author: Paul Ward, Justice. OoNley Byrd, Justice, John A. Fogleman, Justice,

text:
    Glenn F. WALTHER v. David C. McDONALD Jr.
    5-4379
    422 S. W. 2d 854
    Opinion delivered January 22, 1968

      Leon Catlett and Glenn F. Walther, for appellant.

      Arnold & Arnold and Abner McGehee, for appellee.
   Paul Ward, Justice.

The issue presented here for decision is whether Glenn F. Walther (appellant) is legally a member of the Arkansas Public 'Service Commission. Set out below are some of the undisputed background facts which explain how the issue reaches this Court.

The Legislature convened in regular session on Monday, January 9, 196?. On that day Dan D. Stephens was a duly appointed, qualified and acting member of the said Commission.
On January 14, 1967, the term for which Stephens was appointed expired, but pursuant to Ark. Stat. Ann. § 73-101 (E»epl. 1957) he continued to hold office “until his successor was appointed and qualified.”
On February 9, 1967 the Senate went into the Committee of the Whole, and then into Executive Session, at which time appellant was appointed to succeed Stephens for a term to expire on February 14, 1973. Shortly thereafter (but on the same day) the Governor sent to the Senate the appointment of Jerry Thomasson to the same position on the Commission.
On February 10, 1967 (Friday) the Senate passed a resolution (No. 16) reaffirming its action on the previous day.
On the following Monday (February 13, 1967) the Senate resumed its deliberations (in Executive Session) of appointments by the Governor which began on February 9, and the appointment of Jerry Thomasson by the Governor was rejected because the position had already been filled by the appointment of appellant.

On February 24, 1967, David C. McDonald Jr., a resident, citizen and taxpayer filed a complaint in the Pulaski County Chancery Court, against appellant, the State Auditor, and the State Treasurer, asking the court to declare appellant’s appointment illegal and void, and to enjoin the state officers from paying his salary. The complaint alleged, among other things, that the appointment of appellant was illegal and void under the provisions of Ark. Stat. Ann. § 6-601 et seq. and § 7-201 et seq. (Repl. 1956).

On February 27, 1967 the state officers filed a general denial and on the following day appellant filed an answer denying all material allegations in the complaint and further alleging that his appointment was “in conformity with the rules and customs of the Senate, the Statutes of the State of Arkansas and the Constitution of the State of Arkansas, and that he is now serving as a legally appointed member of the Public Service Commission since the 10th day of February, 1967.” He also asked that the complaint be dismissed for want of equity.

A trial was had on the issues joined on a stipulation of facts and the oral testimony of one member of the Senate. At the conclusion, the trial judge issued an exhaustive Memorandum Opinion from which we quote the following portions:

“The Arkansas Senate, in adopting Resolution No. 16, seemingly acted (according to the undisputed arguments of all parties) under the authority of Act 417 of 1947, Acts of Arkansas. Therefore, the first question considered by the Court in reaching its conclusion in this case is the applicability of this act to these circumstances. * * *
“Because it is the conclusion of the Court that 417 is not applicable to the facts of this case, it is not necessary to consider the other points of argument presented by the parties.”

The trial court then, in its decree, found “that the purported appointment of the defendant, Glenn F. Wal-ther, by the Arkansas Senate, as a member of the Public Service Commission is illegal and void,” and restrained him “from acting or purporting to act” as a member of the Commission — also restraining the other defendants from paying his salary.

We agree with the trial court’s interpretation of the decisive issue presented in this case, and also agree with its determination of that issue:

On appeal, and in response to the one vital issue found by the trial court, appellant states:

Act 417 of 1947, Section 1 [Ark. Stat. Ann. § 6-601 (Repl. 1956)] applies to all Boards and Commissions, specifically including the Public Service Commission.

We are unable to agree with the interpretation appellant gives to the above statute. There are several reasons why we conclude this statute deals only with Honorary Boards and Commissions, and does not include the Public Service Commission. We note here that appellant does not, and cannot reasonably, contend that the Public Service Commission is an Honorary Commission.

(a) The title of said Act 417 contains this clause: “For regulation of sessions of Honorary Boards and Commissions.” In Stewart v. Shaver, 207 Ark. 847 (p. 849), 183 S. W. 2d 299, this Court said:

/
“Result is that we must deal with an act wherein the title (which, of course, is not controlling, but may be looked to in ascertaining intent) * *

In the early case of Reynolds v. Holland, 35 Ark. 56 (p. 60) the Court said: “The title of this act affords the clue to its intention.” Our research reveals that this case (on the point stated) has been cited with approval in more than 10 decisions of this Court, including- the case of Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S. W. 2d 50. It is true that we have said that the language in the act must be considered, and, when clear, it is controlling.

(b) We now look at some of the language in Act 417. Section 2 says the “board or commission shall meet in regular session at least once during each bimonthly period;” that the board shall notify the Governor who shall be eligible to attend and sit with the Commission; Section 3 provides that any member of the board who shall be absent from two successive regular meetings shall be subject to removal. Considering the above language, it would be unreasonable to say it was meant to apply to the Public Service Commission.

Appellant, in this connection, argues that if the legislature had intended for Act 417 to apply only to honorary boards, it would have obviously amended Act 1 of 1943, but we find no merit in such argument. Said Act 1 abolished all boards and commissions charged with “charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas as now established”, and created sixteen other boards of nature. It is common knowledge of which we take judicial notice that since 1943 many honorary boards and commissions have been established which are in no way related to, or of the nature of, the ones mentioned above, and which may be subject to the provisions of Act 417.

Ark. Stat. Ann. § 73-101 (Repl. 1957) specifically deals with the appointments to the Arkansas Public Service Commission, and is applicable in this case. It provides, among other things, that the Governor shall appoint the commissioners — subject to approval of the Senate; that the terms will expire on January 14 of each year, and that: “Each commissioner shall hold office during the term for which he was appointed and until his successor is appointed and qualified”. (Emph. supplied.)

In view of what we have heretofore said, we conclude that appellant’s appointment by the Senate was a nullity and that the decree of the trial court must be, and it is hereby, affirmed.

FoglemaN and Byrd, JJ., dissent.

OoNley Byrd, Justice,

dissenting. The majority’s construction of Act 417 of 1947 to apply only to honorary boards and commissions ignores the practicalities of our form of government. By our constitution the legislature in a sixty-day session (with certain exceptions) is expected to appropriate money for the operation of the various state agencies, boards and departments and to provide the policy limits within which they are to operate. Almost every incoming governor seeks some type of reform legislation, and it appears to me that before a representative or senator is called upon to vote for the expenditure of money or the revamping of legislation he should be entitled to know who will be the appointees in the various departments, boards and cpm-missions — i. e., who is going to handle the money'to be appropriated and administer the laws to be passed. Thus, under the construction placed upon Act 417 by the senate and appellant, the legislature could force the governor to get his administrative house in order before the legislature got down to any serious business.

Under the majority’s decision the governor can nullify the senate’s right of confirmation of many appointees by the simple expedient of waiting until after the expiration of the 60-day session of the legislature before making his appointments.

Therefore I dissent from the majority’s construction of the Act because it does violence to both the plain language of the Act and the underlying practical reasons for its passage.

I also concur in the reasons stated by Justice Fogle-man.

Fogleman, J., concurs in this dissent.

John A. Fogleman, Justice,

dissenting. The reasons given by the majority for sustaining the action of the trial court fail to take into consideration many previous decisions of this court and utilize others only for “proof-text” quotations without considering the background on which those decisions are based. I submit that Act 417 of 1947 is a complete, understandable, unambiguous statute and that its language speaks clearly for itself. In order to demonstrate, it becomes necessary to reproduce the full text of the act (omitting the sever-ability clause), now appearing as Ark. Stat. Ann. §§ 6-601, 6-602, 6-603 (Eepl. 1957).

SECTION 1. Within twenty days after the convening of the General Assembly in regular session, the Governor shall submit to the Senate for confirmation the names of such board or commission members and appointees as are by law required to be confirmed by the Senate. Provided, however, that the names of appointees to fill vacancies which occur after the first twenty days of the session of the General Assembly, but prior to the adjournment thereof, shall be submitted within five days from the date of each such vacancy. ,In the event of rejection by the Senate of an appointee whose name has been so submitted, the Governor shall, within ten days after receipt of written notice from the Secretary of the Senate of such rejection, submit the name of another appointee to fill such vacancy. In the event the Governor should, within the time herein required, fail to appoint, or fail to submit to the Senate for confirmation, the name of any appointee, the office shall be vacant, and the Senate shall proceed to fill the vacancy by an appointee of its own choice.
SECTION 2. Each such hoard or commission shall meet in regular session at least once during each bimonthly period, and shall meet in special session as often as its business may require. Except in those instances when such boards or' commissions have under consideration privileged information concerning individuals, all meetings shall be open to the public.
The chairman, or secretary, of each such board or commission shall, in writing and not less than forty-eight hours in advance thereof, notify the Governor of each regular or special session, and the Governor, or a representative designated by him, shall be eligible to attend all such meetings, and to sit with such board or commission when privileged information is being considered; and the said secretary shall, within five days after each such meeting, furnish the Governor with a certified copy of the minutes thereof. Provided, however, the Governor may waive the time of notice herein required as it relates to special meetings.
SECTION 3. Any board or commission member who shall be absent from two successive regular meetings shall be subject to removal from such board or commission in the event he shall fail to present to the Governor a satisfactory excuse for such absence; and in that event, such unexcused absence shall constitute sufficient cause for removal.

