text:
    Thomas MAGNESS v. Cleddie SHOCK, Chief of Police, PINE BLUFF POLICE DEPARTMENT and CITY Of PINE BLUFF
    77-73
    554 S.W. 2d 342
    Opinion delivered July 18, 1977
    (Division II)
    [Rehearing denied September 12, 1977.]

      Winfred A. Trafford of Holmes, Holmes & Trafford, for appellant.

      Robert Tolson, Jr., City Atty., for appellees.
   John A. Fogleman, Justice.

Lt. Thomas Magness was discharged by Chief of Police Cleddie Shock. Magness was given a letter of dismissal notifying him that he was discharged “for violation of the following rules and regulations”:

16-3 Failure to conform to and abide by Rules and Regulations
16-42 (3) Conduct unbecoming an officer or employee of the Police Department.
16-42 (5) Neglect of Duty.
16-42 (30) Absence from duty without official leave.

Magness gave notice of appeal to the Civil Service Commission, which upheld the dismissal. The pertinent finding of the commission, after hearing testimony, was:

The finding of this Commission on the evidence presented to it is as follows: Number One, that Lieutenant Magness did violate the following rules and regulations, 16-3, 16-42 subparagraph (3), 16-43 sub-paragraph (5), 16-43 subparagraph (30). This Commission further finds that these violations are sufficient to sustain the Police Chief’s action of dismissal from the Pine Bluff Police Department.

On appeal, the circuit court, in its findings stated:

The Commission found that Lt. Magness violated certain enumerated rules and regulations and that these violations were sufficient to sustain his dismissal by the Chief of Police. The decision of the Commission does not include findings of fact, conclusions of law or statements of underlying facts, supporting the ruling of the Commission. Without these, this court must guess or speculate as to what facts the Commission found to base its decision. Because of this, it is possible that the Commission’s decision will be based on one set of facts and the court’s on a completely different set of facts. If this court had the authority to do so it would remand this cause for the sole purpose of requiring the Commission to prepare findings of fact and conclusions of law for this court to review.

The applicable statute, Ark. Stat. Ann. § 19-1605.1 (Repl. 1968), provides that a civil service employee may not be discharged without being notified in writing of his discharge and the cause therefor. See also, Ark. Stat. Ann. § 19-1603 (Repl. 1968 and Supp. 1975). The statement of cause may or may not be sufficient, depending on the wording and content of the rules enumerated therein. It should be noted that the commission’s findings are based on sections of the rules having different numbers from those listed on the notice of discharge.

We have no idea of the content of the rules referred to, either in the notice of discharge or the commission’s findings. They are not in the record. Without knowing their content, we are in no position to say whether the notice given Magness is sufficiently definite or whether there was substantial evidence to support the circuit court’s findings.

We do not take judicial notice of city ordinances. Walthour v. Alexander, 243 Ark. 621, 421 S.W. 2d 613. For the same reason, we cannot take judicial notice of the rules and regulations of a city board or commission. The Civil Service Commissioners were required to adopt rules and regulations governing the police department. § 19-1603. They must have done so, but we do not know what they are.

When an appeal is taken from a commission ruling, the statute requires the Civil Service Commission to send all pertinent documents and papers to the circuit court, along with the transcript of all evidence and testimony adduced before the commission and the commission’s findings and orders. In this case we are in a situation somewhat similar to that presented to the court in Strickland v. Little Rock, 68 Ark. 483, 60 S.W. 26, where an appeal was taken from a conviction of an accused of interfering with a sanitary policeman of the City of Little Rock. In reversing the conviction, we said:

The powers and duties of the sanitary policeman were not shown in the evidence. No ordinances of the city defining such powers and duties were read. If such ordinances were in existence, the circuit court or this court cannot take judicial notice of them. It follows, then, that the evidence fails to show that the appellant interfered with the policeman in the discharge of his duties.

We recently had occasion to point out the necessity for an order of removal to specify the particular charge upon which the removal is based before there can be a meaningful judicial review. Fulmer v. Holcomb, Mayor, 261 Ark. 580, 550 S.W. 2d 442. Without the rules and regulations of the commission we cannot say that the evidence sustains the charges specified or that the charges were sufficiently specific.

Since we cannot make a finding of either substantial evidence of cause for removal or of adequate notice, the judgment must be reversed and the cause remanded.

We agree. Byrd, Roy and Hickman, JJ.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Lannie JACKSON and Ronnie ATKINS
    77-97
    555 S.W. 2d 4
    Opinion delivered July 18, 1977
    (In Banc)

      Laser, Sharp, Flaky, Young & Boswell, for appellant.

      Matthews & Sanders, for appellees.
   Conley Byrd, Justice.

Appellees Lannie Jackson and Ronnie Atkins, being the victims of a rear-end collision, obtained a consent judgment against Lawrencetta Phillips, the alleged driver of the other car, and then brought this action pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966), against United States Fidelity and Guaranty Company (USF&G) and appellant Southern Farm bureau Casualty Insurance Company (hereinafter referred to as Southern Farm). USF&G defended on the ground that its insured, in whom the car was titled, had fraudulently represented that he would be the principal driver of the automobile. Southern Farm at first defended on the theory that USF&G was the primary carrier and its policy was excess insurance over and above the limits of USF&G’s policy. Subsequently, when getting ready for trial and after Lawrencetta had changed her story as to who was the driver at the time of the collision, Southern Farm amended its answer to plead that its policy did not apply due to the fact that Lawrencetta had violated the cooperation clause. Appellees then took a voluntary non-suit as to USF&G. The trial court in awarding judgment against Southern Farm for the amount of the judgments and for penalty and attorney’s fee made the following findings, to-wit:

“(1) That the Defendant [Southern Farm] failed to prove by a preponderance of the evidence that Lawrencetta Phillips was not the driver of the Webb vehicle.
(2) That the Defendant [Southern Farm] is estopped to deny the validity of the policy in a situation such as this in which the policy defense depends on a factual issue previously adjudicated in a suit in which the insurer actually participated.”

For reversal of the judgment Southern Farm contends that “the evidence establishes as a matter of law that Lawrencetta Phillips violated the cooperation clause of appellant’s policy and that appellant is not precluded from raising this defense by the consent judgment entered in the prior tort action.”

The record shows that a vehicle titled in the name of Ira L. Jackson rear-ended appellees’ vehicle. A number of people were in the “Jackson or Webb” vehicle at the time of the rear-end collision. Lawrencetta Phillips furnished her driver’s license to the investigating officers as being the driver of the vehicle and, in addition, her father paid a traffic fine for her as the driver of the vehicle. Lawrencetta shortly after the rear-end collision gave Southern Farm a statement in which she stated she was driving the vehicle. After USF&G denied any liability for the rear-end collision and refused to provide a defense, Southern Farm furnished Lawrencetta a defense in the tort action through Attorney Sam Laser. Based upon the statement of Lawrencetta, Sam Laser as counsel for Lawrencetta approved the consent judgment in favor of appellees. After this action was instituted by appellees against USF&G and Southern Farm and at a time when Southern Farm’s counsel was getting ready for trial, Lawrencetta for the first time took the position that she was not driving the “Jackson or Webb” vehicle at the time of the rear-end collision. She testified at trial that Kevin Criswell, who did not have a driver’s license and who was just recently paroled from the Boy’s Industrial School, was the actual driver of the car and that she scooted over under the steering wheel and furnished her driver’s license to the investigating officers to protect Kevin Criswell.

