author: Sam Bobinson, Associate Justice.

text:
    American Ins. Co. v. Robertson.
    5-3586
    389 S. W. 2d 880
    Opinion delivered May 17, 1965.

      Griffin Smith, for appellant.

      Martin, Dodds & Kidd, for appellee.
   Sam Bobinson, Associate Justice.

In May, 1961, appellee, Lillian B. Bobertson, and her husband, purchased' a house and lot from A. E. Hudspeth and his wife, Velma Hudspeth. Waldrop Bealty Company acted as agent for the sellers. On October 22, 1961, appellee’s husband died. Harold W. Strangways, who was connected with Waldrop Bealty Company as manager, induced Mrs. Bobertson to reconvey the property to the Hudspeths, promising that on execution and delivery of the deed he would pay to her the sum of $1,000. On November 28, 1961, Mrs. Bobertson executed the deed and delivered it to Strangways. He did not pay her the $1,000 as promised.

Later, in an attempt to collect the $1,000, Mrs. Bobertson filed this suit naming as defendants Waldrop Bealty Company, Inc., Harold Strangways, and American Insurance Company, the surety on Strangways statutory bond. A jury was waived and the matter was tried before the court. There was a judgment for $1,000 in favor of Mrs. Bobertson against all three defendants. Only the American Insurance Company has appealed.

Appellant’s sole contention is that its principal, Harold Strangways, was acting only as an agent of Waldrop Realty Company in dealing with Mrs. Robertson, and therefore, there is no personal liability on the part of Strangways and hence, none on the part of the surety.

According to the undisputed evidence, Strangways was a real estate broker. The appellant insurance company made the bond for Stephen L. Waldrop, Jr. and Harold W. Strangways, doing business as Waldrop Realty Company. There is substantial evidence that Strangways was acting in his capacity as a broker when he made the deal with Mrs. Robertson. The surety on his bond became liable thereon when he violated the provisions of Ark. Stat. Ann. § 71-1307 (Repl. 1957) by making a false promise to induce Mrs. Robertson to execute and deliver a deed to the property.

One of the purposes of the statute requiring real estate brokers to make a bond is to protect the public against the very kind of thing that occurred here. If the broker and his surety can avoid liability by hiding behind the skirts of a corporation, the bond would be useless and the statute would have no force and effect whatever.

Mrs. Lucille Hicks testified that she was working for the Waldrop Realty Company at the time of the transaction with Mrs. Robertson, and it was her understanding- that Strangways was a partner with Steve Waldrop; that Strangways promised Mrs. Robertson $1,000 upon the execution of the deed, but when Mrs. Robertson signed it he stated he would first have to look it over before paying her the money; that he would pay her as soon as he returned from a home builders convention in Chicago, but he never did return; that Strangways was the broker she worked under. “I worked under Mr. Strangways. As a matter of fact, Mr. Strangways sponsored my license when I passed the State Board examination. ’ ’

Mrs. Hicks further testified on cross-examination: Q: You knew this deal was a corporation deal? A: I did not know this deal was a corporation deal. "When I was sent out there to Mrs. Robertson’s I was sent there by-Mr. Harold Strangways and I told her just exactly what he sent me there to tell her.

Mrs. Robertson testified she made the deal with Strangways — no one else.

Affirmed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Roesler v. Denton.
    5-3562
    390 S. W. 2d 98
    Opinion delivered May 17, 1965.
    [Rehearing denied June 7,1965.]

      H. Clay Robinson and Hardin, Barton, Hardin & Jesson, for appellant.

      Don Gillaspie and Mark E. Woolsey, for appellee.
   Jim Johnson, Associate Justice.

This suit concerns damage to real property.

Appellants Roseler own residential property in Fort Smith, bounded on the north by Park Avenue; and on the east by a natural drainage course which ran under Park Avenue through a culvert, and over as well as under Park Avenue during heavy rains. As a part of the local highway program, this section of Park Avenue was included in what is called the Fort Smith Spur. The level of Park Avenue was raised ádjacent to appellants’ property and after the highway construction ivas completed, appellants discovered that the new culvert was inadequate to carry off excessive rainfall, resulting in flooding of their land. Appellants filed suit in Sebastian Chancery Court against appellees, members of the State Highway Commission, the Highway Director, the resident highway engineer and the highway contractors, seeking to require rebuilding of this section of the highway so as to restore the natural water courses and surface water drainage to its condition prior to said construction,. and then amended their complaint for damages for the permanent injury to their property.

We are Avell aAvare that “the right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated, or damaged by public use, Avithout just compensation therefor” (Ark. Const. Art. II, § 22) and have in the past Avrestled with the particular problem here involved. We are perforce equally cognizant of Article 5, § 20, “The State of Arkansas shall never be made defendant in any of her courts.” Were it not for the administrative relief available to claimants such as appellants through the State Claims Commission, Article 5, § 20 might Avell be considered to be violative of due process. However, the questions here raised have been thoroughly discussed in Bryant v. Ark. State Highway Commission, 233 Ark. 41, 342 S. W. 2d 415, as follows:

“The chancellor was right in sustaining the demurrer, for the present proceeding falls within the constitutional prohibition of suits against the State.. The controlling language of the constitution is mandatory: ‘ The State of Arkansas shall never be made defendant in any of her courts.’ Ark. Const., Art. 5, § 20. Since the decision in Ark. State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, it has been settled that the Highway Commission cannot be sued, and this immunity cannot be waived even by the legislature.
The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first- been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S. W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S. W. 2d 1061.
“The case at bar falls within the latter principle, for the asserted injury to the landowners had already occurred when their suit was filed. Nevertheless counsel seek to distinguish the prior cases by arguing that these appellants did not stand by and permit their property to be damaged, since it is contended that the Commission closed the exits so quickly that there was no time for an injunction to be sought. This argument misconceives the basis for the Commission’s immunity to suit after the taking or damages has occurred. The landowner’s inability to recover damages does not rest upon the doctrine of laches, in that he has slept upon his rights. Bather, the underlying reason for the court’s holding is simply a recognition of the fact that an action to compel the State to redress a past injury would unquestionably constitute a suit against the State. Such a proceeding is plainly forbidden by the constitution.
“It is also insisted that the appellants have a constitutional right to maintain the present suit. Counsel rely upon § 13 of Article 2 of the constitution, which provides that every person is entitled to a certain remedy for injuries to his property, and upon § 22 of Article 2, which declares that the right of property is higher than any constitutional sanction and that private property shall not be taken or damaged for public use without just compensation. It is contended in substance that the State’s immunity from suit is in conflict with these constitutional clauses and that the latter can be given effect only by permitting the present proceeding to be maintained.
“This argument must be rejected. The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. The appellants’ argument, carried to its logical end, would completely destroy the State immunity from suit, for it could be argued in every case that to exempt the State from a coercive proceeding would be to deny the plaintiff a certain remedy for an injury he had supposedly suffered.
. . . “We must conclude that this proceeding falls within the constitutional inhibition against suits against the State. If appellants have a right to compensation — a point upon which we need not express an opinion — they are limited, as we said in the Part am case, supra, to filing an administrative claim for such relief as the State may see fit to provide.”

It follows, therefore, that as to the highway commissioners and employees, the demurrer was properly sustained as a suit against the State, and in the absence of an allegation that the contractors negligently failed to perforin in accordance with their contracts with the State Highway Department, the demurrer was properly sustained as to them. 'See Southeast Construction Co., Inc., v. Ellis, 233 Ark. 72, 342 S. W. 2d 485; Ben M. Hogan Co. v. Fletcher, 236 Ark. 951, 370 S. W. 2d 801.

Affirmed.

Robinson, J., not participating.


author: Frank Holt, Associate Justice. Paul Ward, Associate Justice

text:
    Cheney, Commissioner v. Frederick.
    5-3564
    390 S. W. 2d 121
    Opinion delivered May 17, 1965.
    [Rehearing- denied September 20,1965.]

      Lyle Williams, for appellant.

      Tom Gentry, for appellee.
   Frank Holt, Associate Justice.

This is an appeal by the Commissioner of Revenues of the State of Arkansas from an adverse decree of the Pulaski Chancery Court holding that a house trailer was not subject to the gross receipts tax claimed to be due to the State.

The parties stipulated that appellees purchased a house trailer ou July 3, 1958 from a dealer, the Twin City Mobile Homes Company of North Little Rock, Arkansas, and since that date have used it for a home in such a manner as not to require licensing under the laws of the State of Arkansas; that no license has ever been issued; that the appellees did not report the purchase to the Commissioner and no gross receipts tax has ever been paid on the purchase by the appellees. It appears that the appellant had no knowledge of the sale until on or about October 28, 1963 when an auditor of the State Revenue Department made an assessment of the tax due. The appellees were given notice of the assessment of $207.49 and the intention of the Commissioner to file a Certificate of Indebtedness if the appellees did not pay the tax or request a hearing within the time allowed by law. When the appellees did neither, the Certificate of Indebtedness was filed against them on May 13, 1964 in the Circuit Court of Pulaski County.

A few days later, appellees filed in Pulaski Chancery Court their petition requesting a temporary injunction to restrain the appellant from proceeding to collect the tax from them by enforcing the Certificate of Indebtedness. Appellees denied any liability for the tax contending that under the provisions of Ark. Stat. Ann. §84-1903 (Repl. 1960) the Gross Receipts Tax does not apply to a trailer which is not required to be licensed and, further, even if such tax were due and payable at the time of the sale the appellant was barred from collecting the tax by the Statute of Limitations. Ark. Stat. Ann. §84-1910 (a). The Chancery Court upheld the appellees on both of their contentions and from the decree making the injunction permanent this appeal arises.

For reversal appellant relies upon Ark. Stat. Ann. §84-1903 (a) which levies a 3% sales tax upon all sales of “tangible personal property”. Appellant ably and strenuously contends that the Act specifically provides that the gross receipts tax applies to the “sale” of a house trailer not requiring a license since it is tangible personal property. Even so, the Act makes the seller and not the purchaser, the consumer, liable to appellant for the tax. The seller is the tax collector in the sale of tangible personal property. This burden of collecting, reporting and remitting the sales tax was held by us to be reasonable and practical in the case of Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91. The rationale behind the legislative requirement that the seller is liable for the collection of the sales tax is well expressed in Arkansas Power & Light Co. v. Roth, 193 Ark. 1015, 104 S. W. 2d 207: ‘ ‘ The enforcement of the law would be impracticable if the Commissioner were required to collect from the consumer, for obvious reasons.”

In reviewing this statute we find no provision authorizing the appellant to proceed against the consumer, as in the case at bar, by issuing and enforcing a Certificate of Indebtedness against him for his failure to pay the sales tax. Certainly, it would be impractical and unreasonable to expect the consumer, the buying public, to know when a sales tax is owed and, if so, to whom it should be paid. Under the clear provisions of the statute the onus of collecting the gross receipts sales tax has been placed upon the seller except and only when the article sold is required to be licensed, in which event the consumer is required to pay the tax to the Commissioner before a license can be issued. It is admitted that the trailer in question was not required to be licensed since it was not used upon our highways. Thus, there was no duty upon the appellees, as buyers, to pay the appellant the claimed tax. In connection with the payment of the tax, attention is directed to Act 146 of 1965.

