author: Darrell Hickman, Justice. John A. Fogleman, Chief Justice,

text:
    William E. BEAUMONT, County Judge of Pulaski County, Arkansas v. Richard B. ADKISSON, Circuit Judge
    79-311
    593 S.W. 2d 11
    Opinion delivered January 14, 1980

      James L. Sloan, for petitioner.

      Steve Clark, Atty. Gen., by: Russell Meeks III, Deputy Atty. Gen., for respondent.

      Robert L. Brown, of Harrison & Brown, P.A., for Amicus Curiae, County Judges Association of Arkansas.
   Darrell Hickman, Justice.

William E. Beaumont, County Judge of Pulaski County, asks for a writ to prohibit Pulaski County Circuit Judge, Richard B. Adkisson, from ordering Beaumont to show cause why he should not be held in contempt of court. We granted a temporary stay and now make it permanent.

Adkisson, who is one of five Pulaski County Circuit Judges, issued an order September 7, 1979, finding that two of his employees, a Probation Officer/Bailiff and a Secretary/Case Coordinator, should be paid salaries of $16,500.00 per year. The order recited, as its authority, Act 629 of 1979, Acts of Arkansas. The order instructed “Pulaski County, Arkansas, the county judge thereof, and all other appropriate officers of Pulaski County, Arkansas” to pay the salaries. The court’s order is Exhibit A to this opinion. Act 629 is Exhibit B.

Beaumont presented an ordinance to the Pulaski County Quorum Court which would have appropriated the money to pay these salaries, however, the quorum court on two occasions failed to pass the ordinance. Consequently, Beaumont was told by Judge Adkisson to appear and show cause why he should not be held in contempt for refusing to pay the salaries as ordered.

Beaumont argues in his petition that the act he has been commanded to perform is illegal and that, therefore, the court has no jurisdiction to enforce it. Beaumont attacks the order on four grounds. First, Act 629 violates the equal protection clause of the state and federal constitutions. Second , that a county judge cannot expend funds for which there has been no appropriation. Third, that Act 629 violates the ban in the state constitution on local legislation. Fourth, that it unconstitutionally delegates legislative power to a judicial officer. We will deal only with the third and fourth points.

Adkisson argues in his response that Act 629 is not discriminatory, that he can order a county judge to pay money where the administration of justice is involved, that Act 629 is permissible local legislation because it deals with the administration of justice, and that the legislature can delegate to a judicial officer the right to set, within limits, a salary.

The County Judges Association has filed an amicus curiae brief and essentially argues that Amendment 55, Section 3, to the Arkansas Constitution prohibits the county judge from disbursing funds without a quorum court appropriation; that the General Assembly has no authority to fix the number of county employees or the compensation they receive, or that, in any event, there has to be an appropriation; and that the court’s order is invalid.

Prohibition is the proper remedy in this case. We said in Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W. 2d 157 (1958).

. . . The writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction and where the remedy by appeal, though available, is inadequate. . . . And where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. ... Id. at 920.

There is no doubt that the Act violates Amendment 14 to the Arkansas Constitution, which reads: “The General Assembly shall not pass any local or special acts. . . .’’ Act 629 applies only to the “Fourth Division Circuit of the Sixth Judicial Circuit;’’ the Act does not apply to the other four circuit judges in the Sixth Judicial Circuit. There are five circuit judges in the Sixth Judicial Circuit. Ark. Stat. Ann. § 22-365(f) (Repl. 1962). We have since declared that there is no longer any distinction among divisions. All circuit judges have equal authority and responsibility. See Harkness. v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979).

The only way that Act 629 could be legal is if it were held to be an act relating generally to all the circuit courts in the Sixth Circuit and it is determined to be essential to the administration of justice. Cf. Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905) (act abolishing judicial district not unconstitutional). In the case of Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932), we upheld an act which created a separate chancery clerk for Pulaski County. We reviewed the reasons that the chancery court of Pulaski County was different, in a class to itself, from other chancery courts and held that the classification by the legislature was not unreasonable or arbitrary. In the case of McLellan v. Pledger, 209 Ark. 159, 189 S.W.2d 789 (1945),we held thatasalary act for the court resporter of the Fourth Chancery District did not violate Amendment 14 to the Arkansas Constitution. The act was essential to the administration of justice. Although the court named served a limited territory, the act was general in its operation.

These cases relate to legislative acts that apply generally to all officials in a general category, although only one person might hold the office affected. The act before us distinctly limits itself to one of five circuit courts in a circuit and clearly violates the intent of Amendment 14. The Act is an example of the very sort of legislation that Amendment 14 was designed to prevent.

Since the Act is void, it follows that the respondent court had no jurisdiction to issue its order. In the case of Mears v. Adkisson, 262 Ark. 636, 560 S.W. 2d 222 (1978), we held that where a court order was based on an invalid act, the court had no jurisdiction to act and, therefore, its order was void and subject to a writ of prohibition.

Act 629 is also an unlawful delegation of legislative authority. It delegates to the “Sixth Judicial Circuit, Fourth Division Circuit Court” the right to set the salaries of two employees. While Act 629 does provide that the sum will be not less than $15,600.00, nor more than that which the court reporter receives, a sum not limited, it gives a judge a right to set a salary. We have held before that circuit judges cannot set salaries. Mears v. Adkisson, 262 Ark. 636, 560 S.W. 2d 222 (1978).

The respondent judge argues that we have held in previous cases that it was not a delegation of legislative authority for certain state agencies to fix salaries within defined limits. The case of Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534 (1962), is cited as authority for that argument. In the Hooker case the question was raised whether the Highway Commission and the State Board of Education were unlawfully delegated the authority to fix the salaries of employees. The act in question in the Hooker case gave both departments the right to determine the number of employees needed and to fix their salaries within maximum authorizations. We held that this did not violate ARK. CONST., art V., § 29, which requires an appropriation by the legislature before money can be withdrawn from the state treasury. The distinction between the Hooker case and the case before us is that in Hooker the legislature had appropriated the money to pay the salaries which were authorized and set a limit on how much could be paid. In this case there has been no appropriation by the General Assembly. In effect, the court is legislating the salaries, as evidenced by its order.

Whether the state may order a county to pay salaries in such circumstances is not properly before us. It is also unnecessary for us to reach the question of whether there has to be an appropriation by the county before such a state act is valid. Neither is this a question of whether a court can order a county to pay expenses regarding the administration of justice where the county refuses to pay those necessary expenses.