Appellees furnished other and substantial evidence that Lawrencetta Phillips was the actual driver of the “Jackson or Webb” vehicle at the time of the collision as if that were the only issue. However, as to Southern Farm’s defense here, it is patently obvious that both statements cannot be true. If the first statement were true, then by Lawrencetta’s second statement there was certainly a failure to cooperate with Southern Farm within the meaning of the policy which would materially affect Southern Farm’s defense that USF&G was the primary carrier. Of course if the second statement made under oath is the true state of the facts, then Southern Farm was materially prejudiced by the first statement upon which it acted. Consequently, under either view Lawrencetta would not be entitled to enforce the policy liability provisions against Southern Farm in an action on her behalf. The fact that Lawrencetta could not recover on the liability policy in question is recognized by the appellees who contend as follows:

“. . . This Court cannot let the Appellant go back at this late time and reiitigate the issue of who was driving the Webb vehicle; and since the alleged act of noncooperation depends upon a resolution of this factual issue, the Appellant is prevented from asserting the noncooperation clause as a defense to this suit. Appellant’s remedy in this situation, is to recover its loss from its own insured for fraudulent misrepresentation. Appellees cannot be penalized for the mistakes of others at a stage this late in the proceedings.” [Emphasis ours]

The law with respect to the rights of the insurer to plead a breach of a policy condition after the collision is set forth in 7 Am. Jur. 2d Automobile Insurance § 225 as follows:

“With regard to a policy of automobile liability insurance voluntarily obtained, the general rule followed by most of the courts is that the breach of contractual provisions relating to acts or omissions subsequent to the accident is, in the absence of collusion between insurer and insured, available to the insurer as against the injured person, if, in the circumstances, it would have been available against the insured. In other words, the injured person stands in the shoes of the insured regarding defenses of this character, except in unusual cases where the effect of the insured’s failure to comply with the conditions of recovery may be avoided by compliance by the injured person himself. A number of cases, therefore, support the principle, broadly stated, that if the insured has not complied with a clause in the policy requiring his co-operation, the injured person cannot recover over against the insurer in the absence of an express statutory or policy provision to the contrary in such case. However, the injured person, in an action over against the insurer, is generally held entitled to the benefit of a waiver of the right, or an estoppel on the part of the insurer, to set up as against the insured the latter’s breach of a co-operation clause; in other words, that which operates as a waiver or estoppel in favor of the insured also operates as a waiver or estoppel in favor of the injured person.”

Our construction of the subrogation rights of a judgment creditor pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966), is in accord with the majority view — i.e. the injured person stands in the shoes of the insured regarding the defense of failing to cooperate, Maryland Casualty Company v. Waggoner, 193 Ark. 550, 101 S.W. 2d 451 (1937).

To sustain the action of the trial court, appellees contend that the doctrine of res judicata and collateral estoppel would still apply to Southern Farm. This contention is made upon the assertion that the judgment against Lawrencetta was not only binding against parties but their privies. Appellees are correct that ordinarily an insurer is considered as being a privy to a judgment against its insured in which it furnished a defense and estopped to make an assertion contrary to a finding in the action against the insured. Appellees, however, have failed to observe that the general rule is qualified by the proposition that the general rule only applies in the absence of fraud or collusion. Even under an assigned risk plan an insurer by furnishing a defense to the insured is not estopped to assert fraud or collusion of the insured in an action on the policy, Strickland v. Hughes, 273 N.C. 481, 160 S.W. 2d 313 (1968). See also 7 Am. Jur. 2d, Automobile Insurance § 227.

Having shown that appellees’ rights are no greater than Lawrencetta’s, that Lawrencetta’s conduct prevents Southern Farm from being estopped by the doctrine of collateral estoppel, and that Lawrencetta could not enforce this liability policy against the defense of failure to cooperate, it follows that the trial court should have entered a verdict in favor of Southern Farm.

As pointed out in Brogdon v. American Automobile Ins. Co., 290 Mich. 130, 287 N.W. 406 (1939), this court recognizes that the facts in the case at bar are hard ones and that liability insurance is to protect third parties. However, an insured who knowingly and willfully misrepresents the driver of the insured vehicle at the time of the collision unquestionably and materially affects the insurer’s ability to investigate and settle accident claims. Without that ability the liability insurance industry would soon be forced to cease business or charge a premium comparable to those in the assigned risk pool.

For the reasons stated, the judgment against Southern Farm is reversed and the cause dismissed.

Reversed and dismissed.

Harris, C.J., dissents.


author: Frank Holt, Justice.

text:
    Thelma WHITE, Administratrix of the Estate of Carl Thomas WHITE, deceased v. CLARK EQUIPMENT COMPANY et al
    77-56
    553 S.W. 2d 280
    Opinion delivered July 18, 1977
    (Division I)

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      Plegge, Lowe & Whitmore; Wright, Lindsey & Jennings, and Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellees.
   Frank Holt, Justice.

This is a wrongful death action. Carl Thomas White was fatally injured when a Kroger Company trailer moved away from a warehouse dock while he was backing a forklift out of the trailer. The forklift fell backwards crushing White. Appellant Thelma White, wife of the deceased, brought suit against appellees, the forklift manufacturer, its distributor and the frailer manufacturer. The trial court directed a verdict for the manufacturer of the forklift and its distributor. The jury returned a verdict in favor of the trailer manufacturer.

Appellant first argues that certain testimony should not have been excluded. The trailer involved in the accident was manufactured in 1964 by appellee Clark Equipment Company and was equipped with standard air brakes. It appears that about 90% of all trailers were similarly equipped then. Appellant’s expert witness testified that spring actuated brakes were available in 1964. However, the court excluded his testimony that after 1975 the United States Department of Transportation required by regulation that all trailers made in the United States have spring actuated brakes. Here, we cannot say that the trial court abused his discretion in excluding this testimony of appellant’s expert witness. Evidence of this regulation, effective some eleven years after the trailer was made and almost two years after White’s death, has no relevance to the question of whether Clark Equipment Company used ordinary care in the design and manufacture of its product in 1964. Further, and significantly, the trailer was ordered by Kroger with the specification that it be equipped with standard air brakes.

Appellant also argues that evidence of the 1975 regulation should be admitted to test the credibility of appellee Clark’s expert witness. The substance of the testimony of appellees’ witness was that, in his opinion, spring actuated brakes are more dangerous than non-spring brakes in the process of disassembly. The existence of the 1975 regulation bears little significance to this assertion by the witness. The issue was whether the manufacturer was negligent in 1964 in manufacturing the trailer which was per Kroger’s specifications. We think that the probative value of the excluded testimony on this collateral matter is substantially outweighed by the danger of unfair prejudice. See Rule 403, Arkansas Uniform Rules of Evidence. We cannot say that the trial court abused his discretion in excluding this testimony.

Appellant’s final point is that the court erred in directing verdicts for the appellee Baker Division of Otis Elevator Company, manufacturer of the forklift, and appellee BigelowRobinson, Inc., the local distributor. On appeal from a directed verdict, we must view the evidence in the light most favorable to appellant in determining if a fact question exists for the jury’s determination. Grambling v. Baltz, 253 Ark. 352, 485 S.W. 2d 183 (1972). Here the only evidence which could point to liability for the accident on the part of Baker, the forklift manufacturer, or Bigelow-Robinson, the local distributor, is testimony that the forklift involved was not equipped with an overhead protection guard which was not in compliance with the American National Standards Institute’s standards for forklifts. However, Kroger ordered the forklift direct from the manufacturer and specified that it be equipped without an overhead guard. A forklift used on the loading docks, as here, had to enter trailers with low ceilings. Forklifts used inside the warehouse necessitated the existence of overhead guards as a protection against falling objects stacked above head level. Here there simply is no factual basis for the jury to find liability on the part of either Baker Division or Bigelow-Robinson. The trial court was, therefore, correct in directing verdicts for them.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Rov.JJ.


author: Darrell Hickman, Justice. Conley Byrd, Justice,

text:
    Thurl S. HARBER, Employer, UNITED STATES FIDELITY & GUARANTY COMPANY, Insurance Carrier v. Syble Gene SHOWS et al
    76-392
    553 S.W. 2d 282
    Opinion delivered July 18, 1977
    (In Banc)

      Barber, McCaskill, Amsler & Jones, for appellants.

      Brockman, Brockman & Gunti, for appellees.
   Darrell Hickman, Justice.

This is an appeal of a Workmen’s Compensation case that resulted in an award of compensation to the dependents of Marby Shows, Jr., deceased, and a 15% penalty for violation of a safety regulation. The Circuit Court of Pulaski County affirmed all the findings and orders of the Commission.

