, and the court did not err in so holding.”

The collision here in question was uncomplicated and there were photographs of the automobile, truck, and the scene of the accident, showing gouges and marks on and off the road, as well as testimony of witnesses who vividly described the conditions prevailing and the scene. The police officer’s testimony conflicts in part with testimony of some of appellee’s witnesses who arrived at the scene before the officer; however, virtually the only fact testified to by the officer not already clearly covered by testimony of witnesses for both appellee and appellants was the location of debris on the highway, which the officer testified about, in detail and at length. As was stated in the Waters case, supra, “The facts to be determined were not complicated. This was a relatively simple collision. Certainly there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusions. The state of the record being thus, we find that the trial court erred in allowing appellee to resort to such expert opinion.”

It follows, therefore, in the present case, that the trial court committed no error in excluding the police officer’s opinion testimony. In so holding, we take this occasion to restate the rule so succinctly stated in Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595, “Opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way. ’ ’

Appellants next urge that the trial court erred in refusing to give their Instruction No. 14, which reads as follows:

“The defendants have pleaded that the plaintiff and the driver of the car in which he was riding were engaged in a joint enterprise and because thereof, negligence of the driver, if any, is imputable to the plaintiff, that is, that the negligence of the driver, if any,, would have the same effect as negligence of the plaintiff.

“If the plaintiff and the said Clemons, the driver of the automobile, were, at the time of the collision, using the automobile for a common purpose, that is, a mutual purpose, and if each had equal right over the management and operation of the automobile and equal right to govern and direct the movements and conduct of each other with respect to the purpose for which the automobile was being used, then the plaintiff would be responsible for negligence of the driver, if any, and such negligence would, in effect, be the negligence of the plaintiff. ’ ’

Appellants, in their answer, pleaded that appellee and Clemons, the driver, were engaged in a joint enterprise. In a recent case, Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744, this court discussed joint enterprise, or joint venture, as follows:

“Prosser on Torts (2d Ed.), § 65, discussing the law of joint enterprises, states that:

“ ‘The prevailing view is that a joint enterprise requires something beyond the mere association of the parties for a common end, to show a mutual ‘right of control’ over the operation of the vehicle—or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extend as- the driver. In the absence of circumstances indicating such an understanding, it has been held that . . . fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise. ’

“Many cases have denied the existence of' a joint enterprise where nothing was shown except that two fellow employees had been riding together upon a common mission in the course of their employment. [Cases cited.]

“In the case at hand the testimony does tend to establish the first requirement, a common purpose. But they do not show that Yount agreed that Woodard was entitled to an equal voice in the control of the car or that, if the two had been riding in Woodard’s automobile, Yount would have had an equal voice in its control. (The latter situation is important, because any control that Woodard might have exercised as a superior employee would not satisfy the requirement of equality of control.)' Joint control and joint responsibility should go hand in hand; neither should exist without the other. If the passenger shares the responsibility for the physical control of the vehicle then it is proper for him to share the liability for the driver’s negligence. But if the responsibility of control is not shared then the liability ought hot to be shared. In the case at bar the trial court’s error lies in permitting the jury to infer the existence of the second requirement from proof of the first, which in effect. amounted to doing away with the second requirement altogether.”

The testimony here relative to the three men traveling together is contained in the direct examination of Randall Kitchens, the other passenger, and appellant. Kitchens testified as follows:

‘‘Q. Do you know the plaintiff in this case, William F. Humphreys?

A. Yes, sir.

Q. Did you know Jimmy Clemons during his lifetime?

A. Yes, sir.

Q. On or about December 11, 1959, were you working with them at the Calion Lumber Company in Calion, Arkansas ?

A. Yes, sir.

Q. On that morning did you see both of those boys? A. Yes, sir.

Q. Where did you meet them?

A. At the Texaco station.

Q. Right down a block here from the courthouse? A. Yes, sir.

Q. What time of the morning did you all get together?

A. About six-fifteen.

Q. Where w.ere you going that morning?

A. To work at Calion.

Q. Were all of you -working for Calion Lumber Company?

A. Yes, sir.

Q. What time did you have to be at work?

A. At seven o’clock.

Q. Whose car were you going down there in?

A. In Jimmy Clemons’ car.

Q. And he picked you up at the Texaco station?

A. Yes, sir.”

Appellee testified as follows:

‘ ‘ Q. Oil that morning did you meet Jimmy Clemons and Randall Kitchens, who just testified, to go to the job at Calion?