Not one single word in the text of this act indicates that it relates only to “honorary” boards or commissions, nor is the word “honorary” mentioned anywhere. Especially is this obvious when § 1, the section in question, is considered.

The first principle of statutory construction brushed aside by the majority is that the title of an act is no part of the act itself. Laprairie v. City of Hot Springs, 124 Ark. 346, 187 S. W. 442; Special School District No. 33 v. Howard, 124 Ark. 475, 187 S. W. 444; McLeod v. Purnell, 164 Ark. 596, 262 S. W. 682; Glover v. Henry, 231 Ark. 111, 328 S. W. 2d 382.

The conclusion reached by the majority then, is contrary to many of our decisions, holding that the title of an act is not controlling in its construction. Special School Dist. No. 33 v. Howard, 124 Ark. 475, 187 S. W. 444; State v. White, 170 Ark. 880, 281 S. W. 678; City of Conway v. Summers, 176 Ark. 796, 4 S . W. 2d 19; Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602; Glover v. Henry, 231 Ark. 111, 328 S. W. 2d 382; Berry v. Gordon, 237 Ark. 547, 376 S. W. 2d 279. As aptly put by Professor Bobert M. Anderson, when the enacted portion of an act is clear and unambiguous, the orthodox view is that the search for meaning is at an end. “Drafting A Legislative Act In Arkansas,” 2 Ark. L. Rev. 382, 386. I submit that the act in question clearly shows that it is intended to apply to all those board and commission members as are by law required to be confirmed by the Senate. Diligent search and examination reveals no doubt, or reason for doubt, whatever as to the application of the act. It is only when an examination of an act itself reveals doubt as to the legislative intent, because of ambiguities in its language, that the courts look to the title as an aid to construction. Western Union Telegraph Co. v. State, 82 Ark. 302, 101 S. W. 745; Payne v. State, 124 Ark. 20, 186 S. W. 612; Laprairie v. City of Hot Springs; 124 Ark. 346, 187 S. W. 442; McLeod v. Purnell, 164 Ark. 596, 262 S. W. 682; Roscoe v. Water & Sewer Imp. Dist. No. 3, 216 Ark. 109, 224 S. W. 2d 356. This is the first instance I have found in the Arkansas cases wherein this court looked to a portion of an act’s title to find a doubt or ambiguity and then resolved the doubt by looking to the same portion of the title. It is clear that this must he the case because the second clause of the title is the only place where application to honorary boards and commissions is suggested. It is only where the meaning of the lawmakers is in doubt that the language of the title of a statute has any force in interpretation of its meaning. State v. White, 170 Ark. 880, 281 S. W. 678; City of Conway v. Summers, 176 Ark. 796, 4 S. W. 2d 19; Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602. See, also, 2 Ark. L. Rev. 382, 386, Anderson. The legislature and courts of Arkansas have not been hamstrung by any limitation on subject matter by titles of acts since the adoption of the Constitution of 1874. Laprairie v. City of Hot Springs, supra. There is no good reason for the court to impose such a limitation now.

The next cardinal rule of statutory construction bypassed by the majority is that the title of an act cannot limit its application or that of a section thereof. Drainage Dist. No. 18 v. McMeen, 183 Ark. 984, 39 S. W. 2d 713. To say that Act 417 applies only to “honorary” commissions is to limit the application of the language of the act itself, particularly Section 1 which clearly applies to such board and commission members as are by law required to be confirmed by the Senate.

There is still another important rule of statutory construction ignored by the majority. When the title of an act is repugnant to its subject matter, the title cannot be considered in determining the legislative intention if the act itself is unambiguous. Huff v. Udey, 173 Ark. 464, 292 S. W. 693; Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909. Professor Anderson (2 Ark. L. Rev. 382, 385) makes its very clear that a title may not be employed to restrict the plain meaning of the purview, or enacted portion, and states that it is equally clear that the purview will control in the event of a patent inconsistency.

Some examples of cases in which this court has refused to permit the title of an act to control its construction or limit its scope are:

Special School District No. 33 v. Howard, 124 Ark. 475, 187 S. W. 444, where the title of the act indicated that it was to repeal a previous act, hut a perusal of the text disclosed that the act’s application was limited to one county.

Drainage District No. 18 v. McMeen, 183 Ark. 984, 39 S. W. 2d 713, where the title indicated that the act authorized the funding of bonded indebtedness of levee or drainage districts and the reassessment of benefits in such districts, but the section conferring authority to reassess benefits was held not to be limited to those districts proposing to refund indebtedness.

Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909, where the title was “An Act To Fix Compensation Of County Officers” but the text included two sections dispensing with the requirement of publication of delinquent tax lists.

Huff v. Udey. 173 Ark. 464, 292 S. W. 693, where the title of a stock law indicated that it applied to certain portions of Pulaski County north of the Arkansas River, while the language of the text included other portions of the county.

Berry v. Gordon, 237 Ark. 547, 376 S. W. 2d 279, where an act entitled “An Act To Make An Appropriation To Defray Expenses In Connection With Public Relations Activities Of Certain Constitutional Officers Of The Executive Department Of The State Of Arkansas ’ ’ was held to authorize reimbursement for public relations expenditures of the Speaker of the House of Representatives, even though he was neither a constitutional officer nor a member of the executive department.

The lower court and the majority here have accepted as valid appellee’s argument that reading of Sections 2 and 3 of Act 417 makes it clear that the General Assembly could not have intended that any part of the act apply to anything except “honorary” commissions. His argument is that it is unthinkable that a commission such as the Public Service Commission be required to notify the Governor of each regular or special session, or that he be authorized to remove a member who should be absent from two successive regular meetings. The distinctions offered to support this contention are that the Public Service Commission holds hearings lasting several days, that its powers and duties are many and varied, and that its members are paid substantial salaries. By contrast, it is said that the members of an “honorary” commission are not paid a salary but receive a per diem only, and that responsibilities are less, requiring fewer meetings. It seems logical, rather than illogical, to me that one being paid a “full-time” salary for a full-time job having great responsibilities should be held to no less rigid requirements than one serving for the honor and having less important responsibilities. The removal provided for is certainly not mandatory but discretionary, as the defaulting member may present a satisfactory excuse to the Governor. The highest magistracy of the judicial department of government should not construe an act upon any assumption that the chief magistrate of the executive department would exercise authority under it arbitrarily and capriciously. In applying the test of logic, it seems more significant that the Governor have notice of sessions of an agency with, the responsibilities of the Public Service Commission than that he have knowledge of sessions of commissions with much more limited powers and duties. It is also at least as important that he be given the benefit of having his representative present when an agency regulating public utilities affecting the lives of all our citizens goes under the cloak of privileged meetings as it is that he have this opportunity in the event of such meetings by agencies with a narrower scope. The propriety of these privileges should be emphasized since the commission may conduct its hearings anywhere in the state. Ark. Stat. Ann. § 73-104 (Repl. 1957).A feel that the construction making the act applicable to all commissions whose members must be confirmed by the Senate is much more logical than that of appellee, the trial court, and the majority. But even if I did not, I agree with appellee when he says: ‘ ‘ The short answer is that the Courts may not frustrate the legislative will because it is ‘illogical,’ or because it evinces a policy decision with which they disagree.”

We should also consider and respect the fact that the General Assembly has by its action construed the act in a manner contrary to the majority opinion. While this may not be controlling on us, it should certainly be persuasive. If an earlier act is ambiguous, subsequent action by the legislative branch indicative of its intent or meaning is entitled to great weight when the courts are called upon to interpret the prior law. Arnold v. City of Jonesboro, 227 Ark. 832, 302 S. W. 2d 91. See, also, United States v. Bowling, 256 U. S. 484, 41 S. Ct. 561, 65 L. Ed. 1054 (1921); California School Township v. Kellogg, 109 Ind. App. 117, 33 N. E. 2d 363 (1941); Stanford v. Butler, 142 Tex. 692, 181 S. W. 2d 269 (1944); Chatlos v. McGoldrick, 302 N. Y. 380, 98 N. E. 2d 567 (1951); 2 Sutherland Statutory Construction, 3d. Ed., § 5110.

If the title of the act were properly to be considered, it is significant that its first clause relates to the “Manner in which Certain Appointees of the Governor Shall be submitted to the Senate for Confirmation,” while its second purports only to be “For Regulations of Sss- sions of Honorary Boards and Commissions and for other Purposes.” [Emphasis mine] Thus, even the title does not indicate an intent to limit the effect of Section 1 to “honorary” hoards and commissions'. The obvious legislative intention of Section 1 is to minimize gubernatorial evasion of the requirement ¡of senatorial confirmation of appointees by utilization of incumbent holdovers and interim appointments.

I submit that this court has, in this decision, inappropriately and in disregard of the separation of powers, imposed its own sense of propriety upon the General Assembly, an equally independent coordinate department of government. The wisdom, advisability, expediency, propriety, and necessity of particular legislation are matters solely for consideration of the legislative department and are not for judicial determination. Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272; Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421; Reed v. Hundley, 208 Ark. 924, 188 S. W. 2d 117; Fugett v. State, 208 Ark. 979, 188 S. W. 2d 641; Cook v. Arkansas Missouri Power Corp., 209 Ark. 750, 192 S. W. 2d 210; Longstreth v. Cook, 215 Ark. 72, 220 S. W. 2d 433; Beaumont v. Faubus, 239 Ark. 801, 394 S. W. 2d 478.