The appellant-employer, Thurl S. Harber, and his insurance company, United States Fidelity & Guaranty Company, appealed the decision alleging three errors: the claim of the dependents was not controverted and, therefore, attorney fees were erroneously awarded appellees; a penalty was awarded in error because Shows’ death was the result of his own negligence; and, the regulations allegedly violated were federal regulations, not official state regulations as defined in Ark. Stats. Ann. § 81-1310 (d) (Supp. 1975).

We agree with the appellants that the claim was not controverted. The appellants’ insurance carrier, upon notification of the claim, immediately notified the Commission that the claim was accepted for compensation and a hearing was requested only to determine the dependency of the children. Shows had been married twice and had two children by each marriage. He also had a stepchild. It was ultimately determined that all four children and the stepchild were dependents. Each child received an equal share of the benefits (three children received two cents less per week).

There was obviously a conflict of interest in the claim of the children and the carrier was merely asking for a fair distribution of the money which was admittedly owed. A fair apportionment of the benefit money Was made and the decision was fair in this regard. The referee and the Commission found that the claim was controverted in part and, therefore, awarded the appellees some attorney fees. The lower court affirmed the finding. We find no evidence to justify such a finding. The carrier acted in good faith, did not controvert the claim, but merely asked for an apportionment and a hearing on dependency. Therefore, this decision will be reversed.

Shows, a painter, fell from a scaffold while painting the Arkansas Interstate 430 Bridge and drowned. The referee and the Commission found that Shows would not have met his death if he had been wearing a life jacket; that if ring buoys had been readily available he could have, in all probability, been saved; and, that if guardrails and toe boards had been installed on the scaffold from which he fell, in all probability he would not have died. We agree with these findings. The appellants argued to the Commission and on appeal that Shows’ negligence caused his own death. The Commission did not specifically rule on this argument. We feel the finding that the cause of Shows’ death was safety violations necessarily rejects this argument.

However, the referee and the Commission went further and concluded that the employer’s.failure to comply with the Occupational Safety and Health Act of 1970, an “official regulation,” was a substantial cause of Shows’ death, and, therefore, awarded a 15% penalty. See 29 U.S.C.A. § 651 et. seq. Arkansas law provides that when an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation, the benefits may be increased 15%. See Ark. Stats. Ann. §81-1310(d) supra. The referee and the Commission found that reference in the Arkansas statute to “official regulations” includes the OSHA law enacted by the United States Congress. We disagree with this finding. The Arkansas statute refers to “any Arkansas statute or official regulation.” Apparently, it was the intention of the legislature, by preceding statute with “Arkansas,” to also mean only official regulations of Arkansas. Furthermore, since the statute is penal in nature, we apply the construction rule that is strictly in favor of those upon whom a penalty may be imposed. Nothing will be taken as intended that is not clearly expressed. See Fiser v. Clayton, 221 Ark. 528, 254 S.W. 2d 315 (1953). An intention to include federal regulations is not clearly expressed in the Arkansas statute. Also, the finding by the Commission that results in applying federal regulations that may be enacted in the future could well be an unlawful delegation of legislative authority. See Crowly v. Thornbrough, Comm’r of Labor, 226 Ark. 768, 294 S.W. 2d 62 (1956). (OSHA was passed after the Arkansas statute.) Therefore, we find the basis of the penalty award in error, and this decision will be reversed.

The attorney for the appellees also tried to proceed before the referee on the theory that the employer had failed to provide a safe place to work in violation of Ark. Stats. Ann. § 81-108 (Repl. 1960). After the hearing before the referee, the appellees tried to offer into evidence regulations of the Arkansas Labor Department which would have been relevant to this case. Neither the referee nor the Commission ruled on whether or not the appellees could proceed under Arkansas law, but instead based their decisions on violations of the federal regulations. This case will be remanded for a rehearing to determine whether or not the appellees may be entitled to compensation for violation of Arkansas regulations or law.

This case is remanded to the circuit court with directions to further remand the case to the Commission for proceedings not inconsistent with this opinion.

Reversed and remanded.

Focjleman and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. I dissent only to that portion of the majority opinion directing the Commission to hold a rehearing to determine whether or not appellees may be entitled to a penalty for violation of the Arkansas Safety regulations. There was a procedural question before the Commission of whether the claimants had given a proper notice of the alleged violation of the Arkansas Safety regulations. In the absence of such a notice, it should be within the discretion of the Commission to permit the pleadings to be amended.

Furthermore, I dissent because the majority under its views in remanding to the Commission should reach appellants’ contention that “a penalty may not be awarded where the injury to the employee is the result of the employee’s negligent intervening act or willful misconduct.” The majority sloughs this contention off with the following statements, to wit:

“. . . The appellants argued to the commission and on appeal that Shows’ negligence caused his own death. The Commission did not specifically rule on this argument. We feel the finding that the cause of Shows’ death was safety violations necessarily rejects’this argument. >5

The record here reveals that Shows was the job superintendent at the time of his death. Every witness called with knowledge of the working conditions on the job testified that the employer regularly held safety meetings and that when the employer was present, the equipment was used but that as soon as the employer left the job the employees regularly removed the safety equipment. The record is uncontradicted that Shows, without consultation with the employer, drove to Russellville on the day of his death to get the .scaffold from which he fell. The record is also undisputed that life lines and life jackets were on the job and could have been used by Shows had he so desired. Jerry Hooten testified that he had previously painted from the same scaffold and that while so doing, he used a life line.

In L. G. Arnold Inc. v. Industrial Commission, 2 Wis. 2d 186 85 N.W. 2d 821 (1957), the issue was whether a 15% additional penalty could be awarded to an employee in charge of blasting operations that spurned the safety devices furnished by the employer. In holding that the employee could not recover the additional penalty, the court said:

“It is well established that an employer may not be subjected to a penalty where the injury is the result of negligent or inadvertent acts of its employees. Sage Operating Corp. v. Industrial Comm., 197 Wis. 552, 222 N.W. 2d 781 (1929).”

Here the employer admits that it is liable for Workmen’s Compensation benefits but contests its liability for the additional 15% penalty assessable for violation of a safety regulation. To say that it is proper to award the 15% penalty against an employer when the employee’s drowning results from the spurning of such ordinary safety devices as life jackets and life lines goes beyond the clearly expressed intent of the Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1310(d) (Supp. 1975), which provides:

Where an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees compensation or death benefits provided for by this Act shall be increased by fifteen per centum (15%).” [Emphasis Mine.]

The foregoing section of the Workmen’s Compensation Act has now been amended to read:

Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided by this Act shall be increased by fifteen percent (15%).” [Emphasis Mine.]

It has long been the rule in this State that penal statutes must be strictly construed in favor of those upon whom the burden is sought to be imposed and nothing will be taken as intended that is not clearly expressed, Fiser v. Clayton, 221 Ark. 528, 254 S.W. 2d 315 (1953).

It should be a very simple matter for the majority to either rule on the matter head-on or to at least advise the parties that the issue is a fact question in the event of another hearing before the Commission.

For the reasons stated, l respectfully dissent.

Fooleman, J. joins in this dissent.


author: Maurice Mitchell, Special Justice. John A. Fogleman, Justice, Carleton Harris, Chief Justice, George Rose Smith, Justice,

text:
    KEMP-BRADFORD VFW POST 4764 et al v. David WOOD et al
    77-88
    554 S.W. 2d 344
    Opinion delivered July 18, 1977
    (In Banc)
    [Rehearing denied September 19, 1977.]

      Rose, Mask, Williamson, Carroll, Clay & Giroir, P.A., and John W. Bailey, for appellants.

      Thomas A. Martin Jr., for appellees.

      Pollard & Cavaneau, Jake Brick, and R. E. “Skip” Wallin, for amicus curiae, Searcy Country Club, Inc.
   Maurice Mitchell, Special Justice.

David Wood and others filed a petition in the Circuit Court of Pulaski County against Karen Jones, Administrator of the Alcoholic Beverage Control Division of the State of Arkansas, and members of the Alcoholic Beverage Control Board, praying that mandamus be issued against the respondents ordering them to withdraw and void all licenses and permits of any sort issued to private clubs pursuant to Act 132 of 1969. Among other things, Act 132 authorized the Alcoholic Beverage Control Board to issue permits to private clubs as defined in the Act.