We should point out that Beaumont is not subject to a contempt procedure in this case. Amendment 55 changed the duties of the county judge from being those of an official who pays claims as a judicial officer to those of an officer who pays claims as an administrative officer. See Mears v. Hall, 263 Ark. 827, 569 S.W. 2d 91 (1978). The quorum court appropriates the money and the county judge simply executes those appropriations as an administrative officer. The county judge could not pay the funds unless they were appropriated. It would require an illegal act on his part. That was not the case before Amendment 55. Therefore, it was improper to consider him in contempt of court.

Fogleman, C.J., concurs in part and dissents in part.

Stroud and Mays, JJ., not participating.

EXHIBIT A

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FOURTH DIVISION

IN THE MATTER OF THE SALARY OF THE PROBATION OFFICER/BAILIFF, and THE SECRETARY/CASE COORDINATOR OF THE FOURTH DIVISION OF THE PULASKI COUNTY CIRCUIT COURT EX PARTE

ORDER

Pursuant to the authority of Arkansas Act 629 of 1979, the court finds that the salary of the Probation Officer/Bailiff and the Secretary/Case Coordinator should be increased to and set at $16,500.00 per year, a sum which does not exceed the annual salary of the court reporter of the Fourth Division of the Pulaski County Circuit Court; that the present compensation is inadequate for these positions and the added compensation is necessary to keep competent personnel employed in the positions; and that the court has the discretion under said Act to set the salaries of the said Probation Officer/Bailiff and Secretary/Case Coordinator at $16,500.00 per year; and hereby directs Pulaski County, Arkansas, the county judge thereof; and all other appropriate officers of Pulaski County, Arkansas to pay same.

It is, therefore, CONSIDERED, ADJUDGED and ORDERED that the salaries of the Probation Officer/Bailiff and the Secretary/Case Coordinator shall be and is hereby increased to and set at $16,500.00 per year, beginning October 1, 1979, payable on the same periodic pay periods now used for county employees; and Pulaski County, Arkansas, the county judge thereof and all appropriate county officers are hereby ORDERED and DIRECTED to forthwith pay the salaries of the said Probation Officer/Bailiff and Secretary/Case Coordinator as herein directed, beginning October 1, 1979.

/s/ Richard B. Adkisson

Circuit Judge

EXHIBIT B

ACT 629, Ark. Acts of 1979

“An Act To Amend Act 3 of 1971, To Provide For An Increase in Salaries, And For Other Purposes.”

Be It Enacted By The General Assembly of the State of Arkansas:

Section 1. Section 1 of Act 3 of 1971, as amended, is hereby amended to read as follows:

“Section 1. There is hereby created the office of Probation Officer/Bailiff, Deputy Probation Officer/Clerk and Secretary/Case Coordinator of the Fourth Division Circuit Court of the Sixth Judicial Circuit.

The Sixth Judicial Circuit, Fourth Division Circuit Court, is recognized as the Court created by Act 15 of the First Extraordinary Session of 1970.”

Section 2. Section 3 of Act 3 of 1971, as amended, is hereby amended to read as follows:

“Section 3. The Probation Officer/Bailiff shall be appointed by the Judge of the Sixth Judicial Circuit Court, Fourth Division, and shall serve at the will of the Judge. In addition to the Probation Officer/Bailiff, the Judge may appoint one Deputy Probation Officer/Clerk and a Secretary/ Case Coordinator who will serve at the will of the Judge.”

Section 3. Section 4 of Act 3 of 1971, as amended, is hereby amended to read as follows:

‘‘Section 4. The salary of each person appointed as set out in Section 3 shall be set at the discretion of the Judge of the Sixth Judicial Circuit, Fourth Division, at a sum not less than Fifteen Thousand Six Hundred Dollars ($15,600.00) per annum, but not to exceed that of the court reporter, which shall be paid by Pulaski County, Arkansas.”

Section 4. All laws and parts of laws in conflict with this Act are hereby repealed.

Section 5. It is hereby found and determined by the General Assembly that the position of Probation Officer/ Bailiff, Deputy Probation Officer/Clerk and Secretary/Case Coordinator are necessary to insure efficient and proper administration of justice in the Fourth Division of Circuit Court in the Sixth Judicial Circuit and that increased salaries as provided in Section 4 of this Act must be provided immediately. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.

[Approved by Governor March 28, 1979]

John A. Fogleman, Chief Justice,

concurring in part, dissenting in part. I agree that the writ should issue in this case solely because under Amendment 55 and Act 742 of 1977, the county judge cannot disburse funds that have not been appropriated by the quorum court. Amendment 55, § 3 provides that the county judge shall authorize and approve disbursement of all appropriated county funds. Nowhere does it appear that he has any constitutionally conferred authority to disburse funds that have not been appropriated. Act742, § 78 (B) (2) [Ark. Stat. Ann. § 17-3901 (B) (2) (Supp. 1979)] provides that, before approving vouchers for payment of county funds, the county judge must determine that there is a balance of funds in the pertinent appropriation and that the expenditure is in compliance with the purposes for which the funds are appropriated. There is also a provision that no money shall be paid out of the treasury until the same shall have been appropriated by law and then only in accordance with such appropriation. See Mears v. Hall, 263 Ark. 827, 569 S.W. 2d 91. So it is clear that the county judge has no legislative authority to disburse county money that has not been appropriated.

On the other hand, if Act 629 of 1979 and the trial court’s action based upon it are valid, appropriation by the quorum court would be automatic, as the quorum court would have no discretion in the matter. Mears v. Hall, supra. Quattlebaum v. Davis, 265 Ark. 588, 579 S.W. 2d 599. Even though we said, in Quattlebaum, that the county court [judge] would have no discretion in determining whether payment should be made of obligations of a county mandated by the General Assembly, this does not mean that the county judge can be held in contempt for failure to pay funds from the county, treasury, where, as here, the quorum court has refused to make an appropriation, and where no other proceedings to establish the county’s liability have been had.

These are two bases upon which the majority finds Act 629 invalid. I do not agree that either basis is sound. Holding that the act is local legislation is contrary to every decision of this court where the administration of justice is concerned, particularly where the single court involved may issue summons to every county in the state, as every circuit court in Arkansas may do. Ark. Stat. Ann. § 27-312 (Repl. 1979).

