author: Ed. F. McFaddin, Associate Justice. Sam Robinson, Associate Justice, Jim Johnson, Associate Justice,

text:
    Parkin Prtg. & Stat. Co. v. Ark. Prtg. & Litho. Co.
    5-2692
    354 S. W. 2d 560
    Opinion delivered February 26, 1962.

      Méhaffy, Smith <& Williams, by Pat Mehaffy, Herschel H. Friday, Jr., and Robert V. Light, for appellant.

      Spitzberg, Bonner, Mitchell and Hays, by H. Maurice Mitchell and Allan W. Horne, for appellee.

      J. Frank Holt, Attorney General, by Jack Holt, Jr., Chief Asst. Attorney General, for cross appellees Orval E. Faubus, et al.
   Ed. F. McFaddin, Associate Justice.

This litigation concerns Article 19, Section 15, of our Arkansas Constitution, which reads:

“All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of Government, shall be furnished and the printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.”

At the outset, we identify some of the persons and companies whose names appear herein:

(a) Appellant Parkin Printing & Stationery Company (hereinafter called “Parkin Company”) is an Arkansas corporation engaged in the printing and stationery business. Parkin Company is a family corporation, with 2,226 shares of capital stock outstanding, of which amount Harry W. Parkin (President of the corporation) owns 980 shares, and the remaining shares are owned by Mr. Parkin’s sister, brother-in-law, mother, and wife; and that stock situation has existed since January, 1957.

(b) Harry W. Parkin is, and has been since 1957, a member (and now Chairman) of the State Highway Commission of Arkansas, having been appointed and confirmed for a 10-year term in accordance with Amendment No. 42 to the Arkansas Constitution, which is the organic law creating the State Highway Commission.

(c) Cross-appellees are the Governor, Secretary of State, State Treasurer, and State Auditor.

(d) The appellee Arkansas Printing & Lithographing Company (hereinafter called “Arkansas Printing Company”) is an Arkansas corporation engaged in the printing and stationery business in competition to Parkin Company.

(e) The Arkansas Stationery & Furniture Company is a subsidiary corporation wholly owned by the Arkansas Printing Company and will sometimes be referred to under that name.

(f) Keith J. Arthur is an individual taxpayer and citizen of the State of Arkansas.

In accordance with <§> 14-301 et seq. Ark. Stats., the Secretary of State duly advertised for bids on contracts of printing and supplies for the biennium beginning July 1, 1961 and ending June 30, 1963. Several scores of separate contracts were to be awarded. Parkin Company was the low bidder on fifteen of the contracts, which were awarded to it on July 11, 1961, with all legal requirements observed, i.e., the signing of the contracts and the approval by the designated State Officials. The performance bonds of the Parkin Company on the fifteen contracts were signed by Harry W. Parkin as guarantor.

On November 24, 1961, Arkansas Printing Company and its subsidiary company, and Keith J. Arthur, as a citizen and taxpayer, filed this suit in the Pulaski Chancery Court against Parkin Company and the four State Officials, alleging that all of the fifteen contracts awarded Parkin Company ‘ ‘. . . are void as contracts on behalf of the State of Arkansas because they are in violation of the Constitution of the State of Arkansas. Harry W. Parkin is and was at all times mentioned herein the president and a principal stockholder of the defendant Parkin Printing-& Stationery Co. Said Harry W. Parkin is also a member and the chairman of the Arkansas State Highway Commission. Under Amendment No. 42 to the Constitution of the State of Arkansas, said Highway Commission is ‘vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.’ As chairman of said commission, Harry W. Parkin is the highest ranking member and officer of the State Highway Department, a department of the government of the State of Arkansas. Section 15 of Article 19 of the Constitution of the State of Arkansas provides in part ‘No member or officer of any department of the government shall in any way be interested in such contracts . . .’ ”

The four State Officials, appearing by the Attorney General, filed a general denial. The Parkin Company, after admitting some allegations as to the status of officials, denied all other material allegations of the complaint. Upon issues joined, the cause was heard by the Chancery Court on evidence ore tenus and resulted in a decree finding and declaring the said fifteen contracts awarded the Parkin Company to be void as in violation of Article 19, Section 15, of the Constitution. Prom that decree Parkin Company has appealed, urging two points. There is also a cross-appeal: the Arkansas Printing Company alleged that its subsidiary was the next lowest bidder on Contract No. 40 awarded to Parkin Company and prayed that the State Officials be required to award Contract No. 40 to Arkansas Stationery & Furniture Company as the next low bidder. Such relief was refused, and from that portion of the decree the Arkansas Printing Company and its subsidiary have cross-appealed.

As we stated at the outset, this opinion requires a study of Article 19, Section 15, of the Arkansas Constitution, which section consists of two sentences. The first sentence identifies certain items for contract letting. These are stationery, printing, fuel, binding, furnishing and repairing the halls and rooms of the General Assembly, etc. As to the contracts on these items identified in sentence one, there is this clear prohibition in sentence two: “No member or officer of any department of the government shall in any way be interested in such contracts. . . .” Just why the framers of the Constitution selected the items in sentence number one is of no concern. The fact remains that the Constitution named these items definitely and clearly and there is no denial that all of the fifteen contracts awarded to Parkin Company contain items specified in sentence number one. The defense of Parkin Company is that sentence number two does not apply to Harry W. Parkin for the reasons hereinafter to be considered.

The fact that the Parkin Company which received the fifteen contracts is a corporation and a separate entity from Harry W. Parkin, the individual who is a member of the Highway Commission, is a distinction of no consequence, and is not even relied upon by Parkin Company in this case. Our holding in Peoples Savings Bank v. Big Rock Stone Co., 81 Ark. 599, 99 S. W. 836, eliminates any such “separate entity” defense. In the cited ease, Mr. Lenon as Mayor of Little Rock was President of the Board of Public Affairs which let paving contracts and determined performance thereof; and Mr. Lenon was also a stockholder and President of the Peoples Bank. Torbert held a contract from the City of Little Bock for paving, and in obtaining a loan from Peoples Bank, Torbert made an assignment of his claim against the City on the contract. In deciding the case, Judge Biddiek said:

“The only question in this case is whether it is against public policy to permit a bank, of which- the mayor of a city is a stockholder and president, to take an assignment of the claim of a contractor against the city for the price of work which he has performed for the city, and which work must be inspected and accepted for the city by a board of which the mayor is chairman.”

And the question was answered by the Court in this language:

“By this assignment the mayor, as president and stockholder of the bank, became interested in a contract, the work done under which he, as member of the board of public affairs, had to approve and accept for the city. The statute, declares that all such contracts ‘shall be utterly null and void,’ and this is only a restatement of the rule of the common law. Such contracts being illegal, no court can enforce them, for to do so would be for ‘the law to aid in its own undoing.’ Berka v. Woodward, 125 Cal. 119, 45 L. R. A. 420; Melliss v. Shirley Local Board, 16 Q. B. Div. 446; Brown v. Tarkington, 3 Wall (U. S.) 377; Oscanyan v. Winchester Arms Co., 103 U. S. 261; 15 Am. & Eng. Enc. Law (2 Ed.) 971.”