The respondents moved to dismiss the petition. Appellants, Kemp-Bradford VFW Post 4764, and other private clubs licensed under Act 132 of 1969 were granted leave to intervene. The Intervenors also moved to dismiss the petition.

The facts involved in this case are contained in a brief stipulation between the parties:

The Alcoholic Beverage Control Board and its officers were the proper officers to issue permits under Section 10 of Act 132 of 1969; they have issued and are issuing permits pursuant to that Section to private clubs in both “wet” and “dry” counties. Act 1 of 1942 was an Initiated Act. Act 132 of 1969 received 19 votes in the Senate and 74 votes in the House.

The parties also stipulated that the sole substantive legal issue raised in this case was the validity of permits issued to private clubs in counties which are “dry” under Initiated Act 1 of 1942.

Amendment 7, Section 8 of the Arkansas Constitution requires a two-thirds vote of members of each House of the Legislature to amend an initiated measure. It was stipulated that Act 132 of 1969 did not receive the required legislative vote to amend an initiated measure. The learned judge of the lower court opined that Act 132 of 1969 violates our Constitution in that it would amend Initiated Act 1 of 1942 by granting authority to issue permits for the dispensing of alcoholic beverages to private clubs in “dry” territories. No authority for the issuance of such permits exists under the initiated measure.

The circuit court issued a writ of mandamus ordering the Alcoholic Beverage Control Board and the Administrator of the Alcoholic Beverage Control Division to immediately rescind and void all permits previously issued by them for the dispensing of alcoholic beverages in “dry” subdivisions. As stated in the writ of mandamus, it was based on the premise that “mandamus is the proper remedy for the subject matter of this suit and is the only adequate remedy available to the petitioners.” This premise was reiterated by the lower court in its amended opinion when it stated that “ [T]he allegations of the petition in this case support relief against the performance of allegedly illegal acts and mandamus is the proper procedure.”

In our opinion, mandamus was not the proper procedure on two grounds. Other adequate remedies were available to the appellees; and the appellees are attempting to enforce an alleged duty which is not a plain ministerial duty for whieh a writ of mandamus may issue.

In considering the issuance of any writ of mandamus, a court should bear in mind the extraordinary nature of this remedy. Mandamus “is a summary, expeditious, and drastic writ, of an extraordinary character, sometimes referred to as the highest judicial writ known to the law, and the law has properly erected many safeguards around it to prevent its issuance in cases where irreparable injury and injustice might result.” 52 Am. Jur. 2d, Mandamus, § 4.

In regard to our first ground for denial of mandamus, it is well settled that mandamus is not allowable where there is any other adequate remedy. In Rolfe v. Spybuck Drainage Dist. Mo. 1, 101 Ark. 29, 31, 140 S.W. 988, 989 (1911), this Court stated: “As a general rule, the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy.”

Appellants argue forcefully that other, less drastic, procedures are available to obtain any remedy to which the appellees may be entitled. We agree. While several other appropriate procedures are available for the appellees to pursue, one of the most obvious is a proceeding for a declaratory judgment. Ark. Stat. Ann. § 34-2502 (Repl. 1962) states: “Any person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal relations thereunder.” The central question which the appellees attempt to raise in this case is whether Act 132 of 1969 is valid under the Arkansas Constitution. An action for a declaratory judgment would provide the answer to this question, as evidenced by the plain language of the statute creating that procedure.

The wisdom of the rule that mandamus will not lie when any other remedy is available becomes clear when other remedies available to the appellees in the case at bar are considered. Under other procedures available for questioning the constitutionality of Act 132 of 1969, different pleadings, evidence, parties and arguments would have been possible and, in our opinion, highly probable. We believe these differences would make for a closer and fairer examination of the questioned Act and the duties, rights and privileges of the public officials and other persons which it affects.

The denial of mandamus on the ground that the appellees are attempting to enforce an alleged duty which is not a plain ministerial duty presents a closer question. While it may be argued, and some courts have ruled under particular circumstances, that a question as to the constitutionality of a statute may be raised in a mandamus proceeding, we do not believe that this argument should prevail under the circumstances existing in the case at bar. For almost eight years, the appellant Board, an agency of the executive branch of the State of Arkansas, has been issuing permits to private clubs under Act 132 of 1969. Because this Act is presumed to be constitutional until it is overturned by proper judicial authority, the appellant Board had the legal authority and duty to issue permits when statutory and regulatory requirements were met by an applicant, and the holders of these permits had the legal right to exercise the privileges properly granted to them pursuant to the Act.

Under the circumstances in the case at bar, the sounder argument as to whether the constitutionality of a statute may be questioned in a mandamus proceeding is stated in 52 Am. Jur. 2d, Mandamus, § 95:

The view has been talcen in some cases that since mandamus lies only to enforce a plain ministerial duty, and that since a plain ministerial duty cannot exist which is made to appear only by declaring a statute unconstitutional, the writ will not issue if it is necessary in order to fix upon the respondent the duty sought to be enforced to declare a statute in conflict with such alleged duty unconstitutional. A further reason given is that ministerial officers should not be required, under the penalty of being subjected to a mandate, to pass upon the constitutionality of a statute apparently governing their actions.

This argument is bolstered by language contained in Annot. 129 A.L.R. 941 (1940), which states:

Some courts have emphasized the doctrine that a statute is presumed to be constitutional until the contrary is plainly made to appear. And as the courts are the properly constituted tribunals to decide the question, and as they exercise great caution before declaring an enactment unconstitutional, they have unqualifiedly applied the general rule that nothing will justify a mere ministerial officer, who has no judicial power, in assuming that a statute is unconstitutional and acting accordingly.

The argument that we have adopted on this point is driven home by the fact that, from the record before us, the other justices of this Court do not agree as to the constitutionality of Act 132 of 1969. We cannot see how we could rule that mandamus should issue to enforce a plain ministerial duty when that duty remains unclear to this Court.

While we believe that an early determination of the substantive legal question which the appellees attempt to present is a desirable end, we cannot agree with the suggested means to reach it, whereby this Court would perform a transformation of this proceeding. What all the parties have treated and argued as an action for mandamus would be changed into a suit for declaratory judgment. The judge who heard this case below, in his amended opinion, ruled: “The subject case is not a suit for declaratory judgment and the provisions regarding the Attorney General are not applicable.” The appellees, in both their brief and their oral argument, readily admitted that remedies other than mandamus were available to them. They stated in oral argument that they chose mandamus because they believed it to be a short-cut. A change by this Court in the choice made by the appellees, in our opinion, requires a rewriting of the record before us.

In regard to the argument for treating this proceeding as a declaratory judgment action, the case at bar has several features which distinguish it from the case of Culp v. Scurlock, 225 Ark. 749, 248 S.W. 2d 851 (1955). There the question was the proper interpretation of an exemption in the cigarette tax statutes as to parties to the proceeding. Here the question which the appellees try to raise is whether all permits issued to private clubs in “dry” counties pursuant to a statute are void on constitutional grounds regardless of whether the holders of the permits are parties to the proceeding.

It is also suggested that this proceeding has become a class action. No legal authority has been cited in support of this position.

We can find no proof in the record of this case which would support a finding that:

a. the intervenors and friends of this Court represented a class which included, as members, the holders of all private club permits in “dry” counties,
b. any parties are adequately representative of any class, or
c. any form of notice, whether reasonable or not, has been given to the members of any class, advising them that a res adjudícala determination would be made of their rights.

This absence of proof as to basic class action requirements leaves the position that this proceeding has become a class action unsupported by evidence.

We do not believe the rights of the members of any class, whether alcoholic beverages are involved or not, should ever be determined without reasonable notice or without evidence that parties are adequately representative of the class. This statement is in harmony with both our concept of due process of law and the restrictive view taken by this Court toward class actions in the case of Ross v. Ark. Communities et al, 258 Ark. 925, 529 S.W. 2d 876 (1975).