A. Yes, sir.

Q. Where did you meet them?

A. At the Texaco station on the corner, at the red light,

Q. You all got in Jimmy Clemons’ car and went on down toward Calion?

A. Yes, sir.”

Appellants forcefully contend that the trial court erred in refusing to give the above quoted instruction which they urge presented appellants’ theory of the case. In support of this contention appellants quote from Western Coal & Mining Co. v. Moore, 96 Ark. 206, 131 S. W. 960, as follows:

“It is error to refuse a specific instruction clearly applying the law to the facts of the case ... It was the theory of the defendant that the accident was caused by a lump of coal which projected over the side of the car, which struck the prop and knocked it out, thereby causing the rock to fall. Evidence was adduced by it at the trial to sustain this contention, and defendant had a right to have this theory of the case presented to the jury in concrete form.” [Emphasis ours.]

As brought out in the Woodard case, supra, joint enterprise requires both (1) common purpose, and (2) equality of control. In the case át bar, review of the testimony clearly reflects common purpose, but there is a total failure of evidence on the matter of equality of control. Failing thus to produce evidence essential to the establishment of joint enterprise, appellants were not entitled to the instruction offered. Accordingly, the trial court was correct in refusing to give such an instruction. Instructions are to be given on the evidence, not on the pleadings.

We have examined very carefully the other instructions, offered or given, complained of by appellants and find no error.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Fisher v. Fisher.
    5-3123
    372 S. W. 2d 612
    Opinion delivered December 2, 1963.

      Henry S. Wilson, for appellant.

      Greer <& Collier, for appellee.
   Frank Holt, Associate Justice.

The principal issue presented in this case is whether the appellee should have a reformation of the deed she received from the appellant. This deed was part of a property settlement between them preceding their divorce. Following the divorce appellant instituted this suit alleging that he and the appellee owned twenty-six acres as tenants by the entirety. He asked for partition thereof and for his.proper share of the rents collected by the appellee. In her answer appellee denied his assertions. By cross-complaint she contends that she is the sole owner of the disputed property by the terms of their property agreement and that this tract of land was omitted through mutual mistake or fraud from appellant’s deed to her, therefore, the deed should be reformed to include this land. The appellant denied the allegations in the cross-complaint and then pleaded as a defense the statute of frauds and res judicata. Upon a trial of the issues the Chancellor decreed reformation of the deed so as to convey to appellee the disputed lands. From that decree appellant brings this appeal.

For reversal appellant contends that the decision of the trial court is not sustained by sufficient evidence.

At the time of their separation in November, 1959, the appellant and appellee owned as tenants by the entirety: (1) A twenty-six acre farm, or the land in controversy, (2) a lot approximately one hundred thirty-eight feet square on which their home was located, and (3) personal property. The real and personal property were both encumbered by mortgages. Following their separation there is evidence the appellant Avas anxious for a divorce. Appellant’s and appellee’s daughter and son-in-laAv, Mr. and Mrs. McCanless, visited him and his paramour several times. The appellant importuned the daughter and son-in-laAV to act as an intermediary concerning his desire for a divorce. According to appellee, the daughter and son-in-laAAf represented to her that if she AAmuld secure a divorce appellant would be Avilling to give her everything except the truck to Avhich she agreed. Her daughter and son-in-laAv corroborate appellee’s testimony.

There was never any direct contact between appellant and appellee during the negotiations. Pursuant to this understanding Mrs. Fisher, AAdio is unlettered, claimed she took deeds and other papers to her attorney and asked him to draAV up the necessary papers conveying all property to her except the truck. She also employed him to secure her divorce. The laAAryer drafted a deed and bill of sale which were forwarded to the appellant AAdio returned them with his signature. Thereupon the appellee secured her divorce. Appellee did not know the contents of the deed until some two or three months later when she discovered the twenty-six acres were omitted in the metes and bounds description. The appellant then refused to sign a quitclaim deed to this property and testified that when he had the deed read to him, since he was also unlettered, he noticed that the twenty-six acres were not included and otherwise he would not have signed it.