With all the above explanation, we come to the insistence of Parkin Company that Harry W. Parkin is not a member or officer of “any department of the government” as those words were understood and meant in the Constitution. Parkin Company points out that in Article 4, Section 1, the Constitution provides:

“The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another”;
that Article 5, Section 1, describes the legislative ; that Article 6, Section 1, describes the executive; and that Article 7, Section 1, describes the judicial department. The appellant insists that the State Highway Commission is not in any of these three departments of government and so Harry W. Parkin is not a member of “any department of the government.”

We cannot agree with appellant in this very adroit argument which, if accepted, would permit the Legislature to create an agency not in any department and thereby make such agency exempt from Constitutional restraints. This novel and intriguing argument apparently overlooks the fact that our present State Highway Commission was created by Amendment No. 42 to our Constitution, which amendment was proposed by the General Assembly (under Article 19, Section 22 of the Constitution), and adopted by the People.in the General Election in November 1952. Section 1 of the Amendment No. 42 provides:

“There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.”

The quoted languáge says that the State Highway Commission shall have charge of the “State Highway Department.” So, if the Highway Department is not a subdivision of the Executive Department (as it is), then the People have created a fourth department of government. The People who adopted the Constitution in 1874 reserved the right to amend it; and if they wanted to create a fourth, fifth, or sixth department of government, they had and have the right to do so. And all such newly created departments would necessarily come within the purview of Article 19, Section 15, because an Amendment to the Constitution becomes a part of the whole document for the purpose of uniform construction. (Cooley on Constitutional Limitations, 8th Ed. p. 129.) So even if the Highway Department should not be a sub-department of the Executive Department (and that is what it is, just as the Bank Department, the Insurance Department, and other departments or branches are sub-departments of the Executive Department), still the use of the word “Department” in Amendment No. 42 would bring the officers of the Highway Department within the purview of Article Í9, Section 15.

We held in State Highway Comm. v. Nelson, 191 Ark. 629, 87 S. W. 2d 394, that a suit against the State Highway Commission was a suit against the State. That Harry W. Parkin is an officer of the State cannot be gainsaid when his appointment was confirmed by the Senate as provided in Amendment No. 42; he took the Constitutional oath of office (Ark. Const. Art. 19, Sec. 20); and then also took the special oath of office required of State Highway Commissioners (§ 76-215 Ark. Stats.). So we conclude that Harry W. Parkin was a “member or officer of any department of the government’' within the purview of the inhibition contained in Article 19, Section 15 of the Arkansas Constitution.

The appellant insists that by Act of November 28, 1874, the Legislature made a contemporaneous interpretation of Article 19, Section 15 of the Constitution, and that such contemporaneous construction should have great weight with this Court; and also that by other enactments over the years, the Legislature has made interpretations of this Constitutional provision. The appellant also insists that, over the years, the Executive Department has made interpretations of this Section 15 in that members of various Boards have dealt with the State, even in printing matters. The appellant argues that this Court should follow such Legislative and Executive interpretations, but we reject this argument of appellant. It is the duty of the Judicial Department to interpret the Constitution, and we cannot abrogate our duty by adopting interpretations made by either of the other Departments in conflict with plain language. Legislative and/or Executive interpretations are to be given consideration only when the Constitutional provision is ambiguous. (Cooley on Constitutional Limitations, 8th Ed. p. 149.) There is no ambiguity in the plain language which says: “No member or officer of any department of the government shall in any way be interested in such contracts . . .” The Constitution says what it means and means what it says, and we are sworn to follow it. The words of Chief Justice Hart in Hargraves v. Solomon, 178 Ark. 11, 9 S. W. 2d 797, are like a clarion call:

“"We are not concerned with the wisdom or expediency of the provision of the Constitution under consideration. Our duty is to carry out the provisions of the Constitution as indicated by its plain language. ’ ’

The appellant’s second point is that the “. . . policy of Arkansas does not prohibit a member of the State Highway Commission from holding and performing printing contracts let by the Secretary of State in a procedure prescribed by law and including competitive public bidding.” This second point becomes immaterial since all of the contracts must fall because of the Constitutional prohibition, and so the public policy argument becomes of no moment. Such was the view of the Chancery Court. "We do, however, desire to specifically point out that in affirming the decree we are merely concerned with the items specified in Article 19, Section 15 of the Constitution. As regards items not contained in that section, and as concerns relationship of board members selling such other items, we call attention to our case of Fiser v. Clayton, 221 Ark. 528, 254 S. W. 2d 315, in which members of one board were permitted to sell to other agencies. That holding resulted from statutory enactment, as distinguished from the Constitutional prohibition here presented. There is not the slightest indication of any irregularity, overreaching, or fraud in this ease. The bids were publicly opened and read, and the Parkin Company was the low bidder; and the saving to the State on the Parkin bid over the next lowest bidder is estimated to be more than $28,000.00 for the biennium. Everything was honest and above-board; but as aforesaid it is not for us to substitute our views against the plain wording of the Constitution.

Finally, we come to the cross-appeal of the Arkansas Stationery & Furniture Company. It was the next lowest bidder on Contract No. 40 awarded to Parkin Company and claimed that since the Parkin bid was void, the State Officials should have awarded Contract No. 40 to Arkansas Stationery & Furniture Company. The prayer was that the State Officials be required to make such award. The Chancery Court was correct in denying the prayed relief, since a petition for mandamus in the Chancery Court was not the proper remedy. Democrat Printing & Lithographing Co. v. Parker, 192 Ark. 989, 96 S. W. 2d 16; and Consumers Co-op. v. Hill, 233 Ark. 59, 342 S. W. 2d 657. With the Parkin contracts can-celled, there must be a new advertisement and submission of bids, and the Arkansas Stationery & Furniture Company will then have an opportunity to submit a bid.

Affirmed on direct and cross appeal.

Sam Robinson, Associate Justice,

dissenting. In holding that the Highway Department is a part of the executive department of government within the meaning of Article IV, Sec. 1 of the Constitution, the majority has read something into the Constitution that is not there. The majority points to no provision of the Constitution nor to any decision that supports the view that the Highway Department is a part of the executive department. On the other hand, we have a constitutional provision and decisions construing it supporting the position that the Highway Department is not a part of the executive department.

Article IV, Sec. 1 of the Constitution provides that the government of the state shall be divided into three distinct departments — the legislative, the executive and the judicial. We are not left in the dark as to the parts of government included in each department. The Constitution is specific and tells us in clear language just what each department shall consist of. As to what constitutes the executive department, Article VI, Sec. 1 of the Constitution provides: “The executive department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, all of whom shall keep their offices in person at the seat of the government and hold their offices for the term of two years and until their successors are elected and qualified, and the General Assembly may provide by law for the establishment of the office of Commissioner of State Lands.”