The appellees cite three statutes as authority for their right to maintain a mandamus action in the Pulaski County Circuit Court. One of these statutes, Ark. Stat. Ann. § 27-603 (1962 Repl.), places venue in Pulaski County for actions brought against State boards.

Another of these statutes is Ark. Stat. Ann. § 33-102 (1962 Repl.) which defines a writ of mandamus. We can find no language in this statute which would remove either of the grounds upon which we base our opinion that mandamus is not a proper procedure in the instant case. These two grounds are part of the safeguards which have been erected around this procedure to limit its use to circumstances which require a remedy of its extraordinary character.

The appellees also cite Ark. Stat. Ann. § 48-805 (1964 Repl.) which bears the title of “Mandamus of county officials.” A reading of Initiated Act 1 of 1942 clearly indicates that this section is intended to apply to matters relating to local option elections, such as the petition for an election, its conduct, and the certification of its results, and not to a mandamus proceeding seeking to void and rescind permits granted to private clubs under Act 132 of 1969.

This opinion is written on behalf of a plurality of the justices who heard this case. Byrd, J., Hickman, J. and the writer would reverse and dismiss because we are of the opinion that appellees have not presented a case in which a writ of mandamus should be issued.

Fogi.f.man, J. would reverse and dismiss this case on its merits. He would not rule Act 132 of 1969 unconstitutional.

The decision of this Court is that this case is reversed and dismissed.

Harris, C.J., and George Rose Smith and Roy, JJ., dissent.

Hoi/r, J., disqualified and not participating.

John A. Fogleman, Justice,

concurring. I wholeheartedly agree with Mr. Justice Smith that the issue in this case should be decided. Although it is true that the respondents in this case pleaded that mandamus was not the proper remedy, they have abandoned that position and are as anxious for the real issue to be decided as the petitioner is. In spite of this, the plurality has permitted intervenors and amici curiae to dominate and assume control of the litigation. The reasons for the Alcohol Control Board and its Director wanting a resolution of the question, without being put into a whole new squirrel cage of litigation are both obvious and appropriate. The reasons for interveners wanting to avoid the real issue by leading the petitioner through a jungle of barbed wire procedural entanglements may be as obvious, but not as appropriate. It is as if they seek to postpone the evil day of an inevitably unfavorable conclusion. More time, effort and argument have been directed toward the propriety of the remedy than to the real issue raised by the petitioners for mandamus. This case is a classic example of the reason that intervenors and amici curiae should not be permitted to control litigation into which they inject themselves, however properly. See Giles v. State, 261 Ark. 413, 549 S.W. 2d 479; Grayson v. Arrington, 225 Ark. 922, 286 S.W. 2d 501; Weber v. Pryor, Governor, 259 Ark. 153, 531 S.W. 2d 708. The interest of a citizen and taxpayer in having the laws enforced and public duties performed is sufficient basis for application for the writ. 52 Am. Jur. 2d 713, Mandamus § 390. See Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485; Buchanan v. Halpin, 176 Ark. 822, 4 S.W. 2d 510; Moses v. Kearney, 31 Ark. 261.

I do not agree that mandamus was not the proper remedy. It is designed to permit the citizen to force a public officer to perform his duty. See State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. The writ is an order of the circuit court commanding an executive, judicial or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law. Ark. Stat. Ann. § 33-102 (Repl. 1962). It is a plain, simple, direct and adequate remedy, when the validity of a statute is the only question involved. The requirement that a petitioner have no adequate remedy at law before he is entitled to mandamus does not mean that there must be absolutely no way in which he can come up with another remedy. An adequate remedy at law, sufficient to preclude mandamus, is a remedy which is plain and complete, as practical and efficient to the ends of justice and the proper administration thereof as the remedy invoked. Ghent v. State, 189 Ark. 747, 75 S.W. 2d 67. There we said that the adequate remedy contemplated by the law must be one which itself enforces in some way the performance of the particular duty and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance.

Obviously, had appellees pursued the matter by seeking a declaratory judgment, they would have been confronted by many questions. The first would probably have been that no litigation was threatened. See Jessup v. Carmichael, 224 Ark. 230, 272 S.W. 2d 438. The next question raised would have been compliance with Ark. Stat. Ann. § 34-2510 (Repl. 1962). That section requires that all persons be made parties who claim any interest which would be affected by the declaration and the declaration would not prejudice the rights of persons not parties to the proceeding. McFarlin v. Kelly, 246 Ark. 1237, 442 S.W. 2d 183; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21. The flood of interventions and the abundance of amici curiae clearly show that this remedy would not have been plain or practical. And then, a declaratory judgment is not self-executing. After obtaining a favorable judgment, the appellees would have been required to apply to the court for the relief they sought by mandamus and then any adverse party would be permitted, after reasonable notice, to show cause why this relief should not be granted. Ark. Stat. Ann. § 34-2507 (Repl. 1962). This is not the plain, complete, practical and efficient remedy contemplated as a bar to mandamus.

The alternate remedy must be well adapted to remedy the wrong complained of and if it is inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. If resort to further action might be necessary to enforcement of the right after pursuing the other remedy, the court may properly issue the writ. Huie v. Barkman, 179 Ark. 772, 18 S.W. 2d 334. There was no abuse of the trial court’s discretion in determining that mandamus was the proper remedy. We should not hold that it was an abuse of discretion. In my view, it is an abuse of discretion to hold that he erred in this respect.

I particularly deplore the plurality’s taking the stance that constitutional questions are not to be decided in a mandamus proceeding. There is ample authority to the contrary. See 52 Am. Jur. 2d 418, Mandamus 95. The position taken on this point by the plurality of this court is definitely a minority view. The difficulty of the-legal questions presented is not an excuse for the denial of relief on the ground that there is no clear legal right to the remedy. 55 CJS 93, Mandamus, § 53. The fact that there is a disputed question of law and the construction of a statute involved does not make mandamus unavailable. 55 CJS 95, Mandamus § 53. What is even more important is the public interest involved, as is always the case when any element of the alcohol problem is treated. The public interest demands that the question be settled one way or the other. The public interest may be the actuating reason for granting the writ, even though the petitioner may not have a clear legal right thereto. 52 Am. Jur. 2d 360, Mandamus § 35. If public policy demands an early determination of the issues involved, the court may grant the writ if the circumstances warrant, notwithstanding the existence of another remedy. 52 Am. Jur. 2d 372, 375, Mandamus §§ 46, 49.

I have quite a different view from that of my brother Smith as to what is nonsense and what isn’t. In my view, the two acts in question are not in irreconcilable conflict and Act 132 of 1969 should be held valid.

Jn approaching the question, we must start with the strong presumption that the legislative act is valid. State v. Moore, 76 Ark. 197, 88 S.W. 881, 70 LRA 671; Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634. All doubts must be resolved in favor of constitutionality and the courts must construe an act so it will meet the test of constitutionality if it is possible to do so. Stone v. State, supra. Then we must not ignore the expressed intent of the legislature but must give effect to its language if reasonably possible to do so. 82 CJS 583, Statutes, § 322; 73 Am. Jur. 2d 362, Statutes, § 158. See State v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 606, 174 S.W. 248; City of Ft. Smith v. Gunter, 106 Ark. 371, 154 S.W. 181. In § 1, the General Assembly reaffirmed the public policy of the state that the qualified electors of any political subdivision have the right of local option to prohibit the sale or manufacture of intoxicating liquor therein pursuant to Initiated Act 1 of 1942. In § 20, it stated the legislative intent thus:

* * * Nothing in this Act shall be construed to authorize the sale of alcoholic liquors or beer, or to allow the issuance of any permit therefor, in any ward or portion of a city, or in any county, or portion thereof, in which the sale of alcoholic liquors or beer is prohibited pursuant to local option election held under the Initiated Act, nor shall anything in this Act be deemed to amend or repeal any of the provisions of said Initiated Act.

I agree that if there is an irreconcilable conflict between Act 132 and Initiated Act 1 of 1942, that the legislature could not either repeal or amend the Initiated Act on the vote recorded on the later act. But we should not declare the express declaration of the legislative intent to be nonsense, if it is possible to construe the act in accordance with that intent.