The lawyer testified that he thought he had included everything in the deed according to the papers presented to him. The deed which appellant signed, containing only the homestead, recited as part of the consideration:

“Her [appellee’s] assumption of any mortgage or Deed of Trust which may be outstanding against this property on this date. ’ ’

This property and the twenty-six acres were encumbered by the same mortgage. The bill of sale signed by appellant lists several implements of machinery which could only be used by the appellee in farming operations. The decree of divorce provides: “There are no property rights to be determined herein. ’ ’

From the record in this case it appears that the appellant was on good parental terms with his daughter and his son-in-law, Mr. and Mrs. McCanless, who acted as intermediaries. As stated, appellee’s version of the agreement was corroborated by them.

On appeal we do not disturb the findings of the Chancellor unless they are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. It is well settled that a court of equity has power to correct mistakes in a deed and conform it to the intentions of the parties based upon parol evidence of a clear, decisive and unequivocal nature. Beneaux v. Sparks, 144 Ark. 23, 221 S. W. 465; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Foster v. Richey, 192 Ark. 683, 93 S. W. 2d 1258; Gray v. Gray, 233 Ark. 310, 344 S. W. 2d 329; Crawford v. Vinyard, 234 Ark. 1003, 356 S. W. 2d 8. We think there was ample evidence of a clear, cogent and decisive nature to sustain the Chancellor’s decree.

The only other contention advanced by the appellant for reversal is that the court erred in refusing to sustain his plea of res judicata to appellee’s cross-complaint. It is true that a judgment upon a question directly involved in litigation is conclusive as to that issue in another suit by the same party or parties. It must appear, however, on the face of the record or by extrinsic evidence that the precise question was raised and determined in the former suit. Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579; Smith v. Smith, (Minn. 1952) 51 N. W. 2d 276; Orr v. Orr, 206 Ark. 844, 177 S. W. 2d 915; Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926; 32 A.L.R. 2d 1135.

In the case at bar the divorce decree specifically recites: “There are no property rights to be determined herein.” The appellant and the appellee are in agreement that there was a property settlement between them before the divorce. They disagree only as to the inclusion of the twenty-six acres. The daughter and son-in-law corroborated the appellee’s version of this agreement which was perfected before the granting of the divorce as is indicated by the very terms of the decree. It cannot be said that upon the face of the record or by extrinsic evidence the property rights between appellant and appellee were raised and determined in the divorce action. The property rights between them were withheld from the court’s consideration and were not adjudicated by the court.

We agree with the Chancellor in rejecting the appellant’s plea of res judicata.

Affirmed.


author: Boyd Tackett, Special Justice.

text:
    Starnes v. Sadler.
    5-3044
    372 S. W. 2d 585
    Opinion delivered December 2, 1963.

      Macorn S Moorhead, Garner, Shatu & Kimbrough, for appellant.

      Chambers & Chambers, Catlett & Henderson, for appellee.
   Boyd Tackett, Special Justice.

Appellants are citizens and taxpayers of the State of Arkansas. Appellee Loyd Sadler is a Member of the General Assembly of the State of Arkansas and, also, is a Member of the State Board of Pardons and Paroles. Appellee Van Mosley is a Member of the General Assembly of the State of Arkansas and, also, is a Member of the Board of Southern State College—a State supported institution. Appellants petitioned the Chancery Court of Pulaski County, Arkansas, under Article XVI, Section 13, of the Constitution' of the State of Arkansas, to enjoin each Appellee from holding one or the other state office, and for an accounting of any funds unlawfully received by virtue of holding dual state offices. Appellants and appellees moved for a Summary Judgment in the case, and the Chancellor entered a Decree granting Appellees’ Motion for Summary Judgment, ruling that the Chancery Court was without jurisdiction to hear and determine this cause—and, thus, this appeal.