Having determined the appellees are not liable to appellant in the instant case, it becomes unnecessary for us to reach a discussion of the application of the Statute of Limitation.

. Affirmed.

Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). For reasons hereafter set out this case, in my opinion, should be reversed.

The majority, in affirming, appear to rely on two points or conclusions, neither of which, in my opinion, is sound. Both are presently discussed.

(a) The majority state: “. . . the Act [Act 386 of 1941 — Ark. Stat. Ann. § 84-1903 (Kepi. I960)] makes the seller and not the purchaser, the consumer, liable to appellant for the tax”. I agree that, in the case of merchandise sold in stores (and in other instances) the above statement of the rule is correct, but the majority fail to point out an exception to the above rule. In a sub-paragraph to said § 84-1903 it is plainly stated that in the case of new and used cars the tax ‘ ‘ shall be paid to the Commissioner of Revenues”. That being true, what about trailers? Is it not logical to suppose that anyone who purchases a trailer would also be required to pay the tax to the commissioner? However, we are not left to supposition. In the same section it says the provisions of the section (about paying to the commissioner) applies to trailers. The majority, I am sure, would readily agree that if the purchaser of a trailer intended to use it on the road he would be required by the section in question to report to the commissioner and pay not only the 3% tax but also pay for a license for the trailer. But, if the purchaser reports to the commissioner and convinces him the trailer would never be used on the road, no license would be payable although the 3% tax would be payable. Any other interpretation of the Act would lead to a ridiculous situation — that is, it would allow the appellees themselves in this case to decide (without reporting to the commissioner or anyone else) whether (a) they owed the 3% tax and (b) whether the trailer would be used on the road or used as a home.

To me it is clear from § 84-1903 that appellees owe the 3% tax even though the trailer was not to be used on the road. The trailer admittedly is personal property and taxable under § 84-1903 (a). If it is not taxable in this case it must be because it is exempted under § 84-1.903 (e). However, if there is any doubt about the exemption it must be resolved against appellees. See: Morley, Commissioner of Revenues v. E. E. Barber Con struction Co., 220 Ark. 485, 248 S. W. 2d 689. That opinion, at page 491 of the Arkansas Reports, quoted, with approval, the following: “ . . TVe must apply the familiar rules that an exemption from taxation must be strictly construed and to doubt is to deny the exemption’ ”. In the case of Scurlock, Commissioner of Revenues v. Henderson, 223 Ark. 727, 268 S. W. 2d 619, this Court had this same question before it and at page 730 of the Arkansas Reports again quoted, with approval, this language:

“. . . every reasonable intendment must be made that it was not the design to surrender the power of taxation, or to exempt any property from its due proportion of the burden of taxation”.

To ask the following question is, it seems to me, to answer it in the negative: Can it logically and sensibly be said that the legislature (in said Act 386) meant to tax the sale of every conceivable kind of personal property (including the various services enumerated in § 3) but did not intend to tax the sale of a trailer?

TVe agree with the cases cited by the majority holding the legislature had the right to require the seller (retailer) to collect the sales tax. This, however, in no way means the legislature did not also have the right (as-it did regarding sales of automobiles) to require the consumer (or purchaser) to pay the tax to the Commissioner of Revenues. Therefore the cases referred to have no bearing on the issue here involved.

The majority also call attention to Act 146 of 1965, but I fail to see how that Act has any significance in this case. Section 1 provides that persons selling trailers must obtain a permit; § 2 makes the tax apply to used trailers unless the tax has already been paid; § 3 requires the dealer to provide bond; § 4 provides how a dealer may lose his permit; § 5 fixes the effective date of the Act; § 6 repeals all conflicting laws; and, § 7 is the emergency clause.

My purpose in setting out fully the provisions of the 1965 Act was to confirm and emphasize my contentions in this case. 'Section 2 of said Act makes it plain that the sales of used trailers are subject to the tax. Surely no one would contend that the legislature intended (by Acts 386 of 1941 and 146 of 1965) to place a tax on the sale of used trailers and not on new trailers. To my mind the legislature (by the passage of the 1965 Act) makes it clear it meant (by Act 386) to levy a tax on the sale of new trailers.

Since it is my opinion that it was the duty of appellees to report their purchase of the trailer to appellant, they cannot now take advantage of their own dereliction to avoid payment of the tax.


author: Prank Holt, Associate Justice.

text:
    Poindexter v. Cole.
    5-3588
    389 S. W. 2d 869
    Opinion delivered May 17, 1965.

      Lester E. Dole, Jr., for appellant.

      Gaughan & Laney, for appellee.
   Prank Holt, Associate Justice.

This litigation involves approximately one-eighth of an acre of unimproved rural land. The appellants filed a petition for an affirmative injunction seeking to compel the appellee to remove from this land a fence that he had allegedly erected upon the lands. The appellants also sought recovery for damages caused by appellee’s trespass. Appellants claimed ownership by virtue of legal conveyance and adverse possession. The chancellor found “that the plaintiff [appellants] has title to a tract in his possession by reason of adverse possession, but the Court cannot enter a legal description as to the lands involved.” The chancellor decreed that appellants had title to the land but did not order removal of the fence nor make an award of damages.

On appeal appellants contend for reversal that the chancellor should have awarded damages and ordered appellee to remove the fence. A careful review of appellants ’ evidence reflects that no legal description of the disputed property was ever established by a metes and bounds description or by the existence of a recorded plat.