Thus, in clear language, the Constitution sets out in detail the various offices of the state that shall constitute the executive department, “all of whom shall keep their offices in person at the seat of government” and ‘‘hold their offices for a term of two years”.

The majority fails to point ont jnst how the Highway Commissioners will be elected every two years and how the Highway Department is to keep its “offices in person at the seat of government”. The Constitution in unambiguous language says the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General and Commissioner of State Lands and it may be fairly inferred that the secretaries, stenographers and office help of the members of the executive department constitute a part of that department, but the Constitution does not say that the Highway Department or the Highway Commissioners shall be a member of the executive department of government.

The majority suggests that if the Highway Department is not a part of the executive department, it is a fourth department of government by virtue of Amendment No. 42 to the Constitution. The answer to that is that the Highway Department was not created by the Amendment. It was created by Act 65 of 1929. It is an administrative agency of the Legislature just the same as the Public Service Commission is an administrative agency of the Legislature. In City of Ft. Smith v. Department of Public Utilities, 195 Ark. 513, 113 S. W. 2d 100, in speaking of the Department of Public Utilities, this Court said: “The Department is an administrative body created by the Legislature.”

Likewise, the Labor Department is an administrative agency. In Hickenbottom v. McCain, Commissioner of Labor, 207 Ark. 485, 181 S. W. 2d 266, the Court stated that the Legislature, acting under its police power, had created a large number of governmental agencies and departments such as the Department of Labor, Banking Department, State Board of Education, Basic Science Board, Fish and Game Commission, and State' Police Department. In the Hickenbottom case it is pointed out that the Governor, Secretary of State, Treasurer, Auditor, Attorney General, Land Commissioner and Lieutenant Governor constitute the executive department of government. Nothing is mentioned about the above named departments or the Highway Department or the Highway Commissioners being a part of the executive department.

Our Constitution was adopted in 1874. Since that time many administrative agencies have been created and this is the first time this Court has held that any administrative agency of the state is a part of the executive department of the government. Certainly the fact that the governor appoints members of the Highway Commission does not make such members a part of the executive department, any more than the appointment of a judge by the governor would make such judge a member of the executive department.

Applicable here is the language of the Court in Humphry v. United States, 295 U. S. 602, 7 L. Ed. 1611, 55 S. Ct. 869. There, in speaking of the Federal Trade Commission the Court said: “Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.” The same thing is true in the case at bar. Although the Highway Commissioners are appointed by the governor, their duties are performed without executive leave and in the contemplation of Amendment No. 42 they must be free from executive control.

Certainly the framers of the Constitution of 1874 did not intend that the prohibition in Article XVIY, Sec. 15 should apply to administrative agencies. In 1889, by Act No. 107 in respect to public printing, the Legislature treated “the presidents of the several Boards of Trustees of the State’s benevolent institutions at Little Bock and the president of the Board of Trustees of the State University at Fayetteville” as administrative agencies separate and apart from the legislative, executive and judicial departments of government.

In Oliver v. Martin, 36 Ark. 134, the Court.said: “The executive department of the state is expressly defined (our italics) by the constitution, Article VI, section 1. It consists of the governor, secretary of state, auditor, treasurer and attorney general. Subordinates in their several departments may be well enough said, also, to he of them.” It cannot be said that any member of the Highway Department or any of the Commissioners is a subordinate in any of the offices making up the executive department. Neither the governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, or Land Commissioner have any authority whatever over the Highway Department. They can give no orders regarding that department.

In my opinion, the ease of Farrell v. Oliver, 146 Ark. 509, 226 S. W. 137, is in point with the case at bar and cannot be distinguished in any reasonable manner. In the Farrell ease the issue was whether “the Boys Industrial School” and “Girls Industrial School of the-State of Arkansas” are a part of the executive department of government within the meaning of the constitution. The Court, speaking through Chief Justice Mc-Culloch said: “The Constitution defines each of the separate departments of State government. Section 1 of article 6 defines the executive department in the following language: ‘The executive department of this State shall consist of a Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, all of whom shall keep their offices in person at the seat of government ***.... In the case of Oliver v. Morton, 36 Ark. 134, it was held that ‘the executive department of the State is expressly defined by the Constitution, article 6, section 1. It consists of the Governor, Secretary of State, Auditor, Treasurer and Attorney General.’ ”

Judge McCulloch also said: “The definition is broad enough, as was said in Oliver v. Morton, supra, to embrace subordinates in the several departments, but by no reasonable stretch of the language can it include charitable institutions created by the Legislature and placed under the management of boards created for that purpose.” (our emphasis).

If the Boys and Girls Industrial Schools are not a part of the executive department within the meaning of the Constitution, to paraphrase Judge McCulloch’s language in the Farrell case, by no reasonable stretch of language can the Highway Department be classified as a part of the executive department.

The case of Fiser v. Clayton, 221 Ark. 528, 254 S. W. 2d 315, disposes of the public policy question. Section IV of Act 214 of 1943 provided: “Neither the Comptroller nor any member of his department, nor any officer, agent, or employee of any agency of the State making purchases shall be financially interested or have any personal beneficial interest, directly or indirectly in any contract or purchase order for any supplies, materials,, equipment used by or furnished to any department or agency of the State Government.”

In respect to the 1943 Statute this Court in the Fiser case said: “We dispose of the cases by holding that the language of § 4 is not sufficiently clear to justify us in saying that the legislative intent was to prohibit the member of one board or commission, officer, agent, or employee, from consummating commercial or business transactions with another agency; therefore there was nothing tangible to prohibit.” The Court also said: “Here we find the policy-declaring power operating directly and through express language upon members of the highway commission; but nowhere is there a suggestion that a commissioner shall not own stock in a corporation or be interested in an enterprise that sells to another department of the state.”

For reasons set out herein, I respectfully dissent.

Jim Johnson, Associate Justice,

dissenting. I dissent. In my opinion the majority is, by judicial decree, giving the Constitution of the State of Arkansas a meaning never dreamed of by .the framers of that great and sacred document. Often when I disagree with the majority view. I am content to merely register a dissent, but in cases involving fundamental principles of constitutional law, my conscience will not permit me to remain silent. This is such a case.

In this case, the majority has declared the contracts involved to be void on the basis of a provision of Article 19, Section 15, of the Constitution of the State of Arkansas, which, according to the majority, “says what it means and means what it says. ’ ’ This provision does not say and mean to me what it says and means to the majority; it has not said and meant to those in the Executive and Legislative branches over the last eighty-eight years what it says and means to the majority; and in my opinion, it did not say and mean to its adopters what it says and means to the majority. It is easy to say that particular words are not ambiguous when read in isolation, but different words mean different things to different people, and, in different contexts the same words mean different things to the same people at different times. While it is the authority and duty of this Court to interpret the Constitution, it is, or should be, the purpose of the Court to arrive at the intended meaning of the adopters of the Constitution and to interpret the provision in accordance with that intended meaning regardless of what we now think the particular words mean. We should consider all relevant evidence, such as authoritative and well established legislative and executive expressions and interpretations, and give all relevant evidence such weight as the circumstances warrant. By so proceeding, we clearly would not be abrogating our duty, we would be discharging ib. I realize that the adopters of the Constitution may have intended that certain provisions must apply to. developments of the future not necessarily envisioned by them, and the Court should give effect to this intention when it is found to have existed. However, we should go no further in such flexible interpretations'than to accomplish the obvious and fundamental purpose of the particular constitutional provision. And, ii has been repeatedly pointed out that provisions in the nature of a penalty should be strictly construed.