If I could find any definition of the acts prohibited in dry territory by Initiated Act 1, contrary to Act 132, I would agree that Act 132 was invalid insofar as dry territory is concerned. Initiated Act No. 1 makes it unlawful to manufacture, sell, barter, loan or give away intoxicating liquor in any county, township, municipality, ward or precinct in which the manufacture or sale is prohibited by a local option election. At such elections the voters voted for or against the manufacture or sale of intoxicating liquors, not “wet or dry.”,The prohibited acts are not further defined. In Act 132, the General Assembly said:

Section 10. (a) The General Assembly recognizes that many individuals in this State serve mixed drinks containing alcoholic beverages to their friends and guests in the privacy of their homes and, in addition, many individuals associated together in private non-profit associations and/or corporations established for fraternal, patriotic, recreational, political, social or other mutual purposes as authorized by law, established not for pecuniary gain, have, for their mutual convenience, provided for the preparation and serving to themselves and their guests of mixed drinks prepared from alcoholic beverages owned by such members individually or in common under a so-called ‘locker,5 ‘pool,5 or ‘revolving fund5 system. In order to clarify the alcoholic beverage control laws of this State, and to regulate and prohibit the sale of alcoholic beverages in violation of the provisions of this Act and other applicable alcoholic beverage control laws of this State, the General Assembly hereby determines that the preparation, mixing and serving of such mixed drinks, beer and wine for consumption only on the premises of a private club as defined in Section 2 (j) hereof by the members thereof and their guests, and the making of a charge for such services, shall not be deemed to be a sale or be in violation of any law of this State prohibiting the manufacture, sale, barter, loan or giving away of intoxicating liquor whenever:
(1) The alcoholic beverages, beer and wine so consumed have been furnished or drawn from private stocks thereof belonging to such members, individually or in common under a so-called ‘locker,’ ‘pool,’ or ‘revolving fund’ system, and are replenished only at the expense of such members;
(2) Such private club has acquired a permit from the Board, in such form as the Board may appropriately determine. No private club permitted hereunder shall sell alcoholic beverages either by the package or drink. Alcoholic beverages, beer and Wine owned by members may be stored on the premises of the club. If any permittee shall sell, barter, loan or give away any intoxicating liquor in violation of this Act or other alcoholic beverage control laws of this State, the permit of such club shall be revoked.
(c) The Alcoholic Beverage Control Board is hereby authorized and directed to establish rules and regulations with respect to permits issued under the provisions of this Section to assure compliance with the provisions hereof and to prohibit any permittee from engaging in the unlawful sale of alcoholic beverages.

I have searched for any definition of the acts prohibited by Initiated Act 1 other than the statement contained in the act itself. I have found none. I submit, therefore, that the later act did not amend Initiated Act 1 by changing any definition of those terms.

I find that the legislature has taken a position very similar to that this court took many years ago in sustaining the conviction of one accused of selling intoxicating liquor without a license. The court, in rejecting an argument made by the accused, made a distinction that fully recognized the possibility of similar legal transactions which would not constitute a sale. In Hunter v. State, 60 Ark. 312, 30 S.W. 42, the court said:

* * * It is said by appellant’s counsel, in argument, that “any personal property may be purchased and held by the purchasers as tenants in common.” But a tenancy in common is not created by several purchases of distinct and specific portions of common property, for it is said: “Tenants in common are generally defined to be such as hold the same land together by several and distinct titles, but by unity of possession, because none knows his own severalty, and therefore all occupy promiscuously.” Black, Law Diet. The purchases in this case were not like the purchases made by the servant or employe of a club, or partnership, or other persons acting in a body as one person, for in such case each does not buy a specific quantity, but the body buys, and each member of the body has an interest, not in any particular part or portion of the whole, but in every drop and particle, — something after the manner of a tenancy in common. * * *

See also, Fenix v. State, 90 Ark. 589, 120 S.W. 338; Whitmore v. State, 72 Ark. 14, 77 S.W. 598.

In my opinion Act 132 of 1969 neither amended nor repealed Initiated Act No. 1 and the trial court erred in so holding. I must add that the ineffectiveness of enforcement of Act 132 is not a matter to which this court should address itself. That is a matter that should be called to the attention of the executive and legislative branches and to the Alcohol Control Board and its Director. The fact that a permit fee is paid is an inappropriate basis for holding the act invalid. The cost of regulation should be borne by the permittees and the operation should be controlled. The imposition of a gross receipts tax on services rather than sales is not at all a novel approach in Arkansas. Ark. Stat. Ann. § 84-1903 (Repl. 1960 and Supp. 1975).

I would reverse the judgment and dismiss the proceeding.

Carleton Harris, Chief Justice,

dissenting. My reason for dissenting in this case can be expressed quickly and concisely.

Initiated Act No. 1, inter alia, provides:

“It shall be unlawful for any person, firm or corporation, to manufacture, sell, barter, loan or give away intoxicating liquor in any County, Township, Municipality, Ward or Precinct in which the manufacture or sale of intoxicating liquor is or shall be prohibited under the provisions of this Act.”

It is my feeling that § 10, the private club provision of Act 132, is an attempted amendment of Initiated Act No. 1, and accordingly required a two-thirds vote of both houses of the General Assembly. This vote, of course, the measure did not receive.

Actually, I consider the provision of § 10 relative to the charge for a drink in a private club constituting a charge for services, rather than a sale of the alcoholic beverage, to be simply an attempt to evade the mandatory provisions of Initiated Act No. 1, quoted above.

Accordingly, I would affirm.

George Rose Smith, Justice,

dissenting. My dissent goes primarily to the three-judge plurality opinion, which expresses the view that the case should be dismissed because an action for mandamus is not the proper remedy. I am firmly of the opinion that the principal issue should be faced and decided — not side-stepped, as the plurality opinion has done. In fact, four of the seven judges are reaching the merits of the case.

The original parties to the case have asked us to decide what all the parties, including the intervenors, have stipulated to be the only substantive legal issue: the validity of private club permits. The plaintiffs brought the suit for the single purpose of having that question decided. The only defendant, the Director of the Alcoholic Beverage Control Board, appearing by counsel, closed his oral argument in this court by stating positively: “We ask that this case be decided on the merits; we want to know our position under the law.”

Despite that bipartisan request, the plurality opinion avoids the issue by pointing out that a suit for a declaratory judgment would be a proper remedy. I agree, but our duty to treat a mandamus action as one for a declaratory judgment was established more than 20 years ago. Culp v. Scurlock, 225 Ark. 749, 284 S.W. 2d 851 (1955). There, as here, it was argued that mandamus is not the proper method of raising an important issue of public interest (in that instance, the meaning of a statute). Our answer was short and unmistakably clear:

It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute . . . Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes. [Citing authorities.] This complaint states all the facts necessary to a petition for a declaratory judgment, and it is the statement of facts rather than the prayer for relief that makes up the cause of action. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633. Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits.

We so decided it, our opinion ending with this directive: “Reversed, a declaratory judgment to be entered here.”

Two main arguments have been made against the propriety of settling this litigation once and for all by a declaratory judgment. It is said, first, that all necessary parties may not be represented and, second, that the property rights of absent persons may be affected.

The two arguments go hand in hand and may be discussed as one. If a declaratory judgment suit had been brought to begin with, it would probably have been a class suit, for the number of private clubs and the membership in the unincorporated ones must run to thousands. Yet the case at bar has in substance become a class suit, for the intervenors and the friends of the court include legitimate clubs of every kind envisaged by the statute; that is, country clubs and veterans’ organizations, some in wet counties and some in dry ones. None is unrepresented. The intervenors had the opportunity to stand aloof and insist upon their being sued as representatives of the class. They rejected that alternative and actively took part in the case. They should not be able to have it both ways.

As to property rights, the intervenors and the friends of the court are here only because they all affirmatively insist that their property rights will be affected by the decision. The intervenors participated fully in the trial, joined in the stipulation of facts, and had the opportunity to present or proffer proof. Moreover, afte the circuit judge refused to allow his judgment to be superseded, the intervenors obtained a supersedeas in this court by asserting positively that the property rights of private clubs throughout the state were at stake. Upon this record it cannot reasonably be said that the holders of property rights in the private clubs have not had their day in court.