As to the plat relied upon by appellants, the circuit clerk and recorder of Ouachita County testified that she .searched the records for a plat called McCluskey Addition to the Town of Ogemaw and found no record of such a plat. Appellants ’ brief includes a diagram of the property in question, however, the sketch was never introduced into evidence nor made an exhibit to any of the testimony. Therefore, we cannot consider it on appeal. The burden was upon the appellants to demonstrate to us that the trial court was in error. This they have not done. Certainly we cannot say that the chancellor’s finding that no legal description was established is against the preponderance of the evidence. As to damages, the appellants’ proof is also deficient because it is speculative. .

Since we affirm, it becomes unnecessary for us to consider appellee’s contention that appellants failed to “seasonably file and docket the appeal”. The decree is affirmed without prejudice to the right of appellants in any further proceedings in this cause to establish by competent proof the boundary lines of the property in dispute by a legal description.

Affirmed and remanded.


author: Carleton Harris, Chief Justice. Sam Robinson, Associate Justice

text:
    Gent v. State.
    5-3529
    393 S. W. 2d 219
    Opinion delivered May 24, 1965.
    [Rehearing- denied September É0,1965.]

      Robert G. Downie, Edwin E. Dunaway, Gregory & Glaycomb, for appellant.

      Bruce Bennett, Attorney General, By: William L. Patton, Jr., Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

This appeal is from a Decree of the Jefferson Chancery Court, holding that certain magazines were obscene. The court enjoined the appellants from sending, bringing, or causing to be brought, into Jefferson County for sale, exhibit, or gift, any of these magazines, and ordered them destroyed. Jurisdiction was retained to determine whether any future issues are obscene, and appellants were .“notified that any future distribution of obscene publications, as set out, and found above, to be obscene, will also be restrained and enjoined and magazines will be removed.” Included in the injunction were W. E. Burnham, Jr., county distributor of the magazines, and John Nickell, operator of a newsstand, which sold the magazines. The particular publications held to be obscene were Swank, Gent, Modern Man, Bachelor, Calvalcade, Gentleman, Ace, and Sir.

The case arose upon complaint of the Prosecuting Attorney that the magazines were obscene, and in violation of Act 261 of the General Assembly of 1961 (Ark. Stat. Ann. § 41-2713-2728 [Repl. 1964]). The Chancellor impaneled, on motion of the state, an advisory jury, which, at the conclusion of an extended trial, unanimously found all magazines listed to be obscene. The court also found the magazines to be obscene, and issued its injunction. Prom the decree so entered, appellants bring this appeal.

One preliminary matter needs to be disposed of. The court refused to permit Gent to file an answer, holding that the answer had not been tendered in time, and the judgment, as to this publication, was taken by default. We think the court erred. General counsel for the publication of Gent, in New York, wired the court on March 11, 1964, asking for a continuance, for the purpose of obtaining a suitable counsel. The Chancellor replied by letter, acknowledging the telegram, and stating, “The cause was continued yesterday to be heard April 28, at 9:30 A..M. ’ ’ Local counsel was subsequently retained, and tendered a response on April 24. We think the Chancellor’s reply, which neither denied the request, nor indicated that the court had no authority to grant same, could well have been taken by New York counsel to mean that Gent had until April 28 to file an answer. Accordingly, appellant’s request that it be made a party to this appeal, and that its argument on the merits of the appeal be considered by this court, is granted.

For reversal, seven alleged errors are asserted; however, some of these errors relate to the selection of, and instructions given to, the jury. Error is also asserted because of the court’s refusal to admit into evidence other magazines and articles, as a matter of .comparison, and the refusal to permit counsel to inquire from the state’s witnesses whether they considered these other publication’s obscene. However, during oral argument before this court, counsel for all appellants requested that we make a determination on the merits, i.e., that we decide whether the magazines are obscene, rather than remand the case because of error committed during the trial. We therefore, do not consider the alleged errors heretofore mentioned. Suffice it to say that we agree that procedural error was committed, but in compliance with appellants’ request, we disregard legal mistakes committed in selecting and instructing the jury, and proceed to a discussion of the principal issue. In doing so, we enter into a field marked and characterized by uncertainty. In fact, we know of no area of the law in which there is more confusion, and the most recent opinion handed down by the nation’s highest court, rather than contributing to clarity, has actually compounded the confusion.

In 1957, the United States Supreme Court decided the case of Roth v. United States, 354 U. S. 476. After holding that obscenity is not within the area of constitutionally protected speech or press, the court stated:

“The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR, 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: tohether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material'legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity. ’ ’

Following this decision, a number of states, through their legislatures, adopted the italicized standard. In 1961, -the Arkansas General Assembly passed Act 261, which defines the word, ‘ ‘ obscene, ’ ’ in the exact language set forth in the Roth case.

Appellants, for reversal, rely upon the more recent case of Jacobellis v. Ohio, 378 U. S. 184, and assert that this case makes clear that the “contemporary community standards,” mentioned in Roth, actually refers to a “national” community, rather than a “local” community. Appellants vigorously argue that Jacobellis determined conclusively that the “national community standard” must be applied. We cannot accept this contention, since it does not appear that five judges, constituting a majority of the court, agreed upon the ‘ ‘ national community ’ ’ standard. The case was decided by a six to three vote, in which the lower court was reversed. There was no court opinion. Mr. Justice Brennan announced the decision, and wrote an opinion. Mr. Justice Goldberg-concurred in Mr. Justice Brennan’s opinion, but also filed a separate opinion of his own. Justices Douglas, Black, and Stewart concurred in the judgment of reversal, the first two on the basis that the Constitution does not permit censorship at all, and Mr. Justice Stewart, in a separate opinion, stating that the constitution only permits censorship- of “hard core pornography;” further, “I shall not today attempt further to define the kinds of material I understand to be embraced within that short-hand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. ’ ’ Mr. Justice White concurred in the judgment for reversal, without expressing a reason. The Chief Justice, joined by Justice Clark, in a dissenting opinion, rejected the national standard, which Justices Brennan and Goldberg stated the court must apply. Mr. Justice Harlan likewise dissented, saying:

“* * * more j see 0f these obsenity cases the more convinced I become that in permitting the States wide, but not federally unrestricted, scope in this field, while holding the Federal Government with a tight’ rein, lies the best promise for achieving a sensible accommodation between the public interest sought to be served by obscenity laws and protection of genuine rights of free expression. * * *”

Thus, it appears that only two justices of the prevailing six adopted the national community standard. It is therefore evident that a majority of the court, whatever may be the thinking, have not flatly said that the national standard must be applied. Much has been written about the Jacobellis case, and we think one of the most comprehensive articles (or notes) appears in 40 Notre Dame Law., P. 1 (Dec. 1964) The article states:

“According to the opinion of Mr. Justice Brennan in Jacobellis v. Ohio, the Supreme Court itself must weigh and decide the issues in obscenity cases; it must decide whether the disputed material is obscene; and it must decide this according to the standards of the community, that is, the whole country — all 50 States. In other words, the Court must apply a national standard. This note is addressed primarily to that opinion.”

After pointing out that, though critical, the writers intend nothing derogatory toward the court or its individual members, it is further stated:

‘ (Indeed, it is precisely because of our respect that we venture to suggest what seems to promise a way out of the total confusion which envelopes the problem of obscenity as a result of the opinions in some recent Supreme Court eases and the entire absence of opinion in others. ’ ’

The article then notes 'that Justice Brennan sets out in his opinion that the Supreme Court must ultimately decide when a particular work is obscene, and the article poses the question of the logic of the court itself deciding obscenity cases when it does not decide for itself matters of equal or greater importance; for instance, whether a convicted murderer, when firing a fatal shot, was capable of distinguishing right from wrong, or was under a compulsion so strong that he was without power to resist it. These matters, of course, are determined by a jury. It is the opinion of the writers of the article that the Supreme Court, in deciding that it is the duty of the court to make its own independent decision of the issues in obscenity cases, has committed itself to an impossible task.

“Not only has the Court assumed an impossible task, that is, to make its own independent decision of the issues in obscenity cases, but, in so doing, if the opinion of Mr. Justice Brennan is followed, it must apply an absolutely impossible test, that is, the standard in such matters of the Nation as a whole.
“As a matter of fact there is no national community standard. Large cities are much more permissive, by and large, than smaller towns and farming areas, and standards vary not only according to the size of the community but according to geographical location as well. • * * '
“ * * * And to go back to population, the standard varies from one large city to another. Thus, it appears that practices are permitted in the Nation’s capital which are'not tolerated in New York or Chicago.
“Further examples of the fact that standards vary from one community to another come readily to mind. Consider, for instance, the State of Nevada where gambling is legalized; where prostitution flourishes openly; and where divorce is easier to obtain than almost any other place in the present-day world. Are the morals and mores of that State no different from the morals and mores of, say, New England? * * *
“Confronted, as it is, by conflicting standards, lax in one community, strict in another, what is the Court to do? If it succeeded in imposing the standard of, say Washington, D. C., or of Reno, on the rest of the Country, it would be imposing a standard which is repugnant to perhaps a majority of the people of the Nation, particularly in the smaller towns and rural areas. And, of course, the reverse would be equally true.
“Even as regards the big cities, there is no ‘community standard.’ There- are many and conflicting standards; and our legal institutions provide judges no mechanism for ascertaining what they are, sorting them out and selecting one as controlling. The inevitable effect of this is that each member of the Court will apply his own standard. But that is historically the role and function of the jury. The jury is the mechanism provided by the common law for determination of questions involving the presence or absence of due care, reasonableness, prudence, decency and other concepts reflecting the common sense and/or conscience of a community. And the jury can do it better than the members of our highest tribunal. But, of course, the jury could not and would not reflect a national standard, because such a standard is a fiction pure and simple. ’ ’

Summarizing the views expressed in the several Jacobellis opinions, it is obvious that the court, in the final analysis, determines obscenity cases de novo, but the standard applied is not so readily apparent.

The stories and pictures in the eight magazines in question, in the main, deal with the theme of sex. The pictures generally portray side or back views of young-females, totally unclad, or front views of the girls, unclad from the waist up. A large number of the stories, or articles, deal with adultery or fornication, the number varying in the several magazines. In fact, all can be classified under the general term, “girlie” magazines. A few examples of the type of stories, or articles, found will illustrate the general theme. For instance, the following is an excerpt from a story in Ace, entitled, £ £ On the Level:”

“The -window was open.
“I tugged at the shade and it snapped up with a swish, and there I was gazing at the two most perfect breasts in creation. Pull they were, and round and firm, and by any criterion, utterly fantastic. She was powdering them with a fluffy pink puff, and as the shade flew up she paused in mid-puff. * * *
“She was lovely, but there was something wrong in the way she looked, in the lilt of her head,'in the raven shimmer of her lustrous black hair, in the feline greeness of her eyes. And then I knew what it was — she was on her feet.
“Just as Goya’s nudes would look ludricous standing up, and Botticelli’s undraped beauties would look foolish except lying down, so this chick was made for the horizontal; and while she was great standing upright, I knew that on her back she’d be sensational. * ’* *
“We reacted to one another as if we were oppositely magnetized. My mouth was on her lips — moist, full, red lips. I’ve a thing for lower lips. The chick can be a dog, as long as the lower lip is a full, soft one.
“She intertwined herself about me, nudely white from cascading raven hair to scarlet toenails, and the sensation was not of this world. I could feel the sleek perfection of her body through my clothes, her ruby-tipped breasts pushing against me impatiently. I felt her soft arms around me, under my arm-pits, as she hooked her exquisitely manicured hands at my shoulders, thrusting her dancer’s belly toward me.
“And I suddenly realized that we were standing by the open window. Not only could we be seen in sharp relief against the white apartment walls by everyone in neighboring apartments, but my colleague, a fellow student, might come looking for me any moment. I pried loose, and the chick let go with low moans that set my hair climbing. I’d been right. She was the type that digs. What might have been foolish prematurity had turned out to be telling perception. She was a chick who thought ‘horizontally.’ * * *
‘‘ * * What it was with her, I couldn’t quite pin down, but she never made love in the dark, and always with the blinds up — and once while there was a girl friend in the living-room. It got to be a bit embarrassing. But she Avas a cool sketch, and she knew hoAV to use that horizontal body of hers — so well. I didn’t really give a damn.”