As pointed out by the majority, there are two sentences in Article 19, Section 15. While there have been several cases before this Court dealing with the particular section, we have never been called upon to construe the provisions of the second sentence which are directly involved in this case. It is interesting to note that the first sentence would appear to call for legislative implementation because the requirement is for contracts to be given to the lowest responsible bidder ‘ ‘ below such maximum price and under such regulations as shall be prescribed by law”. Thus, at least this much of the section would appear not to be self-executing. See Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Myhand v. Erwin, County Judge, 231 Ark. 444, 330 S. W. 2d 68. There is no such express qualification with reference to the second sentence, therefore it is clear that the entire section is to be read together because there is a reference in the second sentence to “such contracts” and there can be no question but that the adopters of the Constitution understood and contemplated that the Legislature could act in this field. In view of this, it is all the more obvious that this Court should pay particular attention to expressions of the Legislature. In this regard, this Court has repeatedly held that the Legislature may enact implementing legislation even in the case of self-executing constitutional provisions and, when not repugnant to the Constitution, the provisions of the statute must be followed. See, among other cases, Myhand v. Erwin, supra.

I have examined this matter as thoroughly as it is humanly possible for me to do and cannot escape the conclusion that under the Constitution as written the contracts involved, are valid. My reasons are as follows:

1. We should go no further than is necessary to dispose of the issues in this case. In this regard, the sole question is whether the fifteen contracts involved are void because Mr. Harry W. Parkin, the President and a stockholder in Parkin Printing and Stationery Company, is, and at all pertinent times was, a member of the State Highway Commission. All legal requirements prerequisite to and in connection with the awarding and execution of the contracts have been met and complied with and, on the basis of a comparison with the next lowest bidder, the performance of the contracts by Parkin Printing and Stationery Company, would result in savings to the State in excess of $28,000. The contracts were awarded after competitive bidding and are between Parkin Printing and Stationery Company and the Secretary of State. Specifically, the contracts are not with the State Highway Commission.

2. The fundamental purpose of Article 19, Section 15 (both sentences) is to protect and enhance the public economy. Woodruff, Ad. v. Berry, et al, 40 Ark. 251. While it was intended that members or officers of the departments of government were not to be connected with such contracts (the applicable provision says interested in) in such a manner as to interfere in any way with the full realization of that fundamental purpose, we should interpret the provision no broader than is necessary to accomplish the desired purpose, because it is clearly a penalty or prohibitive provision. See Fiser v. Clayton, State Treasurer, and Clayton, State Treasurer v. McAmis, 221 Ark. 528, 254 S. W. 2d 315, where this Court stated, at page 536:

“It has long been the rule that penal statutes and statutes which impose burdens and liabilities unknown at common law must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed.”

While a statute was involved in the Fiser case, supra, the general principle is certainly applicable in this situation.

3. The interpretation of the particular provision of Article 19, Section 15 to include only the departments, of government referred to elsewhere in the same document (Constitution of 1874) will not only be consistent with the full realization of the purpose involved, it will enhance it. Furthermore, to me this interpretation is clearly the one intended by the adopters of the Constitution. Article 4 is entitled “Departments”, and Section 1 provides in effect that the powers of the government shall be divided into three distinct departments, legislative, executive and judicial. Section 1, Article 5 provides that the legislative power is vested in a General Assembly, consisting of the Senate and House of Representatives. Section 1, Article 6 provides that the executive department consists of a Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, and authorizes the establishment of the office of Commissioner of State Lands. The office of Lieutenant Governor was added to the executive department by constitutional amendment adopted in 1927 in which the people repeated the provisions of Section 1, Article 6. Section 1, Article 7 provides that the judicial power is vested in one Supreme Court, in Circuit Courts, in County and Probate Courts, and in Justices of the Peace. There is authority for the Legislature to vest jurisdiction in municipal corporation courts, courts of common pleas, and to establish separate courts of chancery. In the same document, the adopters provided in Article 19, Section 9 that the General Assembly shall have no power to create any permanent state office not expressly provided for by the Constitution. Therefore, in view of the prohibitive provision involved and the purpose to be accomplished, it appears crystal clear to me that a proper interpretation of the intended meaning of the adopters of the Constitution of this provision of Article 19, Section 15 is that only members and officers of the departments described above are prohibited from being interested in such contracts. If they had intended subsequent offices, boards and agencies, other than those defined as departments in the Constitution, they had the language at their command to do so. See for example the broader language appearing in the following: Section 10, Article 3 (“any office, appointment or employment in or under the government of the United States, or of this State”); Section 7 Article 5 (“nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries excepted)”); Section 10, Article 5 (“any civil office under this State”); Section 11, Article 6 (“person holding office under the authority of this State, or of the United States”); Section 22, Article 6 (“any other office or commission, civil or military, in this State or under any State, or the United States, or any other power”); Section 10, Article 7 (“holding any other office, nor hold any office of trust or profit under the State or the United States”); Section 18, Article 7 (“any other office of trust, or profit under this State or the United States”); Section 1, Article 19 (“any office in the civil departments of this State”); Section 2, Article 19 (“any office in the State”); and Section 3, Article 19 (“vacancy in any office”).

The exact language used in the provision of Article 19, Section 15, with which we are concerned, when considered in the light of precise definition of that exact language elsewhere in the same document, in the light of an express provision in Article 19, Section 9 limiting the authority of the Legislature to create additional permanent offices, in the light of the broader language used in numerous places elsewhere in the same document when a broader interpretation was obviously intended, and in the light of the purpose involved, makes the intended meaning of the adopters perfectly plain. They did not intend the penalty or prohibitive provision to apply to members or officers of subsequently created offices, boards or commissions whether or not they might, for other constitutional purposes, be properly characterised as falling within one of the three branches of government or within a combination thereof. This result is consistent with the restrictive interpretation called for and is consistent with the legislative, executive and general interpretation over the eighty-eight year period since the adoption of the Constitution of 1874. Furthermore, the interpretation results in the realization of the purpose involved.

There is nothing novel about this interpretation which, incidentally, the majority opinion describes as an adroit argument. In Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529, this Court placed an identical interpretation upon the same words. There was involved Article 5, Section 30 of the Constitution which provides:

‘ ‘ The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State. All other appropriations shall be made by separate bills, each embracing but one subject.” (Emphasis supplied).