By Separate Answer to the Complaint and Reply to Request for Admissions, Appellee Van Mosley alleged that he had received no pay for services or reimbursement of expenses incurred as a Member of the Board of Southern State College. Whether Appellee Loyd Sadler has received pay for services or reimbursement of expenses as a Member of the State Board of Pardons and Paroles is not revealed.

Article V, Section 10of the Constitution of the State of Arkansas, reads, “No Senator or Representative shall, during the term for which he shall have been elected, he appointed or elected to any civil office under this State. ’ ’ This Constitutional provision clearly precludes Appellee Loyd Sadler from serving as a Member of the State Board of Pardons and Paroles during the term for which he has been elected to serve as a Member of the General Assembly of the State of Arkansas, and clearly precludes Appellee Van Mosley from serving as a Member of the Board of Southern State College during the term he has been elected to serve as a Member of the General Assembly of the State of Arkansas; Wood v. Miller, 154 Ark. 318, 242 S. W. 573; Collins v. McClendon, 177 Ark. 44, 5 S. W. 2d 734; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 981; Smith v. Faubus, 230 Ark. 831, 327 S. W. 2d 562; Jones v. Duckett, 234 Ark. 990, 356 S. W. 2d 5.

Appellee Loyd Sadler, is an illegal Member of the State Board of Pardons .and Paroles, and Appellee Van Mosley is an illegal Member of the Board of Southern State College.. . ;

Article IV of the Constitution of the Státé 'of'Arkansas specifically provides that the powers of our state government shall be divided into three departments— legislative, executive, and judicial—and provides that no person,.or collection of persons within one of these departments, shall exercise any power in either of the'other departments.

The most controverted issue in this case is whether the Chancery Court had jurisdiction to determine this cause. This Court holds that the Chancery Court did have jurisdiction of this cause, and that the Chancellor erroneously ruled to the contrary.

Article XVI, Section 13, of the Constitution of Arkansas reads, “Any citizen of any county, city, or town, may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.” The Chancery Court has jurisdiction of suits to prevent illegal exactions; and, therefore, Chancery Court has jurisdiction of this suit for Declaratory Judgment—the equity court does not lose jurisdiction Toy the holder of a civil office electing to perform the duties of the office without pay for services or reimbursement of expenses incurred.

Ark. Stat. 7-202 charges Members of State Boards with the management and control of the respective institutions of the State of Arkansas, affording the Members the necessary power and authority to operate the Boards in a businesslike manner, and directs the Members to take over all records, files, books, papers, furniture, fixtures, and contracts of the institutions.

Ark. Stat. 7-206 directs' the Board Members to meet, organize, elect officers, and transact business on behalf of the institutions; and further provides that the Members of the Boards shall be entitled to the actual expenses which they incurred in attending meetings. Other legislative statutes detail the powers, duties, and responsibilities of Members of the State Board of Pardons and Paroles and Members of other Boards of the various State institutions.

The Members of the State Boards have access to, and supervision over, considerable property, assets and funds belonging to the people of the State of Arkansas, accumulated through taxation. For illegal Members of such State Boards to be entitled to expenses in attending to such state business, in receiving expenses, or in being afforded authority to operate State institutions, constitutes an illegal exaction; and, therefore, any citizen of any county, city or town may, by virtue of Article XVI, Section 13, of the Constitution of the State of Arkansas, institute suit on behalf of himself and all other interested persons to protect the inhabitants of Arkansas against the enforcement of the illegal exactions.

This Chancery Court action was instituted pursuant to Article XVI, Section 13, of the Constitution of the State of Arkansas, and the Chancery Court had jurisdiction of this Constitutional proceeding. This Constitutional provision is self-executing, and imposes no terms or conditions upon the right of the citizens there conferred. Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875; 8 Ark. Law Review 129 (1954).

‘ ‘ Illegal Exaction ’ ’ under the Arkansas Constitution means both direct and indirect illegal exactions, thus comprehending any attempted invalid spending or expenditure by any government official, Quinn v. Reed, 130 Ark. 116, 197 S. W. 15; Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529.