It must be remembered that counties are still civil divisions of the state for political and judicial purposes and are the state’s auxiliaries and instrumentalities in the administration of its government. They are political subdivisions of the state for the administration of justice. The word “county” signifies a portion of a state resulting from a division of the state into such areas for the better government thereof and the easier administration of justice. In these respects we have clearly held that nothing in Amendment 55 changed the status of the county insofar as its primary purposes and functions (one of which is the administration of justice) are concerned. Mears v. Hall, supra.

In Mears we said:

* ** An act does not have to be necessary to the administration of justice in order to avoid the ban against local legislation. It is not local legislation if it pertains or relates to the administration of justice.

We then added:

In the case cited by the majority in McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789, the issue pertained to fees of the clerk of the Chancery Court of Sebastian County and those of the stenographer of the Tenth Chancery District, and it was held that the act allowing a fee to the court stenographer to be credited to the “Stenographer’s Fund Account” of the chancery district was not local legislation. The reason was that the statute related to the administration of justice because under modern conditions, the court reporter is an essential officer in reporting the proceedings of the courts. See Sebastian Bridge District v. Lynch, 200 Ark. 134, 138 S.W. 2d 81. The same question was involved and the same answer given in McLellan v. Pledger, supra. Other cases holding that legislation relating to the administration of justice is not local are: Smalley v. City of Ft. Smith, 239 Ark. 39, 386 S.W. 2d 944; City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W. 2d 829. Legislation dealing exclusively with the functions of a court of statewide jurisdiction is not local legislation. Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647. The rationale of these holdings was first stated in Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844, in the following language:
*** Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens within the jurisdiction of the court. Whether an act of the Legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and, if it affects equally all persons who come within its range, it can be neither special nor local, within the meaning of the Constitution. ***
We elaborated upon this rationale in an opinion on rehearing in Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617, in treating and disavowing an intention to impair the holding in Waterman, saying:
*** This is in recognition of that principle of state sovereignty under which the state, through its Legislature, may protect its own interest, and, by virtue of it, the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. ***
Again, in speaking of the rationale of Waterman in Cannon v. May, 183 Ark. 107, 35 S.W. 2d 70, we said:
*** A Missouri case was cited in support of the ruling. The Supreme Court of Missouri based its holding on the principle that the judicial system of the state was a whole and that acts dealing with the courts have been usually held general although not applicable to every court of like nature in the state. The ruling proceeds upon the doctrine that the judicial department of the state is a “composite unit.” *** [Emphasis mine.]
The rationale of Waterman, Cannon and Webb was relied upon in Buzbee.

In Smalley v. City of Ft. Smith, 239 Ark. 39, 386 S.W. 2d 944, we upheld Act 88 of 1963 against the contention that it was unconstitutional as local legislation and said that “legislation relating to the administration of justice is not local,” citing Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 and Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647. [Emphasis mine.]

In City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W. 2d 829, the act involved, Act 210 of 1949, fixed the salary of municipal judges throughout the state. It contained a provision that it should not apply to any city having a population of not less than 11,000 and not more than 11,800. Only the city of Jonesboro would have come within these limits, enabling that city to increase or decrease the salary fixed by the act. We said that the rule that a statutory classification must have regard to the character of the legislation and not be arbitrary ‘ ‘ does not apply where the subject matter of the act relates to the administration of justice, as it does here,” citing Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844. [Emphasis mine.] Obviously, the number of people affected by the operation of the circuit court in Pulaski County, which is not only the most populous county in the state but also a large financial, commercial, industrial and governmental center, exceeds the number which would have any contact with a municipal court in Jonesboro by hundreds of thousands.

If we didn’t mean that legislation relating to the administration of justice was not local legislation under Amendment 14, we should not have said so, over and over. See Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113, 124.

Given today’s crowded court dockets and the prevalence of crime, who is to say that either a secretary/case coordinator or a probation officer/bailiff are non-essential to the administration of justice in the particular court involved? Obviously, the General Assembly of the State of Arkansas thought they were essential. Statutory authorization has been given circuit judges to require the payment of expenses incident or necessary to a speedy and efficient administration of justice. Pope’s Digest § 2858; Crawford & Moses Digest § 2230.

Every act carries a strong presumption of constitutionality, and in any attack on constitutionality, there must be a clear incompatibility between the act and the constitution before it is held unconstitutional. All doubts must be resolved in favor of the act. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; Carter v. State, 255 Ark. 225, 500 S.W. 2d 368, cert. den. 416 U.S. 905, 94 S. Ct. 1610, 40 L. Ed. 2d 110. It must also be remembered that, if it is possible for the courts to so construe an act that it will meet the test of constitutionality, the act must be so construed. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634.

The presumption of constitutionality fully applies when a statute is attacked as local or special, and, where it is doubtful whether the act violates the constitution, the doubt must be resolved in favor of constitutionality. State v. Lee, 193 Ark. 270, 99 S.W. 2d 835; Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498.

It is true that an act is special when it arbitrarily separates some person, place or thing from others upon which, but for the separation, it would operate, but classification is still permissible if it bears a reasonable relation to the purpose of the statute. Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; Hensley v. Holder, 228 Ark. 401, 307 S.W. 2d 794. But where differences in effect of a statute are reasonably related to the purposes of the law, the statute is general and not local or special. Whittaker v. Carter, supra.

A statute that is limited in effect to only one or a few classifications is not local or special if the classification is not arbitrary and bears a reasonable relation to the purpose of the act. Thomas v. Foust, 245 Ark. 948, 435 S.W. 2d 793. The General Assembly may make a classification where it is appropriate, germane to the subject and based upon substantial differences which make one situation different from another. Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991. The judgment of the General Assembly in making statutory classifications should be controlling, unless the classification is clearly arbitrary or is manifestly made for the purpose of evading the constitution. Simpson v. Matthews, supra.

We have dealt with the question of local and special legislation in relationship to salaries in Lawhorn v. Johnson, 196 Ark. 991, 120 S.W. 2d 720, where a statute provided for payment of the expenses of county judges acting in their capacities of road commissioners in every county except three. The act provided that, in those counties, the salary fixed should also cover the expenses of the office, without any explanation of the reason for the classification. We said:

*** We cannot agree that this had the effect of making the act local or special. The compensation provided in the counties named was deemed sufficient by the Legislature to cover all the necessary expenses of the road commissioner and the Legislature had the right to so find and provide.