In that case there was involved an appropriation for the Boys’ Industrial School of the State of Arkansas and the Girls’ Industrial School of the State of Arkansas. The appropriations for the maintenance of the institutions were embraced in the general appropriation bill and this was attacked on the grounds that a separate appropriation was required by the Constitution. The Attorney General defended on the ground that the Constitution divided the powers of the state government into three distinct departments and that all of the institutions of the State, including the schools, must be classified as part of the executive branch of the government. The Court pointed out that while all governmental activities must necessarily fall into one of the three classes, it did not follow that the Legislature intended that appropriations for departments that might for other or general purposes be classified as executive be included in the general appropriations bill. The constitutional definitions of the three departments of government, set forth above, were referred to by the Court and, in holding that the provisions of Article 5, Section 30 referring to the “executive, legislative and judicial departments” meant those departments as defined in the Constitution, the Court said:

“It is, in other words, an appropriation for the departments of State government and must therefore be read in the light of the definition given by the Constitution as to what constitutes those departments. . . . The control of such institutions is administrative and falls within the executive powers of government, but the control and maintenance is not a part of the expenses of the executive department of State as defined by the Constitution.” (Emphasis supplied).

Following this rule in the case at bar and recognizing that the State Highway Commission did not come into existence until many years after the adoption of the Constitution of 1874, and was not a department of government as defined in that document within the meaning of Article 19, Section 15, the prohibitive provision involved could not possibly apply to a member of the State Highway Commission.

The majority opinion completely ignores our holding in Farrell v. Oliver, supra. In my opinion, this case cannot be ignored and it cannot be distinguished. It is our duty to either overrule the holding in that case or follow it in the case now before us and thereby reverse the holding of the trial court.

It is inconceivable to me that all the members of the executive and legislative departments (including hundreds of the most able lawyers in the history of our State) could have been wrong in their interpretation of the Constitution of 1874 for these eighty-eight years.

Governor Cherry, who had served as a Judge for many years and was recognized as an able lawyer surely saw no inhibition in the Constitution to his appointment of Miss Willie Lawson to the first State Highway Commission organized under the Mack-Blackwell Amendment in 1953. Miss Willie Lawson, a highly respected and able citizen, for practical purposes stood in the same shoes then that are occupied by Mr. Harry W. Parkin today. Miss Lawson’s position was with the Democrat Printing and Lithographing Company, whereas Mr. Parkin’s position is with the Parkin Printing and Stationery Company. Neither did Governor Cherry recognize any inhibition in the Constitution of 1874 that would prohibit his appointing Mr. Cecil Lynch, an officer of the Arkansas Power and Light Company, to serve as a member of the first Highway Commission organized under the Mack - Blackwell Amendment in 1953. No one can question that the Arkansas Power and Light Company at that time sold, and still sells, fuel to the State of Arkansas. Electricity is but one form of fuel. Article 19, Section 15 applies to fuel the same as it does to printing. Someone may say that electric rates are regulated by the Public Service Commission, but this is not the end of the story. Remember, the Highway Commission would have to vote to determine whether a building to be occupied by that agency is to be air conditioned with electricity or by the use of natural gas, butane, or some other fuel. Also, the Commissioners may be called upon to vote on the issue of whether, under certain circumstances, the Highway Commission should purchase its own generators and manufacture its own electricity by the use of natural gas or some other form of fuel. The same situation involved Mr. Lawrence Blackwell when he was appointed to succeed Mr. Lynch. Mr. Blackwell served at that time as a member of the Board of Directors of Arkansas Power and Light Company. I had the privilege to serve with Mr. Blackwell in the Senate at the very time he sponsored the Mack-Blackwell Amendment. Mr. Blackwell is a lawyer of recognized ability and certainly I cannot believe that it ever occurred to him that he was disqualified by this provision of the Constitution from serving as a member of the Highway Commission even though he served also as a member of the Board of Directors of the Arkansas Power and Light Company, a company which was engaged in selling fuel to the Highway Commission, other state agencies and to the Constitutional departments of the state government. For fear, however, that someone will try to distinguish the facts that involved Mr. Lynch and Mr. Blackwell on the ground that the electric rates are fixed by the Public Service Commission, I point out that the printing rates involved in the contracts here in question were developed by competitive bidding and were approved by the Secretary of State, Auditor, Treasurer and Governor, all of whom must answer to the voters at the polls if there is any wrongdoing.

"Where does the majority opinion lead us in the future! Where will the line be drawn? There is no question but that the majority opinion means that no officers or stockholders of a gas or electric utility (their parent, companion or subsidiaries) which serve the State of Arkansas can serve on any board or commission. It also means that any officer or stockholder of an oil company or subsidiary of such company which sells gasoline, oil, or any other form of fuel to the State of Arkansas cannot serve on any board or commission. The state government cannot cut off the electricity, natural gas, the use of gasoline, motor oils and other fuels and this, under the majority view, leaves one alternative, stockholders and officers of such suppliers are disqualified from serving the state on any board or commission.

4. Public policy can be declared by the Legislature and in proper cases by the Court. In this regard, the public policy in this area is clear. In the face of rather plain statutory language prohibiting any officer, agent or employee of any agency from being financially interested, directly or indirectly, in any contract or order for any supplies, etc. furnished to any department or agency of the government, this Court in the Fiser case, supra, in furtherance of the applicable restrictive approach concluded that it was not justified in finding a legislative intent to prohibit a member of one board or commission from consummating business transactions with another agency. The conclusion of the Court was confined to the precise issue before it involving the transaction of business by the member of one board with another board. Aside from judicial declaration, the Legislature has conclusively determined the public policy applicable to the exact issue involved. The Mack-Blackwell Amendment No. 42 itself clearly contemplates legislative implementation. In Section 1 the language is that a Highway Commission is created to be “vested with all the powers and duties now or hereafter imposed by law” and all powers “to carry out fully and effectively the regulations and laws relating to the State Highway Department”. This amendment was adopted at the general election held November 4, 1952. At the next session of the Legislature starting in January 1953, Senator Blackwell was an author and sponsor of the bill that became Act 329 of 1953, and obviously was intended to cover the precise issue involved. This Act deals with beneficial interests and prohibitions and makes it unlawful for any Commission member to sell to the Agency of State with which he is connected “except in instances in which the price of such goods . . . is fixed by law or by an agency of government with which he is not connected, or in which the price of such goods ... is fixed by a contract let by another agency of state.” (Emphasis supplied). In the general area of state agency purchasing, see Act 313 of 1955 in which substantially the same language appears as is employed in Act 329 of 1953. The matter of whether Act 329 of 1953 has been repealed is immaterial because it and Act 313 of 1955 represent express legislative declaration of public policy and for that matter Act 329 of 1953 represents express legislative implementation in the exact field covered by the issue before the Court. Here, by virtue of Act 171 of 1921, the Secretary of State is the agency of state letting the contract which fixes the price of the goods going to the State Highway Commission. If not binding, certainly the legislative action should at least be highly persuasive as to the interpretation to be made by this Court. Therefore, the existing public policy in this field applicable to all state offices, boards and agencies is that a member of one office, board or agency can sell to his own agency if the price (not quantity or quality) is fixed by contract let by another agency of state. Compliance with this policy protects the State and the public from loss (or protects the public economy) and at the same time permits maximum competitive bidding and the full utilization of the most qualified persons eligible for appointment to public positions. If there is any actual wrong doing, the checks and controls inherent in our accounting techniques, inspections and procedures will bring them to light for appropriate action. Thus, the language “no member or officer of any department of the government shall in any way be interested in such contracts” in Article 19, Section 15, should properly be limited in its application to at least contracts directly with the agency of which the officer involved is connected. Such an interpretation approving these contracts is consistent with the full realization of the public purpose involved, permits maximum competitive bidding, and permits the State to obtain for its over six hundred board and agency positions the best qualified persons, without unnecessary exclusion from the ranks of those eligible for appointment.