In Bachelor, a particularly obnoxious (to us) article appears, entitled “Those Free-Loving Coeds — Why Every Man Should Go To College.” The opening paragraphs of this article (giving some idea of the nature of the remainder of the story) are as folloAvs:

“If you’re a young man with plenty of initiative, zip and get-up-and-go, • the place to be right now is in college. Just think of all the advantages. I don’t mean the ordinary ones of being exposed to the great minds of science and the arts, learning from brilliant instructors and preparing yourself for a career. The advantages I’m talking about are even more important and have to do AArith meeting the most willing group of coeds ever to invade the campus scene.
“The fact is, today’s crop of college girls are not only loving more — -but they are more lovable, too. And it all goes to give Joe College fonder memories of his Alma Mater to take Avith him when he graduates.
“Only recently, for example, an anonymous senior from a large coed university in the middle-West Avas asked by an intervieAver AAdiy his school had so few panty-raids in comparison Avith some of the all-male Eastern schools.
“The senior grinned. “Why should AATe have panty raids here?’ he asked. ‘They are all right for guys Avho can’t get enough of the real thing. The girls in this school, though, keep us perfectly happy and content.’ ”

Again, in Ace, the story, “39 Inches of Femme Fa-tale, ’ ’ commmences as follows:

“ ‘You are a bitch!’ Louise said.
“ ‘Yes, aren’t I?’ Carla Sanders laughed indulgently. ‘And right here is 39 uptilted inches of bitchiness that I intend to make pay off.’ Insultingly she cupped her hands under her breasts.”

Prom Cavalcade, “The Wrong Chimney:”

“ ‘Shh, ’ she murmured.
“She lifted his hand to cup her full breast, and turned a bit, her eyes closed, lifting her face to kiss him on the mouth, her rich lips parted. His hand felt her warm softness and moved of itself, amorously, his other hand automatically reached behind her, caressing, his mouth felt her warm lips and the tip of a tongue going into his, darting, exploring.
‘ ‘ She drew her face back a little, breathing fast, her eyes still-closed. He looked at the lovely features he’d dreamed of so often looking just this way, with the same eager,' surrendering expression, and reached for her again.
“ ‘You were late,’ she said softly. ‘I was afraid . . . Don . .
“She stopped talking as her mouth again met his. Then it penetrated . . . Don, she’d said. He started to draw back but he couldn’t, he wanted her too much. He raised his hand a little to the back of her proud lovely neck and kept her mouth pressed to him. Then he thought . . . polite . . . proper . . . courteous ... an officer and a gentleman, and pulled his seeking lips from her eager mouth.
“ ‘Hurry,’ she said, her eyes still closed. ‘We only have a few minutes.’ ”

We recognize that articles, or stories (and pictures) dealing with sex are not necessarily obscene. The material only becomes obscene when it deals with sex in a manner appealing to prurient interest. Of course, there are frequently pictures or drawings in health and art magazines, which might be said to deal with sex, but such magazines would not be considered obscene, because their dominant theme relates to health or art. In Lock-tart and McClure, ‘ ‘ Censorship of Obscenity, ’ ’ 45 Minn. L. Rev. 5, page 91, we find:

“In applying the requirement that material must be judged as a whole and by its dominant theme, courts have often spoken of the relevance of the objectionable parts to the dominant theme. If the objectionable parts are relevant to the dominant theme, courts ordinarily have found the material not obscene. But if the parts are irrelevant to the theme and independently obscene themselves, courts have usually found the material obscene . . .”

There are articles, or stories, in these eight magazines, which would not be considered obscene, but, in viewing the total contents of each of these publications, we think it can well be said that their dominant theme appeals only to the coarse and base in man’s nature, and any literary merit is entirely coincidental. It is evident that the portrayal of sex in these magazines appeals to the prurient interest.

Perhaps we lack sophistication, but, to us, articles, which, for example, indicate that our colleges are simply play-grounds for the indulgence of sexual pleasures, are completely obscene, and totally without any redeeming feature. Of course, we are not cognizant of the standards of Washington, New York, Chicago, or San Francisco, nor is there any way for us to know the “standard” of the nation at large, but we think the evidence clearly established that the contents of the magazines in question are not compatible with the contemporary community standards in Pine Bluff, Arkansas.

We know not what the United States Supreme Court may hold as to these magazines, or the validity of Act 261. Let it here be said that, if a firm and clear guideline had been established, we would certainly follow it, for we recognize that the rulings of the United States Supreme Court are controlling, and, in conformity to the legal process, must be adhered to. But, as previously pointed out, we find no definite determination by a court majority that a “national standard” shall apply.