Given the presumption of constitutionality and due regard to the extent of the General Assembly’s control of statutory classifications, the majority has gone much too far in holding the act in question manifestly unconstitutional. It may be, but there is inherent in the legislative action a finding that the classification was appropriate and warranted. There is too much that we do not know to warrant an arbitrary declaration that the act is local and special. Does this judge preside over trials of both civil and criminal cases? If so, a case coordinator would have more burdensome duties and greater responsibilities than if not. How does the number of cases usually disposed of on this judge’s docket compare with the number on the dockets of other judges? How many people have been released on probation in criminal cases whose supervision is under the ultimate control of this judge? How does the pay range compare with that of like employees on the staffs of other judges? These and many other questions should be answered before this court declares such an act unconstitutional as local and special in this limited action for prohibition in a contempt proceeding.

I cannot agree that Act 629 is an unlawful delegation of legislative authority. The judge no more fixes the salary than does the Arkansas State Highway Commission or the State Board of Education who were involved in Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534. The holding there that the acts involved did not violate Art. 5, § 29, has nothing whatever to do with delegation of legislative power and nothing whatever to do with this case. Nobody has ever contended that Act 629 violates anything other than Art. 4, a contention that was also made in Hooker — a major detail which the majority chooses to overlook.

In Hooker in treating the contention that Act 200 of 1961 was unconstitutional in that it directed unlawful delegation of power in violation of Art. 4 of the Arkansas Constitution, we held that there was nothing in these powers delegated to the Highway Commission that contravened Art. 4, saying:

*** The act establishes the maximum salaries and wages for a maximum number of employees by grades and classes. The act does permit the Highway Commission to employ a lesser number of employees and to pay less than the maximum salaries and wages to employees in the various grades and classes. The need for employees and the salary or wage deserved by the individual employee are left for the Highway Commission’s determination. The delegation of this power is necessary for the orderly and efficient operation of the Highway Department and is not repugnant to Article 4 of the State Constitution. The Legislature has the right to delegate that power to determine facts upon which the law makes or intends to make its action depend. McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428. In this case the facts we repeat are: first, the need for the employee, and second, the ability and efficiency of the employee.

In speaking of Act 465 of 1961, relating to the State Board of Education, we said:

The State Board of Education is empowered to determine the need for employees and to fix the number of employees and salaries, within maximum authorizations. In this connection what we have said about Act 200 suffices here. The Governor is authorized to reduce the amount to be expended for Transportation Aid in each fiscal year. We find that his action must depend upon the facts to be determined and that this requirement meets the test set forth in McArthur v. Smallwood, supra, and as further set forth in State v. Davis, 178 Ark. 153, 10 S.W. 2d 513, as follows:
“The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.”

We went on to point out that Art. 5, § 29 provided that the General Assembly shall fix salaries and fees of all officers in the state and that no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person. Even though it was not contended here that Act 629 violated Art. 5, § 29, what we said there would be applicable here, viz:

Act 465 does not authorize the payment of a greater salary or fee to any employee than the amount fixed by law. We construe this provision to mean that the Legislature has the sole authority to establish the maximum remuneration to be received by any State employee and to establish the maximum number of such employees. We can find no requirement to the contrary.

Absolutely no significance was given in Hooker to the fact that appropriated funds were involved in treating the “salary-fixing” powers delegated to the two agencies of the executive branch of the government. Why can a judicial officer of our government not fix salaries within a given range, if executive officers can? In its consideration of Hooker, the majority has not treated the questions raised here at all.

It would be far, far better if the court would leave the answer to the question of constitutionality to another day when the facts are before us. We avoid questions as to constitutionality of statutes when it is possible to decide a case without deciding them. McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155; Osage Oil & Transportation, Inc. v. City of Fayetteville, 260 Ark. 448, 541 S.W. 2d 922; Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837; Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472. Under our holding in Bell, the majority’s treatment of the constitutionality of the act is ‘ ‘pure dictum. ’ ’ The Bell holding is exceptionally applicable to this case which involves prohibition in a contempt proceeding.

       Once again, I point out that the compiler of statutes has not included this statute in Ark. Stat. Ann. upon the unwarranted assumption that it had been superseded by Ark. Stat. Ann. § 22-349.1 (Repl. 1962). The latter statute pertained only to expenses of judges and had no bearing whatever upon the expenses which were the subject of Pope’s Digest § 2858.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Gloria WILLIAMS v. STATE of Arkansas
    CR 79-163
    593 S.W. 2d 8
    Opinion delivered January 14, 1979

      Spencer, Spencer & Shepherd, for appellant.

      Steve Clark, Atty. Gen., by '.Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, Gloria Williams , was convicted of committing first degree battery upon her ten-month old daughter and sentenced to 10 years imprisonment. It was essentially a case of child abuse.

On appeal she alleges six errors, most of which are without merit and which will be briefly discussed. One error requires reversal.

The first error alleged is a lack of evidence to support the jury’s finding of guilt. At the time of the alleged abuse, Gloria Williams was living with a man named Grady Madison. He was not her husband. She took the child to the doctor on September 12, 1978. The doctor believed that the child had been abused. He called the police. The evidence showed that the child was suffering from severe injuries which included burns, six fractured ribs, two arm fractures and various bruises and contusions about her body. The medical testimony was that the child had suffered from child abuse. Williams denied abusing the child in any way and suggested that perhaps the child had fallen, or as Madison told her, that she had been burned from boiling water. Most of the evidence was circumstantial but there was sufficient evidence to support the jury’s findings that Williams had abused the child. We no longer distinguish between an accessory and the principal, Ark. Stat. Ann. § 41-301, et seq: (Repl. 1977), and there is no doubt that she could not have been around the child without knowing of the injuries. Compare, Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978). Furthermore, there is some evidence that she may have injured the child herself. For example, Madison testified that she grabbed the child up by an arm and a leg on one occasion.

She and Madison were tried jointly. Madison testified that he did not know what caused all the injuries. He said that one time another child had pulled some boiling water off a stove onto the child. Testimony suggesting that the water could not have been pulled off the stove as he explained, was presented to impeach his version of the incident. Therefore, we find the argument that there was insufficient evidence to support the verdict or that a directed verdict should have been granted is without merit.

The appellant and Madison were charged separately but the court ordered the parties to be tried together. The appellant argues individuals who are separately charged by information cannot be jointly tried. We disagree. Rules of Crim. Proc., Rule 23.1 provides for such a trial. It reads:

(a) The court may order consolidation of two (2) or more charges for trial if the offenses, and the defendants if there are more than one (1), could have been joined in a single indictment or information without prejudice to any defendant’s rights to move for severance under preceding provisions.
(b) The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or the prosecution.