Therefore, regardless of the approach taken, the only proper conclusion is that, under the facts in this record, the contracts in question are not void by virtue of the provisions of Article 19, Section 15 of our Constitution. To the majority opinion to the contrary, I dissent with all the vigor at my command.

       This section of the Constitution has been before us in the following cases: Woodruff v. Berry, 40 Ark. 251; Ark. Democrat v. Press Ptg. Co., 57 Ark. 322, 21 S.W. 586; Hodges v. Lawyers Co-op. Co., 111 Ark. 571, 164 S.W. 294; Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586; Hopper v. Fagan, 151 Ark. 428, 236 S.W. 820; Muncrief v. Hall, 222 Ark. 570, 262 S.W. 2d 92. Our research discloses that Art. 19, Sec. 15, of our 1874 Constitution is identical with Art. 3, Sec. 12 of the Pennsylvania Constitution adopted in 1873; and also with Art. 4, Sec. 30 of the Alabama Constitution of 1875. For somewhat similar provisions in other constitutions, see: Art. 4, See. 107 of Mississippi Constitution of 1890; Art. 5, Sec. 29 of Colorado Constitution of 1876; Art. 15, Sec. 8 of Delaware Constitution of 1897; Art. 5, Sec. 30 of Montana Constitution of 1889; and Sec. 247 of Kentucky Constitution of 1891.

       The fifteen contracts so awarded to Parkin Company were:
      Contract No. 1 — Production of poll tax receipts.
      Contract No. 2 — All permanently bound blank books, books of record, miscellaneous binding, loose leaf bookkeeping sheets, machine bookkeeping sheets, and loose leaf binders.
      Contract No. 8 — Printing the biennial report of Department of Education.
      Contract No. 9 — Printing the biennial report of the State Treasurer.
      Contract No. 15 — Embossed, engraved, or printed letterheads and envelopes for all state departments.
      Contract No. 20 — Furnishing of school registers.
      Contract No. 30 — Printing the annual report of the Insurance Commissioner.
      Contract No. 31 —Printing the monthly Arkansas State Plant Board news for the Arkansas State Plant Board.
      Contract No. 40 — Blank stationery and office supplies.
      Contract No. 42 — Printing the bulletin announcements of the University of Arkansas.
      Contract No. 44 — Printing blank books for the annual reports of County Supervisors.
      Contract No. 52 — Production of special reports in pamphlet form of the department of Planning and Research of the Arkansas State Highway Commission.
      Contract No. 60 — Printing of the monthly Arkansas Highway magazine for the State Highway Department by offset process.
      Contract No. 62 — Printing the bulletin announcement of the University of Arkansas Graduate Institute of Technology.
      Contract No. 63 — Producing bulletins for the geological division of the Arkansas Geological and Conservation Commission.

       Appellant Parkin Company relies on two points in its brief on appeal, being:
      “I. The trial court erred in holding that the Arkansas State Highway Commission is included in the term ‘any department of the government’ as employed in Article 19 Section 15 of the Constitution of Arkansas.
      “II. The public policy of Arkansas does not prohibit a member of the State Highway Commission from holding and performing printing contracts let by the Secretary of State in a procedure prescribed by law and including competitive public bidding.”

       The brief on cross-appeal has this one point:
      “I. The trial court erred in failing to require the state officials who are cross-appellees to enter into a contract with the cross-appellant Arkansas Stationery & Furniture Company for the stationery and supplies to be furnished under the proposal for Contract No. 40.”

       There is an annotation in 140 A.L.R. 344, entitled “Public officer’s relation to corporation as officer or stockholder as constituting' interest within statute or rule of common law against public officer being interested in contract with public,” which cites and approves the quoted holding of our Court and collects authorities generally.

       This section reads: “The legislative power of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives.”

       This section reads: “The executive department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, and Attorney General, all of whom shall keep their offices in person at the seat of government and hold their offices for the term of two years and until their successors are elected and qualified, and the General. Assembly may provide by law for the establishment of the office of Commissioner of State Lands.”

       This section reads: “The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery.”

       See §67-101 Ark. Stats.

       See §66-101 Ark. Stats.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Rossner v. Jeffery.
    5-2614
    354 S. W. 2d 705
    Opinion delivered February 26, 1962.
    [Rehearing denied April 2, 1962.]

      Brooks Bradley, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, by Wayne W. Owen, for appellee.
   George Rose Smith, J.

This case began as a suit by the appellants, the Bossner heirs, to require Jeffery Construction Company to render an accounting under a lease by which the Bossners had authorized Jeffery to remove dirt from a forty-acre tract at a royalty of ten cents a cubic yard. The case became a boundary dispute when Kelton Brown, Jr., an adjoining landowner, intervened and asserted title by adverse possession to part of the leased land. Jeffery admitted its liability to one claimant or the other and deposited the accrued royalties in the registry of the court. This appeal is from a decree sustaining Brown’s claim of title by adverse possession and dividing the royalties in the ratio of the parties’ proportionate ownership. The principal question is whether the proof supports the chancellor’s conclusion upon the issue of adverse possession.

The common boundary between the two forty-acre tracts runs north and south. Brown, whose land lies to the east, contends that for many years the two parcels were actually separated by a fence that ran southwesterly (instead of due south) from the northwest corner of Brown’s tract and thereby enclosed a triangular piece of land that originally belonged to the Rossners. Much of the evidence adduced at the trial related to the existence of this fence.

The decided weight of the testimony shows that the fence existed for some 20 years immediately preceding the institution of this suit. In 1937 a disinterested survey of the general area was made in connection with a drainage proposal. We are strongly impressed by the fact that the map prepared in connection with that survey shows the fence in question, running southwesterly from the section corner to Fourche creek. The continued existence of the fence in 1944 was established by the witness Burrow, who farmed the land in that year. Another witness, Yancey, said that the fence was in fairly good repair when he considered buying the land in 1948 or 1949. Brown’s father, who has acted for his son all along, bought the land in 1954 and cultivated it up to the fence every year until the highway department condemned a right of way along the boundary in 1959. H. W. Brown testified that the fence had been in existence for 20 or 25 years. Three witnesses were able to point out the boundary upon an aerial photograph, indicating that the evidence of possession was plainly visible.