Parenthetically, the makeweight reasons adduced by the plurality are specious. The suggestion that the Director’s duty is not clear because the members of this court are in disagreement implies that a writ of mandamus can be issued only by a unanimous court — an absurdity. That the trial judge did not treat the case as one for a declaratory judgment was also true in Culp v. Scurlock, but we so treated it. Finally, judicial restraint deters me from commenting upon the plurality’s statement that they “believe that an early determination of the substantive legal question which the appellees attempt to present is a desirable end.” Indeed?

Inasmuch as the plurality opinion does not reach the validity of Act 132 of 1969, as it applies to privat'e clubs, and the rest of us are not in agreement, my comments upon that issue are brief. Act 132 was intended primarily to permit the open sale of intoxicants by large restaurants and hotels, for consumption on the premises. Section 2 declares that purpose. The act levies a minimum $500 annual privilege tax and a 10% supplemental tax upon gross receipts from the sale of intoxicants. Sections 7 and 8. I do not understand the validity of the act to be questioned, insofar as it applies to sales by restaurants and hotels pursuant to a local option election held under Section 4 (d) of the act.

Section 10 of Act 132 authorizes the issuance of similar permits to certain private clubs, which, under Section 2, must have at least 100 members and must have been in existence for a year or more before the permit is applied for. Section 10 declares that the “preparation, mixing and serving” of mixed drinks under a “locker,” “pool,” or “revolving fund” system is not a sale. The section, however, levies the same $500 annual privilege tax and the same 10% supplemental gross receipts tax as those levied upon restaurants and hotels, except that in the case of private clubs the 10% tax is upon the gross receipts derived from “charges” made for the preparation, cooling, and serving of mixed drinks or beer drawn from the private stocks of club members. The only issue raised by lhe plaintiffs’ complaint and by the stipulated facts is whether Act 132 is valid with regard to private clubs that comply meticulously with its provisions. (Of course, we are all aware, by common knowledge, that private clubs in restaurants and hotels in strictly dry counties do not meticulously comply with the act; but that matter is not before us.)

The private-club provision of Act 132 is invalid if it amended Initiated Act 1 of 1942, because Act 132 did not receive a two-thirds vote in the Senate. I do not see how it can be seriously argued that the later act did not amend the earlier one. Initiated Act 1 provided for local option elections to prohibit the issuance of licenses for “the manufacture or sale, or the bartering, loaning or giving away of intoxicating liquor.” Ark. Stat. Ann. § 48-801 (Repl. 1964). With respect to the Thorn Liquor Law (Act 108 of 1935), the language of Initiated Act 1 created a completely effective local option law, because the Thorn act permitted the issuance of a retailer’s license for the distribution of intoxicants only in areas that had voted wet. Act 132 of 1969 purports to authorize the issuance of comparable licenses to private clubs in dry areas. The conflict between Act 132 and Initiated Act 1 is unmistakable. What one forbids, the other allows.

The argument by the appellants seems to be that the Initiated Act prohibited only the manufacture, sale, bartering, lending, or giving away of intoxicants. Upon that reasoning Act 132 is said to be valid, because the dispensing of such beverages under a locker, pool, or revolving fund system is not manufacturing, selling, bartering, lending, or giving away.

With respect, I think that argument verges on nonsense. The words of Initiated Act 1 must be read as a unit, expressing a single purpose rather than a multiple one. The issue in a wet-dry election, which is what the submission of Act 1 amounted to, is “wet or dry,” not “wet, dry, or moisturized.” True, the Initiated Act did not explicitly prohibit a locker, pool, or revolving fund system, nor, for that matter, did it explicitly prohibit the raffling off, growler rushing, or mortgaging of intoxicants. All the same, the people’s intent was clear, just as it was in the Eighteenth Amendment to the national Constitution, which referred only to the manufacture, sale, or transportation of intoxicants. Neither measure was designed to leave a loophole big enough to drive a beer truck through. I think it our duty to give effect to the people’s plain intent.

Roy, J., joins this opinion.


author: George Rose Smith, Justice.

text:
    Bobby J. NORRIS v. STATE of Arkansas
    CR 77-45
    555 S.W. 2d 560
    Opinion delivered September 12, 1977
    (In Banc)
    [Rehearing denied October 17, 1977.]

      Nabors Shaw, Robert L. Shaw and James D. Emerson, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant’s first conviction upon the present charge of delivery of marihuana was reversed on appeal. Norris v. State, 259 Ark. 755, 536 S.W. 2d 298 (1976). The essential facts are stated in that opinion. Upon a retrial the appellant was again convicted and was sentenced to imprisonment for three years and to a fine of $1,-000. We find no merit in either of his contentions for reversal.

First, it is argued that the jury panel should have been quashed because two of the jury commissioners who selected the wheel of jurors had served on a petit jury within the preceding two years and had in fact served on the petit jury which convicted the appellant at his first trial. The pertinent statutes provide: (a) Jury commissioners shall possess the qualifications for petit jurors (Ark. Stat. Ann. § 39-201 [Supp. 1975]); (b) a petit juror is ineligible to serve for two years after he is excused from further service (§ 39-103); (c) except by consent of the parties a person cannot serve as a petit juror in a case if he was a petit juror in a former trial of the cause (§ 39-105); and id) no person shall be appointed as a jury commissioner who has served in that capacity within the preceding four years (§ 39-202). It is argued that the effect of the statutes is to disqualify the two jury commissioners in question.

The court was right in refusing to quash the jury panel. No possibility of prejudice is shown. Polk County has some 8,000 registered voters, as we know by judicially noticing the records of the Secretary of State’s office. Mid-State Homes v. Knight, 237 Ark. 802, 376 S.W. 2d 556 (1964). The jury wheel should therefore contain the names of at least 600 prospective petit jurors. § 39-205. There is no suggestion that either commissioner had any animosity toward the appellant. It would be patently impossible for two jury commissioners, out of a total of from three to twelve commissioners, to influence the selection of more than 600 names in such a way as to adversely affect the trial in a pending marihuana case. Moreover, we do not think the two commissioners were even technically disqualified to serve. The restrictions upon a petit juror’s frequency of service go to his eligibility, not to his qualifications. The legislature has specifically provided only that a jury commissioner be ineligible to serve in that capacity oftener than once every four years. We do not take the statutory reference to a petit juror’s qualifications, as distinguished from his eligibility, to disqualify the two commissioners. To the contrary, it may well be desirable that a jury commissioner have prior experience as a juror. The circuit judge, especially in view of the total lack of any showing of prejudice, correctly overruled the challenge to the panel.

Second, it is argued that delivery of marihuana is not an offense under Arkansas law. Counsel rely upon White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976), holding that under the statutes then in force the mere possession of marihuana was not a misdemeanor. That case does not support the present contention, even by analogy, because in two more recent decisions, both directly in point, we have held that the delivery of marihuana is now a felony. Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977); Johnson v. State, 261 Ark. 13, 546 S.W. 2d 719 (1977). Those two decisions are controlling.

Affirmed.


text:
    Kenneth Earl ANDREWS and Robert Lee GOODMAN v. STATE of Arkansas
    CR 77-61
    555 S.W. 2d 224
    Opinion delivered September 12, 1977
    (Division I)

      McArthur <3? Johnson, P.A., for appellants.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The two appellants were jointly tried for having delivered heroin on June 26, 1976. Both were found guilty and were sentenced to ten years ’ imprisonment. They question, primarily, the court’s instructions to the jury and, secondarily, the sufficiency of the State’s proof.

The State’s undercover agent testified that he arranged for the purchase during a telephone conversation with the defendant Goodman. Goodman met the agent outside Goodman’s house and accompanied him into the house. There the defendant Andrews participated in the sale by delivering the heroin to the agent and accepting payment. Upon that proof the defendants complain of this instruction:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
Solicits, advises or encourages the other person to commit it; or
Aids, agrees to aid, or attempts to aid the other person in planning it or committing it.
A person is criminally liable for the conduct of another person when he is an accomplice of another person in the commission of an offense.