“Illegal Exaction means far more than the mere collection of unlawfully levied taxes. With little limitation, almost any misuse or mishandling of public funds may be challenged by a taxpayer action. Even paying too much for cleaning public outhouses has been held by our courts as basis for a taxpayer’s right to relief, Dreyfus v. Boone, 88 Ark. 353, 114 S. W. 718. Any arbitrary or unlawful action exacting taxes or tax revenues maybe restrained and annulled by a taxpayer affected by such procedure, Bush v. Echols, 178 Ark. 507, 10 S. W. 2d 906; McClellan v. Stuckey, 196 Ark. 816, 120 S. W. 2d 155; Park v. Hardin, 203 Ark. 1135, 160 S. W. 2d 501; Brookfield v. Harahan Viaduct Improvement District, 186 Ark. 599, 54 S. W. 2d 689.

The remotest effect upon the taxpayer concerning any unlawful act by a tax supported program or institution may be enjoined under Article XVI, Section 13, of the Constitution of the State of Arkansas, Green v. Jones, 164 Ark. 118, 261 S. W. 43. Equity jurisdiction has been expanded by the “illegal exaction” provision to afford taxpayers relief by Chancery Court injunction, concerning any arbitrary or unlawful action of a public operation, Ford v. Collison, 128 Ark. 119, 193 S. W. 531; Eddy v. Schuman, 206 Ark. 849, 177 S. W. 2d 918. Any action wherein tax moneys are involved, colored with illegality, entitles the taxpayer to injunctive relief in a court of equity under Article XVI, Section 13, of the Constitution of the State of Arkansas.

We are not dealing in this instance with statutory or common law proceedings—we are dealing with a Constitutional provision affording injunctive relief to a taxpayer concerning illegal exactions. We are not concerned with an election contest for the purpose of determining the rightful office holder, which action would necessarily need be brought in the law court. We are concerned with the Constitutional right of appellants to enjoin appellees from illegally holding civil office wherein illegal exactions are involved.

Our Court thoroughly'discussed “illegal exaction” in the case of Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S. W. 2d 672, wherein jurisdiction of the Chancery Court was questioned and illegal exaction was involved. This Court stated that the theory of an illegal exaction does not necessarily involve an illegal tax, citing the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, wherein the Court was not dealing with illegal tax, but with the question of illegal use or appropriation of county funds. This Court, in the case of Lee County v. Robertson, stated that the order of reappropriation was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county, and that each taxpayer was, therefore, individually interested in such order. In the case of Ark. County Judges v. Green, this Court noted that the Arkansas Supreme Court had many times construed Article XVI, Section 13, of the Arkansas Constitution, and had never limited its application to an illegal tax but had uniformly construed it to apply to an illegal exaction as defined in the Lee County v. Robertson case, further stating that the Constitutional provision had been and was being construed to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizens to maintain a suit to prevent such misapplication of funds.

The case of Arkansas County Judges Association v. Green cited the case of Ward v. Farrell, 221 Ark. 636, 253 S. W. 2d 353, wherein this Court stated concerning the involved Constitutional provision:

“There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.”

Appellees are illegally holding state civil office as Members of State Boards during the term for which they have been elected to the General Assembly of the State of Arkansas. They are empowered to manage, control and supervise a considerable amount of state property, assets, and funds while serving as illegal Members of the Boards. They are entitled to expenses of attending Board meetings. These activities constitute an illegal exaction affording injunctive relief by any citizens or taxpayers of the State of Arkansas.

Concerning the prayer of appellants for an accounting by appellees of any funds unlawfully received by virtue of holding dual offices, there is nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.

The Decree of the Pulaski County Chancery Court is reversed and this cause is remanded, with directions that the Chancellor enter a Summary Judgment enjoining appellee Loyd Sadler from Membership on the State Board of Pardons and Paroles, and enjoining Appellee Van Mosley from Membership on the Board of Southern State College.


author: Jerky Witt, Special Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Hood v. State.
    5-3054
    372 S. W. 2d 588
    Opinion delivered December 2, 1963.

      Holt, Park é Holt, for appellant.