There is really no convincing testimony to rebut the strong proof presented by the appellee. Those of the Rossner heirs who testified had apparently not been on the land for many years and had little personal knowledge of the facts in issue.

Despite the appellee’s persuasive proof of adverse possession the appellants insist that the testimony is fatally deficient in that one of Brown’s predecessors in title, Kurt Ketscher, died in 1953 and so was not available to testify that he intended to hold adversely to the Rossners during the years of his ownership. It is argued that without Ketscher’s testimony Brown did not meet the burden of proving adverse possession for seven years.

This contention is unsound. “The ‘adverseness’ of the possession . . . does not consist alone of mental intentions, but it must also be based on the existence of physical facts which openly evince a purpose to hold dominion over the land in hostility to the title of the real owner, and which will give notice of this hostile intent. A possession, it appears, is adverse to the true owner when it is unaccompanied by any recognition, express or inferable from the circumstances, of the right in the latter.” Tiffany, Real Property (3d Ed.), § 1142. “When the evidence tends to show that the possession has all the qualities of an adverse holding, the law presumes that such possession is adverse, absent evidence to the contrary.” Thompson, Real Property, § 2544. There is nothing to indicate that Ketscher’s open and notorious possession was permissive or subordinate to the Rossners’ title. The chancellor was therefore justified in concluding that the necessai’y hostility of intent existed. If this were not so it would often be impossible to prove adverse possession after the death of the person who had acquired title in that way.

A second contention is that the appellee is estopped to claim title to the triangle in dispute. When the highway department condemned its right of way it paid the Rossner heirs in accordance with the record title. It cannot fairly be said that the failure of Kelton Brown, Sr., to protest that payment, if indeed he had detailed information about it, so misled the Eossners that Brown, Jr., should be estopped from claiming the royalties from land that was really his.

When the highway department discovered that there was a discrepancy between the true boundary line and the location of the fence it notified Jeffery Construction Company, which held leases upon both tracts. The witness Toliver, an agent of Jeffery, testified that he then informed the Eossners and Brown, Sr., of the discrepancy. Before the fence line was obliterated by' the road contractor’s bulldozers Toliver, at Kelton Brown’s suggestion, caused offset stakes to be erected so that the location of the line could still be determined. The Eossners insist that the elder Brown should have brought the matter to their attention before the bulldozers cleared the area, so that they could inspect the fence line while it still existed. There is no good reason to penalize the appellee because his father was diligent in preserving the evidence of the line. Nothing in the proof indicates that Jeffrey’s men, who were apparently disinterested in the controversy, favored either side in the location of the offset stakes. While it is regrettable that the Eossners did not act promptly in the matter and have the satisfaction of verifying the fence line before it was obliterated, this circumstance does not give rise to an estoppel precluding the appellee from claiming what belongs to him.

A final suggestion is that the statute of limitations should not be held to bar two of the Eossner heirs, because they are minors. The statute began to run during the lifetime of their ancestor, who died in about 1949, and consequently it was not arrested by his death. Bender v. Bean, 52 Ark. 132, 12 S. W. 241.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Bradley v. Neal, Excx.
    5-2615
    354 S. W. 2d 269
    Opinion delivered February 26, 1962.

      J. H. Carmichael, Broohs Bradley and Josh W. McHughes, for appellant.

      Moses, McClellan, Arnold, Owen <& McDermott, by James R. Howard, for appellee.
   Paul Ward, Associate Justice.

This is a suit brought in Probate Court by appellants against the Executrix of the Estate of W. B. Warren, deceased, to collect an attorney’s fee. Appellants sought to recover the sum of $3,500 and the trial court allowed them $1,750 — hence this appeal.

Facts. The facts presently set out are not in dispute. Mr. Warren and his wife, who were people of substantial means though not wealthy, had one married daughter named Virginia (Warren) Neal — the appellee herein. Mrs. Warren died in 1956 when Mr. Warren was about 63 years old, and Mrs. Neal was appointed executrix of her estate. Mrs. Warren’s will left considerable property, both real and personal, to her husband for life with the remainder to her daughter, Mrs. Neal, The order of the probate court, dated September 2, 1958, discharging Mrs. Neal as executrix, shows no property as belonging to Mr. Warren.

On April 20, 1960 Mr. Warren wrote appellant, Brooks Bradley (attorney), engaging him to handle certain claims relating to the manner in which his daughter was handling his property and the estate of his wife. In the letter he stated: “I agree to pay you a reasonable fee commensurate with your services and the results obtained.” On May 16 Mr. Warren executed an “assignment” to Bradley of two secured notes valued around $15,000 “for the purpose of securing advances made to me, represented by the notes, and further payment of a fair and reasonable fee, pending termination of litigation now pending in Pulaski County Chancery Court against Yirginia Warren Neal”.

Litigation. Only one witness, Mr. Bradley, testified concerning the extent of the legal services he rendered pursuant to his contract of employment. Set out hereafter is a brief summary of the essence and substance of his testimony.

(a) On April 25, 1960 he filed an eight page complaint in chancery court against Mrs. Neal in which it was alleged, in effect, that the final order discharging Mrs. Neal as executrix of her mother’s estate was a fraud on the court, and that property taken in her name was the property of Mr. Warren. The prayer was for recovery of something like $52,000. Appellants say the recovery was in that amount but this is disputed by appellee in her brief. We think it likely, that the amount claimed by appellants is excessive but we are convinced that a very substantial recovery was made as the resull of the suit.

(b) On tbe same day tbe above mentioned suit was filed (April 25, 1960) appellee took the necessary action to have her father confined in the state hospital. A few days later (on May 4, 1960) appellants filed a petition, in the nature of habeas corpus, in the probate court to effect a release of Mr. Warren from the state hospital. Two days later five members of the medical staff of the hospital found Mr. Warren to be without psychosis, and three days thereafter he was released.

(c) On May 20, 1960 appellants filed a petition on behalf of Mr. Warren in probate court asking for the issuance of a citation against appellee to show cause why the final order of September 2, 1958 discharging her as executrix of Mrs. Warren’s estate should not be set aside and a new accounting made. This proceeding was successfully terminated by appellants and they say a recovery of $2,795.44 was made.

(d) Appellants say that Mr. Warren suffered a heart attack on or about September 27, 1960 and that they resisted an attempt to again place him in the state hospital and to have appellee appointed his guardian, but without success.

Based on the above appellants say the value of their legal services was in excess of $3,500. To substantiate their claim appellants placed in the record expert testimony of three well known attorneys of Little Rock, two of whom heard Bradley’s testimony and the other investigated the files of Bradley. Attorney Grerland P. Patten estimated the value of the legal services “anywhere from $3,000 to $5,000” and said he would have charged $5,000. Mr. Frank Cox said he considered a fee of $3,500 to be reasonable. Mr. H. B. Stubblefield, who read the file and talked to Bradley, thought $3,500 to be “a rock bottom or a very minimum fee. . . .”