That does not mean that parties can be joined in a trial if prejudicial error might result. For example, see Rules of Crim. Proc., Rule 22.3. In this case there was no allegation of prejudice and we find none as a result of the trial.

The appellant argues that she was denied her full quota of peremptory challenges. The court ruled that since the parties were being tried jointly they only had eight peremptory challenges as a pair, not eight each. The court correctly interpreted the law. Ark. Stat. Ann. § 43-1929 (Repl. 1977) reads:

When several defendants are tried together, the challenge of any one of the defendants shall be the challenge of all.

In the case of Hearne v. State, 121 Ark. 460, 181 S.W. 291 (1915), we reached the same result. The Hearne case was upheld in Lewis & Wren v. State, 220 Ark. 914, 251 S.W. 2d 490 (1952). In those cases, unlike this one, the defendants were jointly indicted, but we do not believe this is a significant distinction. Any prejudice would lie in requiring a joint trial that should not be ordered in the first place; if that decision is proper, then no prejudice can result in limiting the peremptory challenges.

. The appellant objected to the introduction of photographs of the infant, some of which were taken after the child was taken to the doctor. There is no doubt that they were graphic evidence of the child’s injuries and were probably not ignored by the jury. But photographs will not be excluded simply because they are gruesome. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). The danger of unfair prejudice created by a photograph must substantially outweigh its probative value before we will exclude it. Gruzen v. State, 267 Ark. (Dec. 17, 1979). The court below correctly applied this rule. These photographs represented portions of the body of the child and the battery of that child was the question in issue. The fact that some of them were made after the child was first examined does not bear on their admissibility if the photographs were properly identified as representing the condition of the child after she had received treatment. Compare, Hughes v. State, 249 Ark. 805, 461 S.W. 2d 940 (1971).

The court committed error when it admitted into evidence a statement allegedly made by the appellant to the doctor.

The appellant’s lawyer filed a motion for discovery prior to trial and requested all statements that might at any time have been made by the appellant to police officers and others. The State responded to the motion without disclosing that the appellant made any statement to Dr. Pullig, in the presence of a policeman, when she took the child to the doctor. Apparently, the night before the trial the prosecutor learned that Dr. Pullig would testify that the appellant told him that if she knew he were going to call the police she would not have taken the child to him. The prosecutor did not promptly notify the appellant’s attorney of this information the next morning but waited until after the lunch break and after the voir dire of all the prospective jurors, and then informed the appellant’s attorney just before the trial started. The appellant’s attorney moved to exclude the evidence as violating Rules of Crim. Proc., Rule 19.2. That rule reads:

If before trial, but subsequent to compliance with these rules, or an order entered pursuant thereto, a party discovers additional material or information comprehended by a previous request to disclose, he shall promptly notify opposing counsel or the other party of the existence of such material or information. If additional material or information is discovered during trial, the party shall notify the court and opposing counsel of the existence of the material or information.

The record indicates that, according to Dr. Pullig, a police officer was present in his office when she made the statement. There is no doubt, then, that the police officer knew of the statement. That knowledge is imputed to the prosecuting attorney. See Arkansas Rules of Criminal Procedure, Rule 17.1. See also Commentary to Article V.

The court must act in such a situation. The evidence must be excluded or a continuance granted. In the case of Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978), we held it was not error if the court granted a recess so that the defendant’s attorney could question the witness. In this case the court gave the appellant no relief.

We are not saying the statement is inadmissible testimony. That is a separate question. The court’s error was its failure to enforce the rule of discovery that imposes upon the State an obligation to timely inform the defendant of all information it has been properly requested to furnish. In this case we do not feel that the information was timely furnished. The judge abused his discretion in admitting the statement and, therefore, we reverse the judgment and order a new trial.

Reversed and remanded.

Stroud and Mays, JJ., not participating.


author: John I. Purtle, Justice.

text:
    Lee Ray OWEN, Executor, et al v. Opal OWEN
    79-287
    592 S.W. 2d 120
    Opinion delivered January 14, 1980
    (In Banc)

      Gary E. Johnson, for appellants.

      Max B. Harrison, for appellee.
   John I. Purtle, Justice.

The will of John F. Owen was admitted to probate on June 11, 1976. His widow subsequently elected to take against the will. May 18, 1978, the probate court assigned dower and homestead rights to the widow and directed certain payments be made to her. Certain properties were ordered sold to satisfy the widow’s claims. May 15, 1979, the court directed the executor to comply with the order of May 18,1978. On June 12,1979, the executor appealed from the order of May 15, 1979.

For reversal appellant claims article 9 § 6 of the Constitution of Arkansas is violative of the Fourteenth Amendment to the Constitution of the United States and further that the following Arkansas statutes are unconstitutional: Ark. Stat. Ann. § 60-501 (Repl. 1971), Ark. Stat. Ann. §§ 61-201, 61-202, 61-203, 61-207, 61-210, 61-228, 61-229 (Repl. 1971), and Ark. Stat. Ann. § 62-2501 (Repl. 1971). The allegation is these statutes are unconstitutional because they arbitrarily discriminate on the basis of gender. We affirm the trial court because a timely appeal was not filed.

The facts reveal John F. Owen executed a will on June 21, 1972, in which he left all his bounty to his wife, Mildred Owen. The will provided, in the event Mildred did not survive him, his bounty would be divided equally between the eight children born to decedent and Mildred. Mildred predeceased the decedent and he married Opal sometime before he died on May 28, 1976. His original will was not revoked during his lifetime. The record as abstracted does not show how long decedent and appellee were married. In any event, his will was admitted to probate on June 11, 1976, at the request of his son, Lee Ray Owen, who had been nominated as executor in the will.

Inventory of the estate was filed on December 7, 1976. The next item abstracted in the record is a memorandum brief filed by appellant on November 8, 1977, in which he alleged the appellee already owned a homestead, left by her former husband. The memorandum also alleged Opal Owen had abandoned the homestead in decedent’s estate. The argument was apparently based upon the provisions of article 9 § 6 of the Constitution of Arkansas. The thrust of the argument contained in the memorandum was that appellee could not claim two homesteads.

November 23, 1977, the court ordered the claimed homestead exonerated from an existing mortgage in view of the solvency of the estate. May 19,1978, the court entered an order pursuant to a final hearing before the court on the petition of Opal Owen for dower and homestead rights in the properties of decedent. This order assigned the widow one-third of all personal properties of the estate and ordered the sale of all real properties, including the selected homestead, and that the widow be paid $2,500 from the proceeds of said sale for the purpose of acquiring another homestead. Also, the order directed payment to the widow of certain sums as her share of rents which had been collected by the estate.