      Bruce Bennett, Attorney General, by Richard B. Adkisson, Asst. Atty. General, for appellee.
   Jerky Witt, Special Associate Justice.

This is an appeal from that part of the judgment and order of the St. Francis County Circuit Court entered on the 8th day of February 1963, in the above entitled cause of action, which order declared of no force and effect, the Proclamation of the Governor of Arkansas, remitting, cancel-ling, and releasing a bond forfeiture, and for which forfeiture judgment was entered against Ted Hood in the St. Francis Circuit Court on the 24th day of February, 1958, in favor of the State of Arkansas in the sum of Two Thousand ($2,000.00) dollars and costs, and which judgment of forfeiture was affirmed by this Court on March 26, 1962.

The facts in this case are: Johnny Puckett was charged in the St. Francis Circuit Court with the crime of Forgery and Uttering. Appellant Ted Hood, d/b/a Ted Hood Bonding Company, made Puckett’s appearance bond. The ease was set for trial on February 24, 1958, but Puckett failed to appear. On February 28, 1958, the Court entered an order forfeiting the bond; appellant filed a motion to set aside the bond forfeiture, which was overruled; and summons was then issued for Hood to appear and show cause why judgment should not be rendered on the bond forfeiture. Appellant filed answer and asked for a jury trial, which was overruled; and judgment was rendered against him in the sum of Two Thousand ($2,000.00) dollars. There was an appeal to this Court; and on February 29, 1960, this Court reversed the Lower Court, and remanded the case for jury trial. (Hood v. State, 231 Ark. 772, 332 S. W. 2d 488.)

On remand, the case was tried to a jury on February 22, 1961, and a verdict was rendered against the appellant in favor of the State of Arkansas in the sum of Two Thousand ($2,000.00) dollars on the bond forfeiture. There was an appeal to this Court; and on March 26, 1962, this Court affirmed the judgment of the Lower Court. (Hood v. State, 234 Ark. 901, 356 S. W. 2d 28.) On August 4, 1962, the Governor issued a Proclamation remitting, extinguishing, cancelling, and releasing the forfeiture of the bond; and Hood pleaded that Proclamation as a release of the judgment against him. On February 8, 1963, the Circuit Court found that said Court had retained jurisdiction against appellant and the execution issued on the bond forfeiture and held that the Governor’s Proclamation of August 4, 1962, had no force and effect and did not relieve appellant from the judgment against him on the bond forfeiture rendered by the Circuit Court on the jury verdict of February 22, 1961; and from that judgment of February 8, 1963, there is the present appeal.

The Lower Court, in reaching its conclusion with reference to the Governor’s Proclamation, said this:

“After the jury returned that verdict, this Court entered the proper civil judgment, based upon that judgment ... It is the opinion of this Court, with reference to the Proclamation of the Governor which was issued August 4, 1962, that it is ineffectual because, although the Constitution provides that the Governor has the right to set aside forfeitures, it is the opinion of this court that this is not a forfeiture . . . the forfeiture was had even before the hearing before the jury and even after the matter was submitted to the jury and they rendered a verdict thereon . . . and the Court refuses to set aside the judgment against the Ted Hood Bonding Company.” The appellant, in his brief, assigns two points:

“ (1) The lower court erred in holding that the Governor’s Proclamation of August 4, 1962, remitting and cancelling the bond forfeiture in this cause, was of no force and effect.

“(2) Assessment of costs.”

At the outset we copy certain pertinent provisions of the Governor’s Proclamation here involved:

“Whereas, the Circuit Court of St. Francis County did, on February 28, 1958, order forfeited the bond made by Ted Hood . . . for the appearance of Johnny Puckett in a criminal action against him in the Circuit Court of St. Francis County; and . . .

“Whereas, execution has been issued for collection of said bond; and

“Whereas, extenuating circumstance in behalf of Ted Hood are: [mentioning four]; and . . .

“Whereas, it would be just and fair to remit, extinguish, cancel, and release the forfeiture of said bond hereinabove referred to:

“Now, Therefore, I, Orval E. Faubus, Governor of the State of Arkansas, by virtue of the power and authority vested in me under Article 6, Par. 18, of the Arkansas Constitution of 1874, do hereby remit, extinguish, cancel, and release the forfeiture of the aforesaid bond ...”