I submit that the cases cited by the majority as authority for their application of the act’s title do not in anywise transgress the rules of construction set out above. Reynolds v. Holland, 35 Ark. 56, found the title to be the clue to the legislative intention of the act there under consideration when its text, literally construed, would have failed in the legislative purpose to establish a county boundary line and would have made the act unconstitutional. There was no indication that the title to every act furnished the clue to its intention. In Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S. W. 2d 50, the court referred to the titles of certain acts only to reinforce its conclusion that there was nothing in any of the three acts to support a contention that by implication they amended or repealed previous acts fixing a county line. In Stewart v. Shaver, 207 Ark. 847, 183 S. W. 2d 299, also, the title was used as a bulwark for the conclusion that the act in question applied only to primary elections because the title and the first 11 sections of an act dealt with primary elections, the 12th imposed penalties, and the 14th was the emergency clause, while the 13th, in addition to stating a severance clause, stated that the act should apply to all general and special elections. The court found that Section 13 only applied to general and special primary elections. While the court’s conclusion there seems to have been clearly indicated by the language of the act itself, the most that can be said is that resort was had to the title to resolve an ambiguity in the text of the act. In both the Pruitt and Stewart cases, the court said that the title was not controlling.

Because I differ with the majority on the point on which they affirm the chancellor, and because I would reverse the decree, it is necessary that I state my reasons for rejecting other arguments advanced in support of this holding. The obvious purpose of the General Assembly was to minimize gubernatorial bypassing of the requirement of senate confirmation of appointments by hold-over service and interim appointments.

1. It is said that the Senate’s appointment could be of no effect because (1) a vacancy must exist before the act is applicable, and (2) Ark. Stat. Ann. § 73-101 vests the power of appointment in the Governor. The lower court says that the act provides for three classifications or conditions under which the Senate may appoint :

(a) to fill vacancies existing prior to convening of regular sessions not filled by the Governor within 20 days after the convening of the General Assembly;
(b) to fill vacancies occurring after the first 20 days of the session but prior to adjournment if Governor fails to submit the name of a nominee to the Senate for confirmation within five days from the date of vacancy ;
(c) where an appointee has been rejected and the Governor has failed to submit the name of another within 10 days after receipt of notice from the Secretary of the Senate. The appellee contends that the whole premise of this scheme is the existence of a vacancy and that no vacancy existed because the incumbent held over.

The complete answer is that the first sentence of Section 1 does not mention or relate to a vacancy in any way. The proviso in the second sentence relates to vacancies, as does the third sentence. The fourth sentence then, declares a vacancy to exist upon failure of the Governor to act within the allotted time. It would be an absurdity to declare a vacancy in an office already vacant. The lower court’s construction would render this fourth sentence a meaningless and useless appendage. The only construction of the act which would make all its words meaningful would require that:

(a) Within 20 days after convening of the General Assembly, the Governor must submit the names of all board and commission members whose confirmation by the Senate is required. (This would cover not only all vacancies in office, but. all replacements for those whose terms had expired.)
(b) The Governor must submit to the Senate the names of proposed appointees to fill vacancies which occur after the first 20 days of a regular session but prior to adjournment thereof within five days from the date of the vacancy.
(c) In the event of Senate rejection of an appointee whose name was submitted within five days after a vacancy, the Governor shall submit another within 10 days.

In the event the Governor shall fail to submit the name of an appointee for confirmation within the applicable time limit, then the office becomes vacant, and the Senate may appoint.

2. Appellee contends that the resolution by which Walther was appointed by the Senate was invalid because it was not read three different times without suspension of the rules. He contends that this is required by Article Y, § 22. This section states that every bill must be read at length on three different days in each house, unless the rules are suspended by two-thirds of the house. It is clear from reading other sections of our constitution that the scope of the term “bills” is limited to proposals for legislative acts and that the “reading” requirement is not intended, to apply to resolutions. Article V, § 21 requires that no law be passed except by bill. Article Y, § 29 prohibits the withdrawal of money from the treasury except in pursuance of specific appropriation by law and requires that the purpose of the appropriation be distinctly stated in the bill. Section 41 prohibits the incurring of expense by either house except by bill passed ..by both houses and approved by the Governor. Article YI, § 15 covers the veto power and speaks of a bill being presented to the Governor for his approval and of its becoming law if not returned in time or if it should be passed over his veto. Article YI, § 16 specifically tre,ats concurrent resolutions, requiring gubernatorial approval of those in which the concurrence of both houses is required, and provides for passage over the Governor’s disapproval “according to the rules and limitations prescribed in the case of a bill.” [Emphasis mine] It seems clear that the framers of the constitution recognized the difference between a bill and a resolution and, therefore, would have specifically mentioned resolutions in connection with any constitutional requirements they intended to impose for action thereon. For the fields of legislation and constitutional law, Black’s Law Dictionary gives this definition of “bill”:

The word means a draft of an act of the legislature before it becomes a law; a proposed or projected law. A draft of an act presented to the legislature, but not enacted.

3. Another argument against the validity of the appointment advanced by appellee is that the vote was not taken viva voce and entered upon the journal as required by Article Y, § 14 of the Arkansas Constitution. Viva voce means “with the living voice;” by word of mouth or orally. Webster’s New International Dictionary, 2d & 3d Editions; Random House, Unabridged Dictionary of the English Language; 92 C. J. S. 1020. According to Black’s Law Dictionary: “As descriptive of a species of voting, it signifies voting by speech or outcry, as distinguished from voting by a written or printed ballot. ’ ’ It has been held that there are three methods of making an appointment by viva voce vote. They are:

1. by calling the roll with each member naming his choice;
2. by placing candidates in nomination and then calling the roll of members;
3. by naming a candidate by resolution and the members orally voting for it.

See, In re Brearton, 44 Misc. Rep. 247, 89 NYS 893 (1904), where the court held that a statute requiring that appointments by a city council be by viva voce vote was- complied with by actions taken by both the second and third methods, one of which was utilized at one meeting and the other at a subsequent meeting of the council. We must presume that the vote on Senate Resolution No. 16 was by viva voce vote, even though the journal does not specifically say so. It is a well recognized rule that the courts must presume that constitutional procedural requirements have been followed by our General Assembly unless the legislative journals themselves show to the contrary. Huff v. Udey, 173 Ark. 464, 292 S. W. 693; Davis v. Road Improvement Dist. No. 7, 162 Ark. 98, 257 S. W. 724; Ewing v. McGehee, 169 Ark. 448, 275 S. W. 766.

The direction that the vote be entered on the journals does not require more than a declaration of the result and is complied with by the showing in the Senate Journal that the resolution was adopted. Had the framers of our constitution intended, as appellee contends, that the yeas and nays be recorded in the journal, they would have said so in those words, as they did in Article V, §§ 12 and 22.

4. The trial judge indicated that no vacancy existed in the position at the time of the senatorial appointment. I disagree. The clear provision of Section 1 of the act is to declare a vacancy to exist when the Governor fails to submit the name of his nominee within the time allotted. The legislature’s power to say when an office is vacant can only be limited by specific constitutional provision. State v. Lansing, 46 Neb. 514, 64 N. W. 1104, 35 LRA 124 (1895); State v. Christensen, 84 Utah 185, 35 P. 2d 775 (1934). See, also, 67 C. J. S., Officers, § 50b; 42 Am. Jur., Public Officers, § 132. This power is particularly appropriate when the office is one which was created by the General Assembly. Townley v. Hartsfield, 113 Ark. 253, 168 S. W. 140. The case of Justice v. Campbell, 241 Ark. 802, 410 S. W. 2d 601, relied upon by appellee, has no application because this court had previously said that in the sense of the constitutional provision (Amendment 29) relating to the filling of vacancies in elective offices, a vacancy only existed when there was no incumbent. This specific constitutional provision then prevented the General Assembly from declaring a vacancy to exist otherwise. There is no snch constitutional restriction here.

5. Finally, it is contended that appellant’s appointment was invalid because Section 1 of Act 417 (Ark. Stat. Ann. § 6-601) is an unconstitutional encroachment on the executive branch in violation of Article 4, 1 and 2 of the Constitution. This argument is based upon the contention that there is an inherent power to appoint in the executive branch of the government, and that the act violates the separation of powers provided for by those constitutional provisions. Whatever may be the rule in other states, this contention is without merit in Arkansas. The matter was settled in Cow v. State, 72 Ark. 94, 78 S. W. 756, where there was an appeal from a judgment of ouster in a quo warranto proceeding. The office involved was the “State Capitol Commission” created by the General Assembly to carry into effect., the purposes of Act 146 of 1903. The members of this commission were appointed in a joint session of the Senate and House of Representatives, pursuant to the act. The Governor ignored the act and appointed five commissioners to carry out the purposes of the act upon the identical contention made by the appellee here. This court said:

“First as to the poiver of the legislature to make appointments to office. In the United States the general power to appoint officers is not inherent in the executive or in any other branch of the government. It is a prerogative of the people, to be exercised ,by them or that department of the state to which it has been confided by the constitution. The legislature has, we think, power to make appointments to office unless its powers in that respect are restricted by the constitution, either expressly or by implication. Hovey v. State, 119 Ind. 386, 21 N. E. 890; People v. Hurlbut, 24 Mich. 64, 9 Am. Rep. 103; State v. George, 22 Oregon 142, 29 Pac. 356, 29 Am. St. Rep. 586; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122, and extended and fnll discussion found in note; Cooley, Const. Lim. (6th Ed.) 104-133; 23 Am. & Eng. Enc. Law (2d Ed.) 340.