Nothing further appears to have occurred until the order of May 15,1979, wherein the court directed compliance with its former order of May 18, 1978. By this time additional rents had been collected and these were apportioned in accordance with the prior order of the court. The court noted the objections of appellant as to the constitutionality of the dower and homestead statutes. Obviously an appeal was filed although it is not noted in the abstract or brief. The record does not disclose whether the estate has been closed.

Although the appellant makes excellent arguments concerning the constitutionality of certain provisions of the constitution and the laws, we do not reach them because there was no timely appeal. Ark. Stat. Ann. § 62-2016 (Repl. 1971) provides for appeals to the supreme court in matters relating to decedents’ estates:

a.. .
b.. .
c.When an appeal is taken with respect to any appeal-able order in the administration of a decedent’s estate, made prior to the order of final distribution, other than an order admitting or denying the probate of a will or appointing or refusing to appoint a personal representative, the Probate Court or Supreme Court may in its discretion order that the appeal be stayed until the order of final distribution is made and that the appeal be heard only as a part of any appeal which may be taken from the order of final distribution. This subsection shall not apply to guardianships.
d. When an appeal is taken from the order of final distribution in the administration of a decedent’s estate, all prior appealable orders and judgments to which the appellant has filed objections in writing within sixty (60) days after the order of judgment was rendered and from which an appeal has not theretofore been taken, except orders admitting or denying the probate of a will or appointing a personal representative shall, at the election of the appellant, be reviewed. The appellant shall indicate such election by clearly stating in the appeal the orders which he desires to have reviewed.

Section (g) provides that appellate procedures applicable to equity cases will be applied except as stated in the act. The exceptions are those stated above.

The order of May 18,1978, was final as to the dower and homestead rights of appellee and was an appealable order. Ark. Stat. Ann. § 27-2101 (Repl. 1979) and Ark. Stat. Ann. § 62-2016 (Repl. 1971). Boyd v. Bradley, 239 Ark. 120, 388 S.W. 2d 107 (1965); Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967); Smith v. Smith, 235 Ark. 932, 362 S.W. 2d 719 (1962); and Watkins v. Watkins, 242 Ark. 200, 412 S.W. 2d 609 (1967).

Whether the 30 day (Ark. Stat. Ann. § 27-2106.1 (Repl. 1979) ) or 60 day (Ark. Stat. Ann § 62-2016 (Repl. 1971)) time limit for appeal applies is of no consequence because appellant complied with neither. Based upon the record before us we have no choice but to affirm the decree of the court entered herein on May 18, 1978.

Affirmed.

Stroud and Mays, JJ, not participating.


author: PER CURIAM

text:
    James E. SCOTT v. STATE of Arkansas
    CR 79-206
    592 S.W. 2d 122
    January 14, 1980
   PER CURIAM

Petitioner was convicted by a jury of rape on February 24, 1970, and was sentenced to be executed. On December 24, 1970, this sentence was commuted to life imprisonment by the Governor. We affirmed, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404(1971). On June 11, 1976, petitioner filed a petition for permission to proceed in circuit court under Arkansas Criminal Procedure Rule 37 for postconviction relief. We denied his petition for postconviction relief:

Petitioner raises the following grounds for postconviction relief:

(1) racial discrimination was involved in the selection of the jury panel; (2) racial prejudice at the time of the trial mandated a change in venue; (3) weapons obtained by an unreasonable search and seizure were improperly admitted at trial; (4) the jury was erroneously instructed on pardons and paroles; (5) trial counsel was ineffective in failing to adequately investigate and prepare for trial, failing to move for a change of venue, and failing to challenge the racial composition of the jury.

He asks us to waive the portion of Rule 37 which provides that all grounds for relief must be raised in one petition. He contends that the sole point alleged in the previous petition, the racial composition of the jury panel, was raised on appeal in only one sentence and was presented in a general and conclusory manner in the prior petition. He argues that we should find this issue to not have been “finally adjudicated.” He also asserts that although his other grounds were not raised in the previous petition, we should find that these issues were “inadvertantly neglected” by the attorney who drafted that petition. The petition in the present matter was filed by a law student under supervision.

Rule 37.2(b), Rules of Criminal Procedure (1976), states:

All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition. Any grounds not so raised or any grounds finally adjudicated or intelligently and understanding^ waived in the proceedings which resulted in the conviction or sentence or any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence may not be the basis for a subsequent petition.

The first postconviction petition alleged that “black citizens were intentionally and systematically excluded from service on the jury ’ ’ in violation of petitioner’s constitutional rights. This allegation was initially raised on appeal. Since the record was void of any reference of discrimination, we declined to speculate on the racial composition of the jury panel. When the issue was again raised in the first postconviction petition, we found that not only had this point been raised and decided adversely to petitioner on appeal, but that it was still being raised in conclusory terms without supporting facts or evidence. We note that two more of petitioner’s present allegations were addressed on appeal and rejected. Counsel had argued that the trial court should have recognized the racial prejudice and hatred the community was experiencing and ordered a change of venue to insure a fair trial. We refused to speculate since there was nothing in the record to support the allegations. We also considered the circumstances surrounding the search that resulted in the seized weapons and concluded the search was reasonable.

Petitioner’s petition for postconviction relief is denied. Rule 37 clearly provides that a prisoner will not be allowed to file subsequent petitions unless his petition falls within the specified exceptions. This petition does not meet those requirements. Petitioner has had two full opportunities to present his allegations to us. Each time he was represented by counsel. Petitioner has failed to satisfactorily show why his attorney could not have raised the allegations in his first postconviction petition. Thus, we see no need to go behind the rule to allow this subsequent petition because petitioner has failed to clearly demonstrate manifest injustice resulting from his several opportunities for redress.

Furthermore, this petition was not filed within three years from the date of commitment as required by Criminal Procedure Rule 37.2(c). The rationale for the provision is clearly demonstrated in this case since we note that the attorney who represented petitioner at trial and on appeal and the circuit judge who presided at the trial are both dead.

Accordingly, the petition for permission to proceed in circuit court under Criminal Procedure 37 is denied.

Petition denied.


author: George Rose Smith, Justice.

text:
    ST. PAUL INSURANCE COMPANY and AMERICAN BURGER SYSTEMS, INC. v. Deborah TOUZIN
    79-318
    592 S.W. 2d 447
    Opinion delivered January 21, 1980
    (In Banc)

      Laser, Sharp, Haley, Young & Huckaby, P.A., for petitioners.