Appellants contend that the injunction granted by the Chancellor is clearly illegal in that it bans future issues of the magazines. The Attorney General concedes that the dissemination of future issues of a publication may not be enjoined simply because its past issues have been found to be offensive. But we, like the Attorney General, do not find that the injunction operates to that extent. The decree clearly provides that the particular issues of the pertinent magazines (introduced into evidence) shall not be sold, but it does not enjoin future issues. The court simply finds that future distribution or sale of future issues of the magazines will be enjoined upon a showing that such magazines are obscene. This means, of course, that a hearing (or trial) would be held before any order was rendered. Actually, the trial court would have the authority, upon proper complaint being made, to hold such a hearing, irrespective of whether reference was made to future issues in the present decree.

We do not agree with appellants that Act 261, as here applied, violates the First and Fourteenth Amendments to the Constitution of the United States, as abridging freedom of speech and press, nor that it deprives appellants of their property without due process of law.

The decree is modified to the extent that appellant Gent is made a party to this appeal, and, with such modification, said decree is affirmed.

Justices Johnson concurs. Justices George Rose Smith and Robinson dissent.

Sam Robinson, Associate Justice

(dissenting). Not only is it the duty of the United States Supreme Court to uphold the Constitution, but it is the duty of this court, and every court in the land, to support and defend the Constitution. Of course, any document as important as the Constitution has to be construed. It would be utterly impossible to write a Constitution for a great nation that would need no construction by courts of competent jurisdiction, and no one now questions the jurisdiction of the U. S. Supreme Court to construe the Constitution.

The First Amendment, as construed by the U. S. Supreme Court, among other things, protects the freedom of speech and freedom the press. The Supreme Court has construed this Amendment many times but the majority of our court, in the case at bar, has cited only two cases on that point; neither of the cited cases sustain the majority opinion, and no other authority is cited sustaining the majority view. One of the cases cited by the majority is Roth v. U. S., 354 U. S. 476. The facts in the Roth case are not shown, therefore it is not known whether it is analogous with the case at bar.

The other case is Jacobellis v. Ohio, 378 U. S. 184. There, Jacobellis was convicted in the Ohio courts on two counts of possessing and exhibiting an alleged obscene film in violation of Ohio Statutes. The picture was a French film called “Les Amants” (“The Lovers”). The conviction was reversed by the U. S. Supreme Court. Here, the majority makes no attempt to point out any distinction between the Jacobellis case and the case at bar. Otherwise, the majority has not shown how it can be said that the material in the case at bar is obscene and therefore not protected by the First Amendment, notwithstanding what the U. S. Supreme Court has said in the Jacobellis case.

In view of the fact that undoubtedly this case will go to the U. S. Supreme Court for a final decision, I see no point in elaborating on the construction placed on the First Amendment by the majority of our court, which is contrary to the construction of the Amendment by the U. S. Supreme Court in many cases, including Times Film Corp. v. City of Chicago, et al., 355 U. S. 35; One, Inc. v. Olesen, Postmaster of Los Angeles, 355 U. S. 371; Sunshine Book Co. v. Summerfield, Postmaster General, 355 U. S. 372; Kingsley International Pictures Corp. v. Regents of the University of the State of New York, 360 U. S. 684; Manual Enterprises, Inc. v. Day, Postmaster General, 370 U. S. 478.

All of the foregoing cases are directly in point with the case at bar. There was a conviction in each case of violating some statute prohibiting dissemination of obscene material. In each case the alleged obscenity involved was lewd, lascivious, and perhaps shocking. In each case the conviction was reversed by the Supreme Court of the United States.

The majority has made no attempt whatever to distinguish the alleged obscene material in the case at bar from the material that was in issue in the foregoing cases. There is no effort to show that the material involved here is any more obscene than the material that the Supreme Court has held to be protected by the First Amendment.

In my opinion the decision in this case will be re-, versed by the U. S. Supreme Court. I, therefore, respectfully dissent.

I am authorized to say that Mr. Justice George Rose Smith joins in this dissent.

       Actually, this court would he justified in dismissing the appeals because of non-compliance with Rule 9. We recognize that the contents of the magazines could not be fully abstracted, but we know of no reason why copies of each magazine offered in evidence could not have been furnished for each judge to examine. The inconvenience occasioned by seven different judges examining the one copy of each magazine is obvious. However, because of the importance of, and interest in, the case, we have separately inspected the exhibits in order to reach a determination on the merits of the litigation.

       A jury in Chancery Court acts in an advisory capacity only, the court not being bound by jury findings. In this case, both the jury and the Chancellor reached the same conclusion.

       Emphasis supplied.

       The note was prepared by Joseph O’Meara, Dean of the Notre Dame Law School,and Thomas L. Shaffer, Assistant Professor of Law of the Notre Dame Law School.

       13 Kan. L. Rev., P. 117, (1964) also contains an interesting article entitled “Obscenity: The Search for a Standard.”

       No effort is made in appellants’ briefs to point out differences in the articles, or pictures, from the different magazines, i.e., one magazine might possibly contain obscene material, but another particular magazine does not. It is simply the contention of appellants that none of the magazines can be classified as obscene, under the law as declared by the United States Supreme Court; a separate argument is presented by Gent, which is represented by different attorneys.

       It is mentioned also that some pornographers “may seek to disguise the pornographic nature of the dominent theme of the materials they assemble, by the inclusion of some material that is clearly legitimate.”

       The press carried an account, datelined San Francisco, May 9 of this year, as follows: “Bosoms were bared again Saturday as bawdy North Beach celebrated the acquittal of its topless dancers and fashion models.
      “Two separate juries brought in the innocent verdicts Friday, vindicating nightclub owners and their busty showgirls of police charges of lewd conduct.”
      It is interesting to note that the trial judge, in directing the jury to return a verdict of not guilty, stated: “No police officer can substitute his personal feelings of what is right or wrong.
      “The test is not what a couple of people feel. The test is what the people of San Francisco feel.”
      This occurrence points up the difference in the standards over the nation, for women appearing in this state in similar “attire” (or lack of it) would be in violation of the criminal statutes.