“Now, an examination of our constitution will show that it not only contains no general or express prohibition against the exercise of the appointing power by the legislature, but it affirmatively shows that it was the intention of the framers of the constitution to permit the legislature to exercise such power to a limited extent. This is shown by the provision to the effect that if in an election for governor, secretary of state, treasurer, auditor or attorney general, two or more candidates for either of said offices shall receive an equal number of votes, then one of those persons receiving the highest votes ‘shall be chosen by the joint vote of both houses of the General Assembly.’ Art. 6, § 3, Const. 1874. It is shown also by the section which declares that ‘whenever an officer, civil or military, shall be appointed by the joint or concurrent vote of both houses, or by the separate vote of either house of the General Assembly, the vote shall be taken viva voce, and entered on the journals.’ Art. 5, § 14. The contention that this section refers only to the officers of the General Assembly, such as clerks, pages and others necessary to discharge the duties of that body, does not seem to be borne out by the language used. Why should it speak of the appointment of officers, ‘civil or military,’ if that was the meaning? We do not recall any military officer attached to the legislature, or to either of its branches, and we think that the language used is too broad to justify the construction contended for. It is, of course, not usual to have vacancies in office filled by appointment made by the General Assembly, and under our constitution there are many offices which could not be filled in that way. But, though not the usual method, the language of the constitution above quoted shows that the framers of that instrument intended that it might be done in some cases not otherwise provided for, and this is not the only instance in which such power has been exercised by the legislature. It is well known that the last legislature made provision for digesting the statutes of the state, and appointed both a digester and an examiner to do the work required. The act by which these appointments were made by the legislature was approved by the governor, who thus inferentially approved the contention that the legislature has in some cases power to make appointments, and that a statute which attempts to confer this power is not necessarily unconstitutional and void on that account. Acts of 1903, p. 414. We are, then, of the opinion from the language of the constitution itself that the legislature may to some extent, in cases not otherwise provided for, exercise the appointing power. It is also plain, we think, that the governor has not inherent power, by virtue of his position as chief executive of the state, to make these appointments. If he has such power, it must be because the constitution has conferred it upon him, and thus, inferentially at least, forbidden the legislature to make them.

“The next question, then, is whether the power to appoint commissioners to serve on a board such as the one created by this act has been conferred upon the governor by the constitution in such a way as to prohibit the legislature from, making the appointments. There are only two sections of the constitution quoted by counsel for appellants as conferring this power upon the governor. One of these is as follows: ‘When any office, from any cause, may become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have the power to fill the same by granting a commission, which shall expire when the person elected to fill said office at the next general election shall be duly qualified. ’ Art. 6, § 23. The other section quoted is one of the amendments to the constitution, and is in the following language, to-wit: ‘The governor shall, in case a vacancy occurs in any state, district, county or township office in the state, either by death, resignation or otherwise, fill the same by appointment, to be in force until the next general election.’ Both of these provisions, by their terms, plainly refer to elective offices — to those state, county, township and other offices the incumbents of which are selected by election at regular intervals. This is shown by the fact that each of those sections limits the term of the appointee of the governor appointed under them to the time when the person elected to the office at the next general election shall qualify and assume the duties of the office, thus making it plain that they refer to elective offices.”

The above case, has been cited in subsequent cases, some of which are relied upon by appellees. None of these cases limit the application of the doctrine set out in that opinion, but recognize it as correct. In Davis v. Wilson, 183 Ark. 271, 35 S. W. 2d 1020, the Cox case is referred to as establishing the fact that the Governor has no inherent power of appointment, and that none was vested in him by constitutional provisions limited to elective officers only.

In Oates v. Rogers, 201 Ark. 335, 144 S. W. 2d 457 (relied upon by appellee), the question was constitutionality of a statute purporting to create the separate office of collector in Pulaski County and attempting to place the power of appointment of a collector in certain members of the judiciary. The statute was held unconstitutional, not because of any inherent power of appointment by the Governor, but because of violation of the doctrine of separation of powers by the attempted imposition upon the judiciary of duties not belonging to the judicial department and for the further reason that the term of office provided for was in excess of constitutional limits. In that case, the court clearly recognized the validity of the doctrine in Cox v. State, supra, when it said:

“We need not speculate what.the situation would have been if the General Assembly had named a collector, or had undertaken to delegate this authority to a person or group of persons not of the judiciary. Cox v. State, 72 Ark. 94, 78 S. W. 756, 105 Am. St. Rep. 17, is authority for the proposition that the Governor has no inherent power by virtue of his office or of Const. art. 6, Sec. 23, to appoint certain commissioners, and that the Legislature has power to make appointments to office unless its powers in that respect are restricted by the Constitution, either expressly or.by implication.”

We do not find this same limitation upon the legislative branch because a state’s constitution is not an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to limitations and restrictions fixed by the constitutions of the United States and of the state. St. Louis I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938. Cox v. State, supra, was cited in Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980, as authority for the statement that the General Assembly has the power to name the persons, whether officials or not, who shall execute the laws it may pass.

Appellee also relies upon Howell v. Howell, 213 Ark. 298, 208 S. W. 2d 22, but that opinion is not authority for their contention. It was clearly said that the limitation in the Cox case had no application there because the vacancy in the office of chancellor was to be filled by the Governor under the authority of the constitution, chancellors being state officers under the constitution. See Amendment No. 29.

It is well known that the General Assembly has, in numerous instances, named commissioners of improvement districts upon creating such districts. See, e. g., Act 569 of 1923; Act 19 of 1893; Road Acts of 1919. This court has approved this practice as being within the power of the General Assembly. Biggs v. Stout, 168 Ark. 809, 271 S. W. 458; Reitzammer v. Desha Road Improvement Dist. No. 2, 139 Ark. 168, 213 S. W. 773; Campbell v. Beaver Bayou Drainage Dist., 215 Ark. 187, 219 S. W. 2d 934. The insertion of Art. V, § 14 of the Constitution of 1874, governing the method of voting on appointments by the General Assembly, or either house thereof, is positive proof that it was contemplated that appointments would he made by the legislative branch.

In conclusion, I humbly submit that we should give due regard to the statement contained in Walker v. Allred, 179 Ark. 1104, 20 S. W. 2d 116, where an attempt was made to limit the application of an act by a statement in its title, where we said:

“* * * It is a well-settled rule of law that where the will of the Legislature is clearly expressed, the court should adhere to the literal expression of the enactment without regard to consequences, and every construction derived from a consideration of its reason and spirit should be discarded, for it is dangerous to interpret a statute contrary to its express words where it is not obvious that the makers meant something different from what they have said. Bennett v. Worthington, 24 Ark. 487; M. L. R. R. Co. v. Adams, 46 Ark. 159; Ry. Co. v. B’Shears, 59 Ark. 243, 27 S. W. 2.”

I would reverse the decree of the lower court and hold the appointment of appellant valid.

I am authorized to state that Byrd, J., joins in this dissent.

      There is no clear definition of just what these are. Section 7-201 (Act 1 of 1943) mentions certain boards therein designated as honorary. What common understanding would encompass within the limitations of “honorary” boards and commissions is doubtful. It has been suggested that “honorary” boards and commissions are those whose members only receive a per diem instead of a salary. This does not fit the definition of “honorary” as given in Black’s Law Dictionary.

      Appellee admits that § 1, read in isolation, appears to be applicable generally.

      These cases were decided before the constitutional prohibition against local and special legislation was adopted.

      It is interesting to note that this provision has been changed so that three successive regular meetings must be missed instead of only two in order to create a vacancy and to eliminate part of the penalty for participation in unauthorized closed meetings. The Governor’s discretionary power of removal for absence remains the same. Act 66 of 1961.

      Act 235 of 1967 clearly recognizes that there have been gubernatorial appointments where Senate confirmations were not required.

      This is clearly a vacancy by death, resignation or removal, as defined in Justice v. Campbell, 241 Ark. 802, 410 S. W. 2d 601, or as provided by statute.

      Under both this construction and that of the chancellor, the Governor would have to submit the name of a proposed appointee to fill a vacancy occurring on the 20th day on that same day. While this might not seem logical, we are only to choose a logical construction when an act or provision is capable of more than one construction.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    CLYDE CAMPBELL UNIVERSITY SHOP and Don Hambrick v. CAMPBELL-BELL, INC., d/b/a University Shoe
    5-4387
    422 S. W. 2d 875
    Opinion delivered January 22, 1968

      E. J. Bell and James W. Qallman, for appellant.

      Murphy & Burch, for appellee.
   Paul Ward, Justice.

Involved in this litigation is the use of a trade-name. The issue and the pertinent facts involved are sufficiently stated in the pleading which are now summarized.