      O. W. Pete Wiggins, Sr., for respondent.
   George Rose Smith, Justice.

Gordon Bruce Touzin, of North Little Rock, was an employee of American Burger Systems, which had eating places in Pulaski and Hot Spring counties. At about 2:00 a.m. on January 6,1977, Touzin was killed when the company van he was driving at high speed struck a bridge abutment in Saline County and left the highway. The Workers’ Compensation Commission denied this claim for death benefits, finding that Touzin’s intoxication was a substantial cause of his death. The circuit court affirmed. The Court of Appeals reversed, holding that there was no substantial evidence to support the Commission’s finding of intoxication.

On the issue of intoxication the decisive evidence before the Commission was the report of a blood-alcohol test which showed that Touzin’s blood contained more than twice the percentage of alcohol that is presumed to show intoxication. Ark. Stat. Ann§ 75-1031.1 (A)(3)(Repl. 1979). The Court of Appeals held that the insurance carrier had not laid a sufficient foundation for the introduction of the test, by showing that it was taken in compliance with the statute and regulations. §§ 75-1045 and -1046. We granted certiorari to consider the interaction between the statute and the section of the Workers’ Compensation Law which provides that the Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure. Ark. Stat. Ann. § 81-1327 (Repl. 1976).

In harmony with many decisions on the point, we view the evidence in the light most favorable to the Commission’s decision. Touzin left the company’s place of business in Malvern at about five o’clock on the afternoon preceding his death. There is no evidence of his activities between that time and about 12:45 a.m., when he rang the doorbell at the home of Mr. and Mrs. Neil Deimel, who had gone to bed. Mrs. Deimel was the manager of the company’s restaurant in Malvern. Mr. Deimel went to the door and explained that his wife, whom Touzin wanted to see, had retired. Touzin visited with Deimel and left at about 1:30. Deimel testified that there was no indication that Touzin had been drinking. His wife heard the conversation between Touzin and her husband and reached the same conclusion.

The fatal accident occurred on the highway about 20 miles from the Deimel home. Touzin’s vehicle struck the bridge abutment, traveled along the top of the concrete guard rail for some 63 feet, and hurtled through the air to a point beyond the fence bordering the right of way. State Trooper Bailey arrived within a few minutes. He testified that the engine of the vehicle was back in the passenger area and Touzin was lying dead in the rear part of the van. Officer Bailey smelled the odor of alcohol and saw one or two empty beer cans in the van. He wanted a blood-alcohol test and called the county medical examiner, Dr. Kirk, who came to the scene and helped remove the body. At the Saline Memorial Hospital Dr. Kirk withdrew a blood sample from the decedent’s heart and turned it over to a registered nurse who was present. She labeled the sample and later delivered it to Mrs. Rose, a medical technician with 12 years’ experience, who tested the blood sample. All blood tests for law enforcement agencies in Saline county were done at the hospital’s laboratory.

In testing the blood Mrs. Rose put it in a machine that used the enzymatic method, which had been evaluated and approved by the State Health Department in 1970. Mrs. Rose testified that the machine had been approved by that Department. She said that the machine is kept constantly in calibration, by calibrating it every day with controlled products. The chief medical technologist at the hospital also testified that the machine had been approved, but she explained that they did not get formal written approval until some four months later, when the issue was raised as a result of this case. The Commission specifically found that the machine had been certified and approved by the Arkansas State Department of Health.

Dr. Kirk testified that the blood-alcohol reading of .20 percent showed a state of intoxication, indicating the consumption of the equivalent of more than 10 cans of beer. Touzin’s widow, the claimant, testified that her husband drank “a few beers now and then.” She said she had never observed him under the influence of alcohol, but she admitted that when the police telephoned to inform her of the tragedy she asked if alcohol had been involved.

The Court of Appeals, for two reasons, was mistaken in holding that the insurance carrier had not laid a sufficient foundation for the introduction of the results of the blood-alcohol test.

First, the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may “conduct the hearing in a manner as will best ascertain the rights of the parties.” § 81-1327, supra. Professor Larson discusses at length the cases construing such provisions in workers’ compensation statutes. He concludes that the factfinders are expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record. On the other hand, a compensation commission undoubtedly has expertise much superior to that of a jury in the weighing of testmony and should therefore be left to determine the probative value of hearsay testimony and other proof that might not be admissible in a court of law. Larson, Workmen’s Compensation Law, §§ 79.00 and 79.80 — 79.84 (1976). The admissibility of the blood-alcohol test falls in the latter category.

Here the Commission, within the leeway conferred by the compensation law, certainly conducted the hearing in such a manner as to best ascertain the rights of the parties. Only four persons had any part in the blood-alcohol test: Officer Bailey, who ordered it, a licensed physician, a registered nurse, and an experienced technologist whose qualifications were shown. All four testified and were cross examined. The machine had been approved and was constantly kept in proper calibration. The Commission was fully justified in finding that the test results had probative value.

Second, the testimony would have been admissible even under the more strict rules that prevail in a court of law. The statutes regulating blood-alcohol tests are primarily intended for criminal cases, but they are pertinent when such a test is used in civil litigation. Newton v. Clark, 266 Ark. 237, 582 S.W. 2d 955 (1979). Even in criminal cases, however, substantial compliance with the statute and with the Health Department rules is all that is demanded. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975). That degree of compliance was shown in this case.

The Court of Appeals in effect required an affirmative showing of the strictest possible compliance, by emphasizing various negative aspects of the record: The absence of proof that Mrs. Rose had been certified by the Department, or that Officer Bailey had initialed the sample, or that Dr. Kirk had drawn the required amount of blood or taken precautions against its dilution with “pleural or pericardial fluids.” Those details are for the most part not in the statute but in the Department of Health regulation.

Judicial notice may be taken of that regulation, but the proper procedure is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to the regulation. Turnage v. Gibson, 211 Ark. 268, 200 S.W. 2d 92 (1947); Uniform Evidence Rule 201 (d), Ark. Stat. Ann. § 28-1001 (Repl. 1979). Here there was no reference to the regulation during the taking of the testimony; it first appears in a brief filed after the hearing. And even then the deficiencies specified by the Court of Appeals were not mentioned by counsel. It would have been a simple matter, while the witnesses were on the stand, for opposing counsel to ask about each of the deficiencies, had they been thought material. As we have said in a similar situation: “If counsel thought that no proper foundation had been laid, the point should have been brought specifically to the court’s attention. Had that course been followed the omission now complained of might readily have been supplied in the trial court.” Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137 (1958). We find ample substantial evidence to support the Commission’s decision.