       The State’s witnesses were Reverend J. W. Watson, Pastor of Lakeside Methodist Church in Pine Bluff, Carl Welch, a business leader of the city, B. E. Whitmore, County School Superintendent of Schools, Reverend Pirtle, Pastor of Second Baptist Church of Pine Bluff, Arthur C. Hendrix, Assistant Probation Officer of Jefferson County, and Norman Young, Chief of Police of the City of Pine Bluff.


author: Carleton Harris, Chief Justice.

text:
    Reynolds Metals Co. v. Cash.
    5-3544
    390 S. W. 2d 100
    Opinion delivered May 24, 1965.

      McMillan, McMillan & Turner, for appellant.

      McMath, Leatherman, Woods & Youngdahl and John P. Sizemore, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Cecil Cash was an employee of Reynolds Metals Company, having been employed as an automobile mechanic for a number of years at the Jones Mill Plant near Malvern. According to the evidence, he attended church with his family on February 3, 1963, and, after lunch, complained of pains in his chest and arm, which continued until late afternoon. However, the pain subsided, and no medical aid was sought. Cash returned to his job on Monday morning, and worked through Wednesday noon. A short time after eating lunch, and while servicing a truck, he became ill, complaining of pains in the left arm and chest. He was taken to Hot Spring County Memorial Hospital, and, after the making of an electrocardiogram, his ailment was diagnosed as a coronary occlusion, and Cash was ordered to remain inactive. About fifteen or sixteen hours after admission, around 7:00 A.M. on Thursday, Cash suddenly died. Cause of death was determined as acute coronary occlusion due to atherosclerosis. Lucille Cash, widow, sought benefits for herself and an eleven-year-old son, contending that her husband had suffered a compensable injury. The claim was controverted by appellants, and a hearing was held before a commission referee. This referee held that the claim was compensable, and on appeal, the full commission sustained the award. Thereafter, the Circuit Court affirmed the commission’s finding. From the judgment so entered, appellants bring this appeal.

Reduced to the concise contention, appellants’ argument is that the atherosclerotic condition, suffered by Cecil Cash, was entirely responsible for the acute coronary occlusion. It is asserted that this condition resulted from a gradual body process, occurring over a long period of time, and the work being performed by Cash on Wednesday, had absolutely nothing to do with the attack that occurred at that time. Mrs. Cash testified that her husband complained on Sunday, after eating, of pain in his arm and side; however, it subsided, and he went to work on Monday, apparently entirely normal. The fatal attack then occurred on Wednesday. It is not known whether Cash suffered a heart attack on Sunday, since he was not attended by a physician. The medical evidence reflected that this occurrence could have been the beginning of a heart attack, but, on the other hand, pains sometimes represent a digestive disturbance of some type. The family physician, Dr. W. F. Barrier, testified that Cash had frequently had attacks of acute pain in the stomach and abdomen for the last several years before his death, and, at times, had to be relieved by morphine. However, under our view, the question of whether Cash actually suffered a heart attack on Sunday is immaterial to the issue, for we have held that where there is substantial evidence that one’s work aggravated an already existing condition, and hastened the injury of death, the claim is compensable, as arising in the course of, and out of, the employment. In the case of Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489, the workman, Robbins, suffered a heart attack, which admittedly had commenced before he had actually performed any labor. We said:

“The question therefore before this Court, is whether there was substantial evidence to show that Robbins’ condition was aggravated by the work performed, as heretofore set out; or stated differently, whether his death occurred sooner than would have otherwise occurred if the work had not been performed.”

That too, is the question here. Dr. Philip Cullen stated:

“In my opinion the work Mr. Cash was doing at the time of onset of his acute symptoms contributed to the severity of his disease and lessened his chances for survival. ’ ’

Dr. Barrier also testified positively that the work Cash was performing “hurried” or aggravated the condition. Medical evidence was offered by appellants to the effect that the work being performed by Cash had nothing to do with the attack, but we are only concerned with whether there was substantial evidence to support the finding of the commission. Had the commission accepted the version of appellants’ expert witnesses, we would likely also hold that a decision for the companies was supported by substantial evidence.

Appellants assert that, with the ailment suffered by Cash, activity of any kind would have contributed to the attack, i.e., he just happened to be engaged in his work, instead of participating in some other activity that would likewise demand effort. Of course, we do not know whether the attack would have occurred if Cash had been fishing, or driving, or playing golf — nor is this knowledge held by anyone else. We do, however, know that he was working on his job, and that the physicians, heretofore mentioned, stated that the work aggravated his condition, and hastened his death. Of course, if Cash suffered a heart attack on the preceding Sunday, and a doctor on that date had found that to be true, Cash would have undoubtedly been ordered to bed, and directed to refrain from activity of any nature — but no physician was called, and no one really knows whether he actually suffered an attack at that time. People frequently have chest pains which are not related to heart disease, and we consider it an accepted fact that unless pains are quite severe, the average person does not immediately call a physician. The record reflects that Mr. Cash had had intense pain, at times, for ten years, which probably (according to the family doctor) was caused by an improper functioning of the liver and gall bladder. At any rate, we do not think Cash can be blamed for not consulting a physician on Sunday. The record in this case does not clearly reveal just when the attack started —but it did start — either before or during work — such work (according to medical evidence), hastening his demise.

Affirmed.

       Although not controlling, there is evidence that the job performed by Cash was rather strenuous, requiring a constant uplifting of the arms, and there is evidence that, after his death, two men were given the job of performing his normal duties.