The Complaint, filed on September 21,1966, by ap-pellee — Campbell-Bell, Inc. d/b/a University Shop, in essence states:

a. It is a domestic corporation doing business in Fayetteville for the past six years under the name of “University Shop”, situated at 643 Dickson St. — on the University Campus — selling men’s clothes.
b. Appellant — Clyde Campbell University Shop— is a non-resident corporation doing a similar business in Fayetteville under the name of “Clyde Campbell University Shop”, situated at 613 Dickson St. — on the University Campus. It began doing business on August 15, 1966.
c. Appellant adopted and used its name “with the intent and for the purpose of defrauding the plaintiff and appropriating for their own use and benefit the goodwill of plaintiff’s business and to delude and deceive the plaintiff’s customers and the public in general into the belief that the business of the defendants was in fact a new location or extension of plaintiff’s business”. In the alternative, if appellant did not so intend, their actions caused the same result.
d. Because of the manner and length of time in which appellee has conducted and advertised its business under the name of “University Shop” that name has acquired an exclusive identification with appellee’s business, and has acquired a “secondary” name and meaning. As a result of appellant’s actions and the similarity of the two names, the public and customers of appel-lee have been misled to the damage of appellee’s profits and business.
e. Wherefore plaintiff (appellee) prays that appellant be enjoined and restrained from using the name “University Shop” or “Clyde Campbell University Shop”.

Appellants’ answer, filed October 7, 1966, is set out below in material parts.

a. Denies they intended to, or did, infringe on any alleged rights of appellee.
b. Appellant operates nnder its corporate name chosen long before doing business in Fayette-ville; it operates four other shops under said name at different places (in Texas); “University Shop”, as the designation of a store, is prevalent over the country and such use denotes the location of said shop near a university; appellant has scrupulously avoided any advertising or act that might lead to confusion of the public as to the separate identities of appellant and appellee.

After a full hearing, at which several witnesses for both sides gave oral testimony and numerous exhibits pertaining principally to newspaper advertisements were introduced the trial court, on February 1, 1967, entered a decree enjoining appellant “from using the term ‘University Shop’ in their trade-name, advertising, telephone listings, signs or other designations pertaining to ... its place of business located in the City of Fayette-ville ’ ’.

At the close of all the testimony the trial court made exhaustive findings of fact and conclusions of law covering seventeen pages in the transcript. Believing it will tend to abbreviate references to the testimony introduced and the various issues raised, we hereafter refer briefly to portions of said findings.

a. The basic underlying note of the infringement —on trade-name cases — is that it simply is not basically a fair thing; it just isn’t right for a business man to engage in business under a name which is so nearly similar to the name used by another business man that the general public is likely to be confused or misled.
lb. The first question is, does the proof in this case show such a similarity of names as to cause confusion of identities?
e. The next question is whether the name of ap-pellee is of such nature that it should he protected. This calls for a distinction between the theory of secondary meaning and generic terms. Sometimes even generic words may acquire a secondary meaning.
d. Another question then is whether the term “University Shop” or the single word “University” has a secondary meaning under the facts in this case. If the facts so show, “then the right to relief is well established”.
e. After detailing essential parts of the testimony the court states: “I think there is ample evidence to show that defendants were put on notice; that they were knowingly opening up a business which might well lead to this very thing .... The preponderance of evidence shows appellee is entitled to the relief sought.”
f. The defendant is enjoined from the use of the word “University” in any part in any or all parts of its business operation in Fayetteville. This means, as a practical matter, that it may no longer use the total term “University Shop”.

A careful examination of the record leads us to conclude that the findings of the trial court are supported by the weight of the testimony, and that the conclusion reached must be affirmed. The weight of the testimony fully establishes: Appellee began business at its present-location on Dickson Street, under the name “University Shop”, six years before this suit was filed; During this period the name (in Old English) has been used in advertising; Appellant, being aware of the above facts and having been warned by appellee of the similarity of names established its store on. the same street and very close to the location of appellee; Appellant used the same old English style of lettering in-its advertisements ; Because of these similarities there was an actual confusion in the delivery of mail and the- payment of bills; Exhibits of newspaper advertisements show a striking similarity in lettering and form.

Some of the general rules applicable to this situation were quoted in Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S. W. 2d 28, as follows:

“ ‘An infringement on a trade name is such a col-orable imitation of the name that the general public, in the exercise of reasonable care, might think that it is the name of the one first appropriating it. Where such a similarity occurs, it tends to divert trade from a business rival who has previously adopted its name and operates as a fraud which may be restrained by injunction, although the prior user may not have an exclusive right to the use of the name.’ ”

Appellant ably contends that “University” is a word commonly used by the general public and cannot, therefore, be exclusively appropriated by anyone as a trade-name. It must be conceded that, ordinarily, such contention has merit. However, our decisions and others hold that, under some circumstances, such a common word can acquire a “secondary” meaning which entitles it to a protection as a trade name. It was so held in the Adkins case, supra.

In the cited case appellee established retail grocery stores in the vicinity of Little Bock and North Little Bock, under the trade-name “Liberty Home Stores”. —Five years later appellant announced its intention to establish and operate a grocery store on West Capitol Avenue in Little Bock under the trade-name of “Liberty Cash Groceries, Inc.”. Appellee sought to enjoin appellant, and was sustained by the trial court. On appeal, this Court, in affirming the trial court, made certain statements which are copied below:

Appellant’s contention for reversal is that the use by appellant of the word ‘Liberty’ as a part of his trade-name is not descriptively similar to ap-pellee’s trade-name, and that the word ‘Liberty’ is a common word of general use, and appellees have no legal right to its exclusive use. Our case of Fine v. Lockwood, 179 Ark. 222, 14 S. W. (2) 1109, is cited by appellant as decisive of the contention urged. We can not agree that the case cited controls the case under consideration. There appellant had not operated a store under his trade-name prior to the institution of the suit in that trade territory. . .
Here the testimony reflects, and the chancellor so found, that appellees had operated their respective grocery stores in the vicinity of Little Bock and North Little Bock for some five or six years under the trade name of ‘Liberty Home Stores’, and that the trade name of ‘Liberty Home Stores’ had thereby acquired a distinctive secondary meaning in the trade territory in the vicinity of Little Bock and North Little Bock”.

Based on the facts involved, and considering the findings of the trial court, we are unable to distinguish the Adkins case from the one here presented.

Appellant, for a reversal, rely on Fine v. Lockwood, 179 Ark. 222, 14 S. W. 2d 1109, and Save-A-Stop, Inc.; v. Save-A-Stop, Inc., 230 Ark. 319, 322 S. W. 2d 454 The Fine case was distinguished, as above noted, in the Adkins case. The other case is clearly distinguishable on the ground (as noted in the case) that both parties were engaged in the wholesale business as opposed to retail.

Affirmed.


author: Lyle Browít, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Tommy LEWIS et al
    5-4268
    422 S. W. 2d 866
    Opinion delivered January 22, 1968

      John R. Thompson and Joe T. Gunter, for appellant.

      Guy H. Jones and Clark, Clark & Clark, for ap-pellees.
   Lyle Browít, Justice.

Mr. and Mrs. Tommy Lewis, appellees, own a 320-acre tract of land which abuts the industrial park of Conway, Arkansas, on two sides. Seventy-nine acres of that tract were condemned by appel-lee, Arkansas State Highway Commission, for the construction of Interstate Highway No. 40. 1-40 runs approximately north and south through the entire acreage. The landowners were awarded a substantial verdict but the amount is not here questioned. The Commission seeks a reversal because of five alleged procedural errors. Those points will be numbered, italicized, and discussed in sequence.

1. The trial court erred in refusing to strike the testimony of appellees’ expert witness, C. V. Barnes, relating to damages to 95 acres of appellees’ land east of Interstate 40. Appellees’ land prior to the taking consisted of an integral tract. The taking resulted in a division of the single tract into three parcels. In the northwest corner, adjacent to the Conway Industrial Park, is 6.6 acres left isolated from the balance. To the southwest, and adjoining the park area, is a tract of approximately 143 acres. On the east side of Interstate 40 is a tract consisting of 95 acres. Barnes testified that the latter tract was “severed” by the highway; that its division had destroyed that tract’s value for industrial use; railroad and other utility service would no longer be available for that tract; that its highest and best use was reduced to agricultural purposes. The change in the “use” classification, according to Barnes, resulted in a considerable reduction in market value of the 95-acre tract.

The highway department objected to the testimony on the ground that Barnes was testifying to an element of “special damages” and those damages had not been pleaded. Insofar as damages are concerned, an answer is not required in eminent domain proceedings unless the landowner expects to claim special damages. Railway v. Hunt, 51 Ark. 330, 11 S. W. 418 (1888).

When the integrity of an individual tract as a unit is diminished by partial taking it is fundamental that the diminution is a proper element for consideration in ascertaining just compensation. It is commonly referred to as “severance damages.” United States v. 26.81 Acres of Land, 244 F. Supp. 831 (1965). The partial taking of an integral unit would logically put a con-demnor on notice that an injury to the whole may well be contemplated. Railway v. Hunt, supra. It is a guide commonly used by appraisers in determining “before and after values.” Young v. Arkansas State Highway Comm’n., 242 Ark. 812, 415 S. W. 2d 575 (1967).

We conclude that where the condemnation involves the partial taking of an integral unit of land the diminution in value of the residual is not to be classified as “special damages.”