Reversed.


author: Frank Holt, Associate Justice.

text:
    HOUSTON GENERAL INSURANCE CO. and HOUSTON FIRE AND CASUALTY CO. v. ARKANSAS LOUISIANA GAS CO.
    79-203
    592 S.W. 2d 445
    Opinion delivered January 21, 1980
    (In Banc)

      Wright, Lindsey & Jennings, for appellants.

      Wayne Boyce and Griffin Smith, for appellee.
   Frank Holt, Associate Justice.

Appellants paid the losses incurred by their insureds as a result of an explosion and fire which allegedly was caused by the negligence of the appellee. Following our reversal in Erwin, Inc. v. Ark. La. Gas Co., 261 Ark. 537, 550 S.W. 2d 174 (1977), appellants were substituted as plaintiffs for the individuals and businesses originally named as plaintiffs. A jury found for the appellee, and on appeal two grounds are urged for reversal.

Appellants first contend that the court erred in refusing to admit the testimony of Kinerd Gates concerning certain statements made to him by Arvil Alvis, an agent of the appellee, about gas leaks in the alley where the explosion and fire occurred. Appellee responds that the testimony was properly excluded because there was no foundation for its admission. The excluded statements were contained in Gates’ deposition which was being read to the jury because he was unable to testify at trial. One of the excluded statements was made four months prior to the explosion at which time Alvis allegedly told Gates and his wife there was “one helluva leak in that alley’’ where the explosion occurred. The other statement was made to Gates in the alley a month or two prior to the explosion there. Alvis allegedly told him that he was “checking for a leak, gas leak.” The court refused to admit the statements on the ground they were hearsay.

We hold that these proffered statements are not hearsay. They fall within the definition of an admission of a party opponent as set forth in Ark. Stat. Ann. § 28-1001, Rule 801 (d) (2) (iv) (Repl. 1979), which provides:

(d) A statement is not hearsay if: . . . (2) Admission of a party opponent. The statement is offered against a party and is . . . (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . .

The range of statements admissible under the agency standard was broadened considerably by this rule which is a verbatim adoption of the Federal Rules of Evidence, rule 801 (d) (2) (D), 28 U.S.C.A. “Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.” Weinstein’s Evidence § 801 (d) (2) (D) [01], p. 162. See also Mahlandt v. Wild Canid Survival, Etc., 588 F. 2d 626 (8th Cir. 1978); Process Control v. Tullahoma Hot Mix Paving Co., 79 F.R.D. 223 (E.D. Tenn. 1977); and Pino v. Protection Maritime Ins. Co., Ltd., 599 F. 2d 10 (1st Cir. 1979). The rule insures the trustworthiness and reliability of the admission by providing that such statements are admissible only if made during the existence of the relationship. An employee is unlikely to jeopardize his job by making false statements which are costly to his employer. Weinstein’s, supra.

Here in response to appellee’s objection as to hearsay, appellants’ attorney stated that he understood the proof would be that when Alvis made the statement he was an employee of Arkla engaged in responding to leak complaints and making repairs on gas lines. The proffer was sufficient to establish that the statements were made during the existence of the relationship and related to a matter within the scope of the employment. In view of this proffer, the court erred in refusing to admit these statements. Neither can we agree with appellee’s argument that the evidence, identical to the proffered evidence, was later elicited by appellants from Alvis.

We are also of the view that the court erred in permitting the local fire chief to testify concerning his investigation as to the cause of several other explosions and fires which had occurred in the vicinity a few months before and after the explosion and fire causing the damages here. Evidence of similar occurrences is admissible only when it is demonstrated that the events arose out of the same or substantially similar circumstances. The burden rests on the party offering such evidence to prove the necessary similarity of conditions exists. Arkansas Power and Light Co. v. Johnson, 260 Ark. 237, 538 S.W. 2d 541 (1976). See also Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971). Here appellee offered no evidence that the conditions surrounding the other fires, including one fire ascertained as being caused by arson, were similar to the fire involved in this case.

Consequently, the evidence as presented is not relevant to the cause of this particular fire. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979). Neither do we agree with appellee’s argument that the appellants, by cross-examining appellee’s witness, had “open[ed] up” the issue thereby justifying the local fire chiefs testimony.

Reversed and remanded.

Stroud & Mays, JJ, not participating.


author: Per Curiam.

text:
    Homer Lloyd MOORE v. STATE of Arkansas
    CR 79-227
    592 S.W. 2d 450
    Opinion delivered January 21, 1980

      Vincent E. Skillman, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

The appellant, Homer Lloyd Moore, through his attorney, has filed a motion for rule on the clerk.

The Clerk of this Court properly refused to accept the tendered record in this case because it was not tendered timely.

The judgment was entered April 3, 1979. A motion was filed on May 22, 1979, to extend the time for filing the transcript. The trial judge signed the order extending the time until December 26, 1979.

When the record was tendered more than seven months had elapsed from the date of the judgment.

In an affidavit attached to the motion, Vincent E. Skillman, Jr., the attorney for the appellant, stated, “That the time computed was incorrect not due to any fault of the said Homer Lloyd Moore, or anyone else to my knowledge.”

We have recognized that sometimes an appeal must be accepted where to do otherwise would be a denial of a constitutional right; that is, the right to effective assistance of counsel.

In Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978), we recognized this principle. Subsequent to Harkness in the per curiam opinion, Regarding Belated Appeals in criminal cases, dated February 5, 1979, we adopted a policy of publishing a per curiam order when we had to grant an appeal because counsel for no good cause tendered an out-of-time transcript.

In civil cases, an appeal will be granted if a record is tendered beyond a legally authorized date only if there is unavoidable casualty. In criminal cases, the rule is that we will do so only if there is an affidavit showing a “good reason.” Rules of Crim. Proc., Rule 36.9.

None of these rules or decisions apply to the problem before us.

The affiant lawyer in this case does not cite good reasons, nor really any reason for not timely tendering the record. It is the duty and responsibility of counsel for an appellant to see that the record is timely filed. In effect, counsel for the appellant says it was not the fault of anyone. For that reason we deny the petition for a rule on the clerk.

We do not hold that we will deny a belated appeal if good reason is shown.