The instruction, with some rearrangement, is taken almost verbatim from two successive sections of the Criminal Code of 1976. Ark. Stat. Ann. §§ 41-302 and -303 (Grim. Code 1976). The appellants nevertheless argue that the instruction is wrong, because it mentions accomplices when both defendants were principals and because it makes one person responsible for another’s conduct rather than only for his own.

That argument misconceives the purpose and the effect of these provisions of the Code. See, generally, Comment, “The Impact of the 1976 Criminal Code on the Law of Accessorial Liability in Arkansas,” 31 Ark. L. Rev. 100 (1977). The draftsmen were not here concerned with the former distinction between principals and accessories. In fact, those terms are not used in the Code. The draftsmen were saying instead, in simple and clear language, that when two (or more) persons assist one another in the commission of an offense, each is an accomplice and is criminally liable for the conduct of both. The word “accomplice” does not imply (as “accessory” once did) that either is subordinate to the other. It is simply a shorthand way of saying that both are responsible. That point is made clear by § 301 of the Code, which reads: “A person may commit an offense either by his own conduct or that of another person. ” Ark. Stat. Ann. § 41-301. Thus each participant is criminally liable, ultimately, only for his own conduct, but he cannot disclaim responsibility merely because he did not personally take part in every act that went to make up the crime as a whole.

Second, it is argued that the court incorrectly told the jury that the minimum confinement for delivery of heroin is 10 years and the maximum is 30 years. The court was right. Under our original Uniform Controlled Substances Act (Act 590 of 1971), there was uncertainty about some of the penalties. Later legislation, however, has dispelled that uncertainty. Act 67 of the First Extraordinary Session of 1972 fixed the maximum penalty for the present offense at 30 years, with no stated minimum. Act 186 of 1973 (at page 659 of the printed Acts) specified a minimum punishment of 5 years and retained the 30-year maximum. Act 1005 of 1975 (which took effect before the date of this offense) increased the minimum to 10 years. The various acts are compiled as Ark. Stat. Ann. §§ 82-2617 (a) (1) (i) and 82-2641 (Repl. 1976).

Third, the appellants, in questioning the sufficiency of the evidence, concede that the State’s proof is adequate if the testimony of the undercover agent is believed. It goes without saying that the credibility of witnesses is a matter for the jury, not for this court.

Affirmed.

We agree. Harris, C.J., and Roy and Hickman, JJ.


author: John A. Fogleman, Justice.

text:
    Richard FRANCE v. STATE of Arkansas
    CR 77-65
    555 S.W. 2d 225
    Opinion delivered September 12, 1977
    (Division II)

      Jeff Duty, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was charged with second degree escape, but was found guilty of third degree escape in a court trial. On appeal, his only contention is that under the evidence, he could not be convicted of this offense on the charge placed against him. We disagree and affirm.

The information filed charged appellant “. . . with the crime of wilfully and feloniously escaping from a correctional facility, to wit: Benton County Jail ...” Appellant’s basic contention is capsuled in the first paragraph of his “Brief and Argument,” viz:

The evidence in this case revealed that the appellant had been arrested by Officer Bertschy and Sgt. Casto and taken to the Benton County Jail where he was in the process of being “booked.” While he was actually in the County Jail and a prisoner therein, he managed to escape from the jail. There is no question but what the appellant was in detention in the County Jail by virtue of the arrest and issuance of the white warrant by Mr. Bertschy. If he escaped from anything, he escaped from the Benton County Jail by the undisputed testimony.

We accept appellant’s evaluation of the evidence for the purposes of this opinion.

Under the Arkansas Criminal Code, a person commits the Class D felony of second degree escape if he escapes from a correctional facility. Ark. Stat. Ann. § 41-2811 (1) (c) (Grim. Code, 1976). He commits the Class A misdemeanor of third degree escape if he escapes from custody. Custody means actual or constructive restraint by a law enforcement officer pursuant to an arrest or a court order, but does not include detention in a correctional facility, juvenile training school, or a state hospital. Ark. Stat. Ann. § 41-2801 (Crim. Code, 1976). The offense of which appellant was found guilty is one included in the offense with which he was charged. See Ark. Stat. Ann. §§ 41-115, 41-105 (2) (c) (Crim. Code, 1976); Commentary, under § 41-2812. Since this is so, appellant is in no position to complain of being found guilty of the lesser crime. Thurman v. State, 211 Ark. 819, 204 S.W. 2d 155; Caton v. State, 252 Ark. 420, 479 S.W. 2d 537; Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713, cert. den., 373 U.S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412; Hamer v. State, 104 Ark. 606, 150 S.W. 142; Sexton v. State, 91 Ark. 589, 121 S.W. 1075.

The judgment is affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


author: Darrell Hickman, Justice.

text:
    Charla Fell YANDELL v. STATE of Arkansas
    CR 77-51
    555 S.W. 2d 561
    Opinion delivered September 12, 1977
    (Division Í)
    [Rehearing denied October 17, 1977.]

      E. L. Holloway, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Charla Fell Yandell was charged in Clay County Circuit Court with the second degree murder of her infant seventeen month old boy. She was convicted of voluntary manslaughter and sentenced to seven years imprisonment in the state penitentiary.

Mrs. Yandell alleges four errors on appeal, but essentially they amounfto two: the facts did not warrant nor will they support her conviction; and a doctor from Mexico, unlicensed in the United States, was permitted erroneously to give expert medical testimony.

We find no error in the record.

Mrs. Yandell persisted in her innocence before and during trial. She claimed the boy fell accidentally from the kitchen table, striking his head; and, also, in falling dragged off on top of him, a typewriter, which was on the table. She denied ever beating the child, except blows she may have rendered in efforts to revive him. It was her contention that his unconscious state and subsequent death, three days later, were caused by the accidental fall. Mrs. Yandell was the only eyewitness to the incident.

The main argument of Mrs. Yandell on appeal is there was not sufficient evidence to warrant or support her conviction. We find on review the evidence, circumstantial in nature, was sufficient to warrant and support her conviction.

There were several witnesses who testified; however, the most damaging evidence against Mrs. Yandell was the testimony of two doctors — a doctor in Corning and a resident neurosurgeon in Memphis. The doctor in Corning examined the child and immediately sent him to a hospital in Jonesboro. He was examined there and transferred to a Memphis hospital where he was treated by the resident in neurosurgery. These doctors testified the child suffered from a brain concussion. They both were of the opinion the child had been physically abused. Both ordered photographs of the boy’s body after their initial examinations. The photographs graphically corroborated their opinions that the child had old bruises inflicted before the fall. Mrs. Yandell denied she had ever beat or struck the child. She explained the bruises on the back and lower extremity of the child were the result of her efforts to revive the child or were caused by accidental bumps or falls prior to the fatal injury. Evidently the jury chose to disbelieve Mrs. Yandell’s story.

Direct evidence only is not necessary for one to be convicted. Circumstantial evidence can present a question for the jury and be the basis to support a conviction. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974). There is ample evidence in the record, regardless of the consistent denial of child abuse by Mrs. Yandell, to support the finding of the jury that Mrs. Yandell caused the death of her child.

The appellant also alleges as error that one of the doctors, the resident, improperly testified as an expert medical witness. Her objection is that he was a Mexican, unlicensed in any of these United States, and, therefore, not qualified to give expert medical testimony. The witness was a senior resident in neurosurgery at the hospital where the infant was taken and treated. Three days later the infant died in the hospital never regaining consciousness. The resident was the attending physician.

The objection to the resident’s deposition was made in the form of an oral declaration by counsel for Mrs. Yandell that a motion to suppress the deposition would be filed. The parties went into chambers and the record is silent as to any further objection by counsel. There was no specific objection made during the trial as to the lack of qualifications of the resident to give expert testimony. Even so, such a bare objection has no merit. Expert testimony may be given by individuals qualified by experience, knowledge or know-how. See Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927). A degree, title or license is handy but no guarantee of expert qualification. A trial court decides, with discretion, whether a particular witness is qualified. See Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975). We find no error in the action of the trial court in permitting the resident, although unlicensed in any state, to testify.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.