The Highway Commission cites one authority to support its theory. That is Bradley v. Keith, 229 Ark. 326, 315 S. W. 2d 13 (1958). Both Bradley and Keith claimed title to the same tract of condemned property. At a preliminary hearing, with all parties present, the value of the land was stipulated. The money was placed in the court registry to be held subject to a determination of ownership. The cause was placed on the regular docket. Only Bradley filed a pleading. Keith did not appear for a hearing of the matter on its merits. The court ruled that Keith was entitled to reimbursement for the cost of his tax deed and Bradley was awarded the balance. Keith later persuaded the court to set aside the judgment for unavoidable casualty. This court held that in an eminent domain proceeding in which two parties are contesting for the title to the condemned property, it is necessary that both parties set forth their contentions in the form of a timely answer. An excerpt from American Jurisprudence was cited merely to show that there are some exceptions to the general rule that a landowner is not required to file an answer in a condemnation proceeding.

II. The trial court erred in refusing to grant appellant a continuance of one week on the basis of surprise. Appellant moved for a continuance of one week on the ground that it was surprised by the “special damages” testimony of C. V. Barnes. We know of no reason why appellants should' not have logically anticipated Barnes’ testimony and have prepared itself to rebut it. Moreover, the trial court did stop the- trial and recess from Monday until the following Wednesday. When the trial resumed, appellant produced three appraisers. Part of the testimony of each of those appraisers was in refutation of Barnes’ evidence of diminution in value of the 95-acre tract.

III.It mas error to allow the landowners to amend their answer after the trial began a/nd in refusing appellant’s motion for a continuance to respond to appellees’ amended pleadings. These salient facts are fatal to appellant’s contentions:

1. The amended answer is not abstracted; appellant’s brief does not even give a transcript page-reference to the amendment; it is not indexed in the transcript.

2. Appellant’s motion for a continuance is not abstracted; if any proof was offered in support of the motion it is buried in a transcript consisting of 674 pages; it is not listed in the transcript index.

This court has on innumerable occasions cited the importance of compliance with Rule 9 (d) pertaining to the necessity of abstracting the record. As the work of the court continues to rise in volume, the need for abstracting the one record (transcript) that is filed here increases in significance. Point III will not be considered.

IV. The trial court erred in overruling appellant’s motion for a mistrial. No such motion is abstracted. An argument consisting of one sentence appears in appellant’s brief. The argument makes no transcript reference.

V. On motion of appellant, the trial court should have disqualified himself and quashed the jury panel. Again, no snch motion is abstracted. Six pages of appellant’s brief are devoted to argument on.the point. Neither the abstract nor the argument contains a single reference to any testimony in support of the point. The contention must meet the same fate as Points III and IY.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    Martha FOUNTAIN, Adm’x v. CHICAGO, R. I. & P. RY. et al
    5-4410
    422 S. W. 2d 878
    Opinion delivered January 22, 1968

      James C. Gall, for appellant.

      Wright, Lindsey & Jennings and William B. Over-ton, for appellees.
   Lyle Brown, Justice.

This is a wrongful death case brought by appellant, Martha Fountain, Administratrix of the Estate of Johnnie 0. Thompson, deceased. Ap-pellees, Chicago, Rock Island & Pacific Railway Company, and its employee, successfully moved to strike all claims for pecuniary benefits and mental anguish. Thompson was survived by his mother and several brothers and sisters. The principal ruling of the trial court here attacked is that the death of the mother, which shortly followed the fatal accident to her son, extinguished any possible recovery for mental anguish.

Johnnie 0. Thompson, 54 and single, was employed by Magnet Cove Barium Corporation. While unloading ore from a Rock Island car, he was struck by a metal crank attached to the car and alleged to be defective. The injury proved fatal. Suit was brought by the ad-ministratrix. The elements of damage alleged were: (1) pecuniary benefits for Thompson’s dependent mother and sister, ages 87 and 62 years, who lived in his household; (2) mental anguish suffered by the mother and sister, as well as other brothers and sisters not members of his household; and (3) expenditures by the estate.

The defendants moved to strike those elements of recovery described in (1) and (2) and alleged: (a) at the time of Thompson’s death, his mother was the only “heir and next of kin” within the meaning of the wrongful death statute; (b) that shortly after the fatal accident and before suit was filed, the mother died and her cause of action abated; (c) that Thompson did not stand in loco parentis to the mother and sister of his household; and (d) that the brothers and sisters were not entitled to recover for mental anguish. The trial court sustained the motion to strike and left only the claim for the benefit of the estate to be litigated.

First, we dispose of the contention of the admin-istratrix that pecuniary loss to, and mental anguish of, the mother are proper elements of recovery. Those rights abated with the death of the mother. Jenkins, Admr. v. Midland Valley R. R., 134 Ark. 1, 203 S. W. 1 (1918).

We next consider that point of the administratrix which, in substance, asks us to overrule, in part, Peugh v. Oliger, Admx., 233 Ark. 281, 345 S. W. 2d 610 (1961). With reference to recovery for mental anguish, Peugh holds recovery to be limited to the enumerated relatives who are also heirs at law.

Decisions from other jurisdictions are of no aid because their statutes allowing mental anguish are distinctly different from our Act 255 of 1957 (Ark. Stat. Ann. §§ 27-906-10 [Repl. 1962]). The significant difference is that, for the most part, other statutes list the relatives in classes, with the priority of each class established. We do point out that our Act 255 was originally drafted by a committee of the Arkansas Bar Association and was adopted with some modification by the Legislature. There was available to that committee the statutes of those states which then allowed recovery for mental anguish. Nevertheless, the bar committee elected to place the beneficiaries in a single group. That fact is of some significance in determining legislative intent.

In analyzing Act 255 we find these three points persuasive :

(1) The Legislature listed all beneficiaries in a single group, specifying no priority of one beneficiary over the other.;
(2) The interpretation in Peugh v. Oliger does not allow all the named beneficiaries to recover for their mental anguish. That decision did treat a foster daughter as an heir at law for purposes of the mental anguish statute and permit her to recover. But in placing that daughter in the category of next of him, this court reversed a modest recovery for mental anguish awarded to a sister of the deceased. It was held that both could not recover. Mrs. Drake, the 71-year-old surviving sister of the deceased, according to the evidence, was so distraught that she required constant attention for a considerable time after the accident which was fatal to her only living sister. They had been close neighbors for forty years and saw each other almost daily. When they moved a short distance apart they saw each other weekly and talked on the telephone. The foster daughter had been married since 1934 and for several years immediately prior to her foster mother’s death the foster daughter lived 165 miles distant. We have no quarrel with the allowance to the foster daughter, although that recovery was permitted by a novel construction of the statute. However, we think an interpretation of Act 255 Avhich would deny recovery to Mrs. Drake is contrary to the intent of the Legislature. Her mental anguish could well have been as great, or greater, than that of the foster daughter.

The evidentiary situation just recited, as between Mrs. Drake and the foster daughter, leads us to a conclusion so well stated in 18 Ark. L. R. 166 (1964): “This provision has been narrowly construed by the Arkansas Supreme Court, however, so as to effectively prevent recovery for mental suffering in some cases. As a result, the mental anguish provision of the statute loses much of its vitality .... A more liberal approach to the wording of the statute would be consistent with the expressions of the legislature.”

(3) Finally, we are persuaded by the reasoning in the dissenting opinion. in Peugh and we hereby adopt that opinion bv reference.

Reversed and remanded.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. While strong arguments can be, and were, advanced that the decision in Peugh v. Oliger, 233 Ark. 281, 345 S. W. 2d 610, was not correct, I dissent from the action of the majority because I do not believe that previous decisions construing a statute should be so lig'htly overruled. The Peugli decision was made in March of 1961. The General Assembly has met in three regular sessions since that time without changing Act 255 of 1957 [Ark. Stat. Ann. §§ 27-906-27-910 (Repl. 1962)], the statute allowing recovery for mental anguish in wrongful death cases. The construction of that statute by this court became a part of the law. In Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. 2d 406, this court said:

“When the court construed the Act of 1927 in question, such construction became as much a part of the statute as if written in it.”

Perhaps we can still have the necessary certainty, stability and predictability in our law without being shackled by an inflexible adherence to the doctrine of stare decisis. But I submit that when a statute meant one thing yesterday, it should not mean something else today. The overruling of this statutory construction seems to me to be a vehicle of injustice rather than justice. Who can say how many claims for mental • anguish now recoverable under today’s definition have become barred by the statute of limitations while this case has been pending? How many hundreds of claimants have been advised by their attorneys that they had no claim for damages for mental anguish in wrongful death cases since March 1961? How many dozens of times have circuit judges directed verdicts of non-liability for mental anguish damages or refused to submit mental anguish as an element of damages in cases tried before them since the decision in the Peugh case? There should be enough certainty and predictability of judicial action that litigants, attorneys and judges can act with a reasonable degree of assurance that they can rely on clear precedent. The alternative would clog our judicial system with an insurmountable burden. For example, a litigant could only be sure he is barred from a recovery by pursuing a case to the court of last resort, an attorney could only indulge in rank speculation in advising- a client and a trial judge might well resort to a system of ad, hoc decisions applying the law as he might feel it ought to he in any particular case on any particular day.

Nothing has changed since March 20, 1961, the date of the prior decision, except the personnel of the court.