Article 6, Section 18, Constitution of 1874, provides:

“In all criminal and penal cases, except those of treason and impeachment, the Governor shall have power to grant reprieves, commutation of sentences and pardons after convictions, and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law.”

Attorneys for the State do not raise the question of the right of the Governor to act, because of the failure to comply with Ark. Stat. Ann. § 43-2818 (1947), where it is provided that the Governor is prohibited from considering or granting any application for pardon or “remission of forfeiture of bail bond” until there is filed in his office a certificate of the County Clerk or the affidavit of two persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.

The attorneys for the State insist that the judgment on the forfeited bail bond is a civil proceeding and not a criminal matter. The Lower Court held that this was not a forfeiture; that the forfeiture was had before the jury trial and its verdict; in other words, a trial by the jury on the bond changed the nature of the proceeding and, being a civil judgment, could not be affected by the Governor’s Proclamation. Attorneys for the State cite the case of Tinkle v. State, 230 Ark. 966, 328 S. W. 2d 111, and say that in the cited case the Court held:

“. . . that the Governor had authority under the Constitutional provision to remit forfeited bail bonds prior to judgment in the collection thereof. Although there was some dicta to the effect that the same would be true of remittitur after judgment, the court did not so hold.”

We agree that our Constitution limits the right of the Governor to grant reprieves and commutations in all criminal and penal cases except those of treason and impeachment, and that it does not extend to civil cases. We are now called upon in this case to decide the nature of the proceeding in the Lower Court; whether the judgment on the forfeited bond, after trial by jury, is a civil or criminal proceeding. We hold that it was a criminal proceeding and the Governor’s Proclamation had the effect of relieving the appellant from payment of said judgment. The case of Tinkle v. State (supra) was very similar, if not on all fours, with the case at bar, and we quote from it at length:

“The issue here is whether the Governor has authority to remit a forfeited bail bond. Thomas Gordan Tinkle, Jr. was charged in the criminal division of the Chickasawba District of the Mississippi County Circuit Court with the crime of burglary and grand larceny. When the case was called for trial, Tinkle failed to appear, and the court ordered that the bail bond be forfeited. Later, the Governor issued a proclamation purporting to remit such bond forfeiture. Appellants filed motion in circuit court to set aside the judgment in the sum of $5,000.00 rendered on the bond forfeiture, alleging that the forfeiture had been remitted by the Governor’s Proclamation which was made a part of the motion. The trial court overruled the motion to set aside the judgment, and the principal, Tinkle, and bonding company, Carolina Casualty Company, have appealed.

“The State contends, first, that the Governor does not have the authority to remit a forfeited bail bond; second, that if the Governor does have such authority, procedure required by the statute was not followed and, therefore, the proclamation is invalid . . .

“Attorneys for the State argue that the procedure to force collection on the forfeited bail bond is a civil action and that, therefore, the whole proceeding arises out of a civil penalty or forfeiture, and that the Governor, therefore, can give no relief. Hutton v. McCleskey, 132 Ark. 391, 200 S. W. 1032, is cited as authority for that conclusion. But in that case the only issue was whether the Governor under the constitution could remit a penalty imposed on all who failed to assess their property for taxes in the manner prescribed by statute. It was certainly not a ‘criminal or penal case’ . . . The forfeiture in the case at bar was in a criminal case. The bond was given to insure the defendant Tinkle’s appearance under a criminal indictment. A majority of the states have a constitutional provision in which the power (to remit fines and forfeitures) is granted either to the Governor alone or in conjunction with other executives comprising a board. In none of these states have the courts ever held that the forfeiture mentioned in the Constitutional provision does not apply to a forfeited bail bond . . .