I repeat, we, as well as any trial court, or any litigant, should be bound by a definition of terms this court has given to the words of a statute, particularly when the law-making branch of the government has not attempted to correct or change that definition. Since the construction in Peugh v. Oliger, supra, became as much a part of the statute as if written into it, this court has acted legislatively in changing the meaning of its words.

I would affirm the judgment of the lower court.

I am authorized to state that Harris, C. J., joins in this dissent.


author: John A. FoglemaN, Justice.

text:
    Carl WIDMER v. STATE of Arkansas
    5295
    422 S. W. 2d 881
    Opinion delivered January 22, 1968

      Carl Widmer, petitioner, pro se.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for respondent.
   John A. FoglemaN, Justice.

This is a petition for certiorari for review of the contempt conviction of Carl Widmer in the Sebastian Circuit Court. Petitioner apparently has been one of the most prolific litigants in that court and has appealed numerous decisions thereof to this court. Mr. Widmer has elected to exercise his right to plead and present his own cases, saying that he cannot afford to employ an attorney. His conviction of contempt arises out of an irritating and indiscreet habit of filing a motion asking the trial court to vacate virtually every decision adverse to petitioner which is embodied in an order or judgment. This practice persisted until the trial judge wrote a letter to petitioner on April 24,1967. The reference title of the letter was: Carl Widmer v. Modern Ford Tractor Sales, et al, Sebastian Circuit No. 4776. With that letter, the judge returned to petitioner such a motion and stated his refusal to hear it. In the letter the judge reminded petitioner of previous admonitions by the court against his habit of filing these motions without regard to merit. Not only did the judge repeat previous directions to Widmer to desist from frivolous pleadings, but he emphatically reiterated that he did not want another of the motions he described as frivolous, unmerited and provocative. The judge specifically pointed out that his caveat included any motions by whatever title seeking to have the court revoke or ignore a former order. An express warning was given that petitioner would make himself subject to summary punishment for contempt for imposing on opposing counsel, the clerk, and the court and interfering with its business. Not only did the trial judge post this letter, but he gave the same warning to petitioner in chambers on the day the letter was dictated but before it was mailed.

In spite of this, petitioner filed just such a motion in the case of Carl Widmer v. Otis S. Tole, No. 4726, on May 5, 1967, seeking to have vacated an order of dismissal and praying a summary judgment for petitioner. On May 12, 1967, according to a certified copy of the court’s docket, petitioner was adjudged guilty of contempt of court and fined $50.00. Widmer paid the fine under protest in order to avoid incarceration for nonpayment.

Respondent questions the right of petitioner to a review of the proceedings because of his failure to include in the record a formal judgment. In all cases of criminal contempt there should be a judgment reciting a finding of the facts constituting the contempt. Davies v. State, 73 Ark. 358, 84 S. W. 633; Meeks v. State, 80 Ark. 579, 98 S. W. 378. Failure of the court to set forth the facts in its judgment does not void the proceedings, however, so the alleged contemnor must ask the court to so recite the facts or, in case of the court’s refusal, bring the facts into the record by bill of exceptions. Ex parte Chastain, 94 Ark. 558, 127 S. W. 973. The respondent has very graciously and in keeping with the sense of justice and fair play characteristic of the eminent trial judge, supplied all deficiencies by filing a complete transcript of the record and proceedings relating to petitioner’s conviction. Consequently, we must review the record to determine the propriety of the trial court’s action.

Petitioner has listed four points relied on by him for the granting of the writ. We deem it necessary to consider only the second one which is:

“Filing of motions or repeated motions in civil cases do not constitute contempt of court, so long as they do not contain any matter reflecting upon the integrity of the Court and are presented in a respectful maimer.”

Respondent urges that petitioner’s conduct was an attempt to resist, disobey, evade and prevent the execution of a lawfully entered pretrial order; an abuse of legal process tending to obstruct or impede the administration of justice; and an open flouting and flagrant disobedience of the trial court’s orders. The record reveals no direct evidence of these assertions except for a review of many such pleadings filed by petitioner.

The record further reveals that petitioner had been the plaintiff in at least 12 cases filed since January 1964, and the trial judge indicated that the petitioner was defendant in perhaps half as many. The judge also indicated that one or more motions for the court’s reconsideration of its orders had been filed in most of these cases and that petitioner had made a very liberal, if not excessive, use of requests for admissions and motions for summary judgments.

The philosophy governing petitioner’s procedural steps seems to be that if one makes persistent hyper-technical use of each pretrial step permitted by law, he will eventually emerge victorious in some case by windfall resulting from oversight by a careless opponent. It well may be that the numerous motions for reconsideration of the court’s rulings are dilatory.

We sympathize with the trial judge and can well understand how provoking and vexatious petitioner’s tactics must have been to this judge whose court had the second highest rate of termination of cases of any single-judge district in Arkansas in 1966. If every litigant pursued these same tactics, orderly disposition of litigation would be seriously impeded. Yet, the mere filing and presentation of a motion or of repeated, vexatious and dilatory motions do not constitute contempt of court, so long as they are not presented in a contemptuous or disrespectful manner and do not contain matter which is, of itself, contemptuous. Johnson v. State, 87 Ark. 45, 112 S. W. 143. As indicated in the cited case, the court may, in the exercise of its inherent powers, refuse to hear, or strike from the files, any motions which are presented not to subserve the ends of justice but for vexation or delay. We do not mean to imply that a trial court may not adopt reasonable procedural rules not in contravention of statute governing the filing of motions for reconsideration of actions by the court.

The petition is granted and petitioner’s conviction of contempt is quashed.

      See the Second Annual Report of the Judicial Department in Arkansas. In 1966, 8.69% of all cases terminated in the 18 judicial districts were handled in his district.

      There is doubt that this means physical removal from the files of a pleading in proper form, properly executed and verified, ' and not containing scandalous or impertinent matter. It could well be that any pleading filed should remain in the court’s files, at least as long as there is any possibility of the necessity for use thereof on appellate review. It seems likely that it is only intended that such a pleading be “stricken from the files” in the sense that it no longer constitutes a part of the record to be considered by the trial court. See 71 C. J. S., Pleading, § 609; 4A C. J. S., Appeal & Error, § 740.


author: J. Feed Jones, Justice.

text:
    Lucian LEE, Justice of the Peace, Morgan Township v. William D. WATTS et al
    5-4382
    423 S. W. 2d 557
    Opinion delivered January 22, 1968
    [Rehearing denied February 26, 1968]

      Penix & Penix, for appellant.

      Dudley & Burris, for appellees.
   J. Feed Jones, Justice.

This appeal questions the jurisdiction of a justice of the peace in the trial of misdemeanors in justice of the peace court in Morgan Township, Lawrence County, Arkansas, and also questions the jurisdiction of the justice of the peace to sit as justice of Mayor’s Court outside of the corporate limits of the town for whose mayor he acts.

Lucian Lee is a justice of the peace of Morgan Township in Lawrence County, and George Glenn is the mayor of the incorporated town of Lynn in said township. Justice of the peace Lee issued a warrant for Thomas D. Watts for reckless driving, a misdemeanor under state law, and fined Watts $50.00 and sentenced him to five days in jail. The jail sentence was suspended. The fine has not been paid and revocation of the suspended sentence is being threatened unless the fine is paid. Mayor Glenn has designated Mr. Lee as justice of the peace to sit in the mayor’s stead as justice of the Mayor’s court under the provisions of Ark. Stat. Ann. § 19-1204 (Eepl. 1956). Thomas D. Watts was arrested by the town marshal of the town of Lynn and charged with a separate misdemeanor under state law but apparently committed inside the corporate limits of the town of Lynn. He was brought before Mr. Lee as justice of the Mayor’s Court for trial at Mr. Lee’s home where he holds justice of the peace court, outside the corporate limits of the town of Lynn hut within Morgan Township.

The record is not entirely clear in this case, but it appears that when the town marshal of Lynn makes an arrest, he takes the defendant before justice of the peace Lee, who holds court as justice of the Mayor’s Court, and when the offense is committed outside the corporate limits of Lynn and the arrest is made by a deputy sheriff, constable, or some other officer, the defendant is taken before Mr. Lee who conducts court as a justice of the peace in the township. The violation of municipal ordinances is not involved here and it would appear that the only real difference in whether Mr. Lee sits as justice of the peace court or Mayor’s Court, has to do with the disposition or division of the fine money between the town of Lynn and Lawrence County. In any event, justice of the peace Lee holds both justice of the peace court and Mayor’s Court at his home outside the corporate limits of the town of Lynn.

William D. Watts, as father and next friend of Thomas D. Watts, filed a petition for prohibition in the Lawrence County Circuit Court prohibiting Mr. Lee from taking further action in the cases against young Watts for lack of jurisdiction in Mr. Lee, either as a justice of the peace of Morgan Township or as justice of the Mayor’s Court, for the reason that there is a duly constituted municipal court of county-wide jurisdiction in Walnut Ridge in Lawrence County. Prohibition was granted by the circuit court and Mr. Lee has appealed designating the following points for reversal:

“The Walnut Ridge Municipal Court never has had any jurisdiction in the former Western District, including Morgan Township.
“There is no Municipal Court in Walnut Ridge.
“Appellant was lawfully designated to act as Justice of the Mayor’s Court of the Town of Lynn.”

We fail to see any connection or conflict between the jurisdiction of the Walnut Ridge Municipal Court and the J. P. Court in Morgan Township or the Mayor’s Court in the town of Lynn. The record does not reveal what township Walnut Ridge is in, but we take judicial notice that it is in Campbell Township and not in Morgan Township. Consequently, the legality of the Walnut Ridge Municipal Court is a side issue not germane to the issues presented on this appeal and we do not pass on that question.

Municipal courts have jurisdiction over misdemeanors committed anywhere in the county, but such jurisdiction is exclusive of justice of the peace courts only in the township where the municipal court sits and not over the entire county.

In the case of Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301, in speaking of the jurisdiction of municipal courts, this court said:

“One of the matters of exclusive jurisdiction over that of Justice of the Peace of the township in which the municipal court is situated is that of misdemeanors committed therein.”

Again in a footnote to Cableton v. State, 243 Ark. 351, 420 S. W. 2d 534, in speaking of justices of the peace, we said:

“All have jurisdiction of misdemeanors except those in townships where Municipal Courts sit. Ark. Stat. Ann. § 22-709 (Repl. 1962) and §§ 43-1405, 43-1408 (Repl. 1964); Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301 (1948).”

Justices of the peace derive their jurisdiction partially from the constitution and partially from legislative enactment. Their original jurisdiction over criminal matters is derived from the Legislature. The Constitution of 1836, Article 6, § 15 defined the jurisdiction of justice of the peace and provided:

“Justices of the peace shall in no case have jurisdiction to try and determine any criminal case or penal offense against the State, but may sit as examining courts and commit, discharge or recognize to the court having jurisdiction, for further trial, * * *”

Article 7, § 40 of the present Arkansas State Constitution in setting out, limiting and defining the jurisdiction of the justice of the peace, provides:

“They shall have original jurisdiction in the following matters:
* * * third, such jurisdiction of misdemeanors as is now, or may be, prescribed by law; * * *”

The jurisdiction of municipal courts is provided for in Article 7, § 43 of the Constitution, as follows:

“Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.”

Thus it is seen that justices of the peace are invested with constitutional jurisdiction in certain civil matters and the Legislature is authorized to invest justices of the peace with criminal jurisdiction of misdemeanors. Municipal courts are not vested with constitutional jurisdiction at all, but the Legislature is authorized to invest

municipal courts with jurisdiction concurrent with justices of the peace in civil as well as criminal matters.

Ark. Stat. Ann. § 43-1405 (Repl. 1964), as it relates to jurisdiction over various offenses, provides:

“Fourth. City and police courts shall have exclusive jurisdiction of all prosecutions and actions for infractions of the by-laws or ordinances of the city or town in which they are located; and concurrent jurisdiction with the circuit courts and justices’ courts of prosecutions for misdemeanors committed in the town or city, and also concurrent jurisdiction in the cases provided by the special statutes creating or regulating such courts.
“Fifth. In criminal causes the jurisdiction of justices of the peace shall extend to all matters less than felony for final determination and judgment. Provided, circuit courts shall have jurisdiction concurrent with justices’ courts in all such cases and in all criminal or penal causes except where exclusive jurisdiction is given to city and police courts.”

Ark. Stat. Ann. § 22-701 (Repl. 1962) provides for the establishment of municipal courts in cities of 2,400 or more population. This statute provides as follows:

“All cities having a population of 2,400 or more according to the last official United States census and of cities that may hereafter attain a population á of 2,400 or more, and of counties, judicial districts of counties and townships withm which are situated any of such cities, and county seat towns with population less than 2,400 shall be subject to the provisions of this act; * * *” (Emphasis supplied).

The jurisdiction of municipal courts is set out in Ark. Stat. Ann. § 22-709, the pertinent part, insofar as this case is concerned, being as follows:

“The municipal courts shall have original jurisdiction coextensive with the county wherein the said court is situated over the following matters:
# # #
“Exclusive of justices of the peace in townships subject to this act and concurrent with the circuit court over misdemeanors committed within the county.” (Emphasis supplied).

Thus, in the case at bar, jurisdiction over the misdemeanor alleged against the defendant Watts, was in the justice of the peace of Morgan Township where the misdemeanor was committed and he was charged, and not in the municipal court of Walnut Ridge, which is located in Campbell Township. Had justice of the peace Lee been justice of the peace in Campbell Township where Walnut Ridge is located, or if Walnut Ridge had been located in Morgan Township where Mr. Lee is justice of the peace, then, and only then, would the municipal court of Walnut Ridge have exclusive jurisdiction in this case. Though municipal courts have district and county-wide jurisdiction over misdemeanors, that jurisdiction is only concurrent with that of justices of the peace in all townships in the county except in the township where the municipal court sits, and in that township the jurisdiction of the municipal court is exclusive of the jurisdiction of the justice of the peace in the trial of misdemeanors under the statutory provisions of § 22-709, supra.

By failure to request a change of venue to the nearest municipal court as he might have done under authority of Ark. Stat. Ann. § 22-725 (Repl. 1962), Watts waived any right he might have had to a trial in municipal court and his only remedy was by appeal and not prohibition.

As to the prosecution or trial of appellee by appellant sitting in the mayor’s stead as justice of the May- or’s Court. of the town of Lynn, Ark. Stat. Ann. % 19-1204 (Repl. 1954) provides in part:

‘ ‘ The Mayor of a corporation shall be a conservator of the peace throughout its limits, and shall have within the same all power and jurisdiction of a justice of the peace in all matters, civil or criminal, arising under the laws of the State to all intents and purposes whatever, and for crimes and offenses committed within the limits of the corporation, his jurisdiction shall be coextensive with the county, provided, that any mayor may designate, at such times as he shall choose so to do, any duly elected and qualified justice of the peace in the township to sit in the mayor’s stead as justice of the Mayor’s Court, and all fines and penalties assessed by the said Mayor’s Court in such case shall continue to be paid into the town treasury and the justice sitting in the stead of the Mayor shall charge and collect the same fees as justices of the peace are or may be allowed for similar service; the Mayor shall give bond and security in any amount to be ascertained and approved by the council; and the Mayor shall perform all duties required of him by the laws and ordinances of the corporation, and appeals may be taken in the same manner as from decisions of justices of the peace; he shall keep a docket and shall charge and collect the same fees as justices of the peace are or may be allowed for similar services and in addition therefor for his services as Mayor, the Town Council may by ordinance make proper allowance for and payment of the same. ...”

Ark. Stat. Ann. § 19-1201 (Supp. 1965) requires the mayor to reside within the limits of the corporation.

The territorial jurisdiction of a Mayor’s Court is limited to offenses committed within the limits of the jurisdiction of such courts, as prescribed by the statutes creating or regulating them. Ark. Stat. Ann. § 43-1409 (Repl. 1964). Ark. Stat. Ann. § 19-1204 (Repl. 1956) provides that “the Mayor of a corporation shall be a conservator of the peace throughout its limits, and shall have within the same all power and jurisdiction of a justice of the peace in all matters, civil or criminal, arising under the law of the state, . . . and for crimes and offenses committed within the limits of the corporation his jurisdiction shall he coextensive with the county... (Emphasis supplied). We interpret this statute to mean that the Mayor’s Court can sit only inside the city limits hut has powers of process extending throughout the county.

We find no statutory requirements designating any particular place for holding justice or Mayor’s Court, hut in connection with this point, 21 C. J. S., Courts, § 164 at p. 253-4 states:

‘ ‘ Constitutional and valid statutory provisions designating the place for holding court or terms or sessions thereof will he accorded effect, they being mandatory and exclusive of other places; and where the place is so fixed the court cannot lawfully be held at any other place.
# * *
“Where no place for the holding of a session is prescribed by statute or otherwise, it may he held, at the discretion of the judge or judges authorized to hold it, anywhere within his or their territorial jurisdiction. ’ ’

In 62 C. J. S., Municipal Corporations, § 322 at p. 671, it is stated:

“Since the authority of the municipality and the binding effect of its police regulations are merely coextensive with the city limits, as discussed supra § 141, an action or proceeding instituted for the enforcement or punishment of a violation of cm ordinance must he brought before a properly authorized and constituted tribunal sitting within the territorial limits of the municipality.” (Emphasis supplied).

We conclude from the wording of statutes and authorities, supra, that a mayor, sitting in a Mayor’s Court, must sit inside the city limits, but has powers of process throughout the county. It follows, therefore, that a justice of the peace legally sitting in the mayor’s stead, would have no greater authority or broader venue for holding Mayor’s Court than the mayor himself would have. If the law were otherwise, there would be no reason for the mayor to designate a justice of the peace to hold Mayor’s Court except for infractions of municipal ordinances, since the mayor and the justice of the peace have concurrent jurisdictions over misdemeanors in violation of a state law committed in the town. Both the justice of the peace and the mayor are limited to the territorial boundaries of their jurisdictions in holding their separate courts.

The trial court erred in granting the writ of prohibition as to the judgment of $50.00 fine and suspended jail sentence entered by the justice of the peace of Morgan Township, and in this the circuit court judgment is reversed.

The trial court did not err in prohibiting the justice of the peace from holding justice of the Mayor’s Court of the town of Lynn outside the corporate limits of the town of Lynn, and on this point the judgment of the circuit court is affirmed.

Affirmed in part, reversed in part.