“The case of State v. Dyches, 28 Tex. 535, is directly in point. There the Texas Court held outright that under a constitutional provision similar to ours the Governor had the power to remit a forfeited bail bond. See also: Williams v. Shelbourne, 102 Ky. 579, 44 S. W. 110; • • •

“In Harbin v. State, 78 Iowa 268, 43 N. W. 210, the defendant Harbin failed to appear and an action on the bail bond was instituted and judgment rendered thereon. Almost a year after judgment, the Governor issued a proclamation remitting $600.00 of the $795.00 forfeiture, providing the balance plus costs, was paid . . . The judgment was not satisfied of record and execution was issued. A proceeding was instituted to stay the collection of the judgment. The court said: ‘Had the Governor authority, after the bond was prosecuted to judgment, to remit any part thereof? The power of the Governor to make such remission after the entry of the breach of the conditions of the bond by the justice, and before judgment, is not questioned in this case; the point in argument being that, after judgment there is no forfeiture within the meaning of the law, but a judgment over which the Governor has no control or right of remission. The question involves a construction of Section 16, Article 4, of the Constitution, the essential part of which is that the Governor “shall have the power to remit fines and forfeiture under such regulations as may be prescribed by law” [same as ours] . . . The case deals with the question of the claim being so changed that it is no longer a forfeiture within the meaning of the law as to the authority of the Governor to remit.’ After discussing the argument of whether the Governor had authority to remit after judgment, and deciding in the affirmative, the court further said: ‘The principle is of so much importance as to have a foundation in Constitutional enactment. It hardly needs argument or citation of facts to show that reasons might exist for this beneficent act on the part of the Governor, as well after judgment on a forfeiture as before . . . and we think it the spirit of the law that this large discretion with which the Governor is invested extends to the time of payment of the forfeiture, whether after judgment or before. ’ ’ ’

The case of Harbin v. State, 78 Iowa 268, was cited by this court in Tinkle v. State as authority for holding that the Governor had authority to remit the forfeiture whether after judgment or before. In said case, the point in argument was, that after judgment there is no forfeiture, but a judgment, “civil” (italics ours) over which the Governor has no control or right of remission. In 77 A.L.R. 2d, p. 989, there is this language:

‘ ‘ The judicial procedure for effecting the forfeiture of a bail bond, as reflected in a number of the cases herein, frequently includes two distinct steps. Under this method an order of forfeiture is entered soon after the time at which the principal was in default for appearance. This is generally regarded as in the nature of an interlocutory decree, and an absolute judgment is then entered only after notice to the surety and an opportunity to show cause why final judgment should not be entered. Consideration is frequently given in the cases to whether, when the Governor purports to exercise the power of remission, the prior entry of a final judgment should determine the existence, or at least the scope, of such a power . . . the courts have generally held that a constitutional or statutory grant of power to the Governor to remit ‘fines and forfeitures’ includes that of remission of a final judgment of forfeiture entered upon a bail bond.”

In the case at bar, the origin was in a criminal proceeding: Pucket was charged with a crime (Forgery and Uttering), he made bond; when the case was called for trial lie failed to appear and a forfeiture was taken on Ms bond; and later a trial by jury was had on the bond forfeiture and verdict rendered against Ted Hood, the bondsman. The trial by a jury on the bond did not change the character of the proceeding from a criminal to a civil case: it had its origin in a criminal proceeding, and it made no difference whether the judgment was rendered after a trial by a jury or from an interlocutory order by the court. Being a criminal proceeding, the Governor had the authority, under the Constitution, to issue his proclamation remitting, extinguishing, cancelling, and releasing the forfeiture of the bond and the judgment rendered thereon by the Lower Court, and said Proclamation also had the same effect as to the costs in the case.

The judgment of the Lower Court is reversed and said forfeiture is set aside.

Justice Holt not participating.

Justice McFaddin dissenting.

Ed. F. McFaddin, Associate Justice

(dissenting). The Majority Opinion in the present case follows the Majority Opinion in Tinkle v. State, 230 Ark. 966, 328 S. W. 2d 111. In fact, the Tinkle casé would probably have to be overruled in order to reach any other conclusion except that reached by the Majority in the present case.

But I dissented in the case of Tinkle v. State, and I dissent in the present case: because I am thoroughly convinced that my dissent in Tinkle v. State was and is correct, and I persevere in that view by dissenting in the present case in the hope that at some time Tinkle v. State will be overruled.