This Court, on several occasions, has attempted to state a rule by which the courts can arrive at a reasonable attorney’s fee. In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, we said:

“We think it fairly deducible from onr own cases and from the case note above referred to that in determining what is a reasonable attorney’s fee, it is competent and proper to consider the amount and character of the services rendered, the labor, time and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.”

The rule was expressed in somewhat different language in Bockman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991, where it was stated:

“ ‘Legal services . . . cannot be apportioned either by time, or the amount of physical labor expended in drawing papers, attending courts, and oral arguments. It is the attorney’s judgment, his learning, his responsibility and advice, which is relied upon, and which gives the peculiar value to legal services. Perhaps the most difficult and valuable services of the attorney may be rendered in considering his client’s case, and giving him confidential information, before any visible act is done.’ ”

In the case of Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22, this Court unanimously approved an attorney’s fee in the amount of $18,000 for services rendered in connection with the settlement of a divorce case. Attorneys testified, as experts, that a reasonable fee would be all the way from $5,000 to $40,000. In approving the amount fixed, we said:

“The lower court had a right also to take into consideration many other facts and circumstances developed in the case such as, the large amount of property involved, the effort of appellant to establish a previous property settlement, the amount of work performed by appellee’s attorney and the responsibility involved, and the results obtained by the skill and efforts of said attorney. ’ ’

From the above cases we find that courts, in fixing compensation for legal fees, consider the character of services, the time and trouble involved, the skill and experience called for, the professional character of the attorney, his judgment and responsibility and the results achieved. In addition to the above it is proper to consider the attorney’s own estimate of the value of his services, and also the estimate of other attorneys who are familiar with relevant facts. Lilly v. Robinson Mercantile Company, 106 Ark. 571, 153 S. W. 820. Also, in the cited case and in many other cases we have held that consideration must be given to the knowledge and judgment of the trial judge who fixes the fee.

After weighing all the testimony and circumstances in this case by the rules above set out we have reached the conclusion that the weight of the testimony supports a fee for appellants in the sum of $3,000, which is the smallest amount fixed by the three expert witnesses.

In reaching the above conclusion we are not unmindful of the fact that the trial judge’s own knowledge of the value of such services ordinarily carries great weight, as heretofore pointed out, especially when the services are rendered in his own court. Here however the major portion of appellants’ services (resulting in the most recovery) were apparently rendered in connection with litigation in another court. Appellees point out that in some of this litigation there was no trial, but a settlement was effected. This fact, we think, is not of too much significance. In Saad, Executor v. Arkansas Trust Company, 225 Ark. 33, 280 S. W. 2d 894, where an attorney’s fee was involved, we said: “It may have been due to their diligence and hard work that the contestants did not press for a trial.”

Accordingly the' decree of the trial court is reversed, and the cause is remanded with instructions to enter a decree in conformity with this opinion.


author: Sam Robinson, Associate Justice.

text:
    Johnson v. Bear Brand Roofing Co.
    5-2617
    354 S. W. 2d 277
    Opinion delivered February 26, 1962.

      Paul K. Roberts, for appellant.

      Shackleford & Shackleford, for appellee.
   Sam Robinson, Associate Justice.

This is the second appeal in a workmen’s compensation case. In the first appeal a judgment in favor of the employer, Bear Brand Roofing, Inc., was reversed because the Compensation Commission had refused to allow a doctor, produced as a witness by the claimant, to answer a hypothetical question propounded by counsel for the claimant. The judgment was reversed and remanded for further proceedings not inconsistent with the opinion, 232 Ark. 639, 346 S. W. 2d 472.

When the case was returned to the Workmen’s Compensation Commission, without hearing any additional testimony the Commission entered a judgment for the claimant. The employer filed a motion to set aside the judgment and the motion was granted. Claimant then appealed to the Circuit Court from the order setting aside the judgment and applied for a writ of Mandamus to compel the Commission to re-enter the judgment.

Obviously, in the circumstances it was error for the Commission to enter a judgment for the claimant and the Commission quite properly set it aside. The proper procedure is for the Commission to set the cause for a hearing, allow the doctor to answer the hypothetical question and permit either side to introduce any additional admissible evidence that they might wish to produce.

Moreover, in addition to what we have said, the Commission’s action in setting aside the judgment is not a final order from which an appeal will lie. Batesville v. Ball, 100 Ark. 496, 140 S. W. 712.

The appeal is dismissed.


author: Jim Johnson, Associate Justice.

text:
    LaGasse v. LaGasse.
    5-2567
    354 S. W. 2d 274
    Opinion delivered February 26, 1962.

      Witt é Witt and J. Fred Jones, for appellant.

      Wood, Ghesnutt & Smith, by James W. Ghesnutt, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a Chancery decree granting appellee, Betty LaG-asse, a divorce from appellant, George Autry LaGasse; awarding alimony pendente lite and permanent alimony, and adjudicating property rights between the parties.

Appellee sought the divorce upon the grounds of general indignities, asked for alimony pendente lite, permanent alimony, attorney’s fees, suit money and costs of the action, and further requested that she be awarded her share of all properties and monies owned by appellant. During the course of the litigation in the trial court, appellee caused a writ of equitable garnishment to be issued against appellant’s funds in the Pike County Bank in Murfreesboro wherein he maintained an account. Appellee, by amendment to her complaint, also made appellant’s father, George LaGasse, a defendant in the action in the trial court alleging, inter alia, that appellant’s father had entered into a conspiracy with appellant to defraud her of her property rights by the attempted transfer of appellant’s interest in the LaGasse Lumber Company to his father.

Appellant and his father answered denying collusion but asserting that the transfer was effected in order that a contract with the Louisville Cooperage Company of Louisville, Kentucky, could be fulfilled.

Neither George LaGasse, appellant’s father, nor Pike County Bank have appealed from the Chancellor’s decree.

Appellant argues first that appellee did not state a cause of action for a divorce in her complaint. There is no merit to this contention. The complaint alleged the race of the parties; their marriage; their residence in Arkansas, and stated in some particularity the studied contempt and neglect habitually and continuously practiced by the appellant against the appellee extending for more than a year. The complaint contained other allegations and without detailing all of them, suffice it to say the complaint stated a cause of action. No such question was raised in the lower court.

Next the appellant says that the appellee failed to prove sufficient grounds for a divorce under the Arkansas law. The appellee’s testimony went into detail concerning the indignities that she had suffered and the matter of corroboration will subsequently be considered.

Appellant next contends that the trial court erred in granting a divorce to appellee on her own uncorroborated testimony. Appellee testified to numerous indignities which have occurred since the couple moved to Mt. Ida in 1951 which evidenced a general lack of harmony and compatibility in the home, much of which was brought about by appellant’s excessive drinking. She related that on numerous occasions appellant would stay out all night and her inquiry concerning his whereabouts met with profanity and anger and his answer to her inquiries was “out”; that on three occasions he struck her and when he was drinking he was always in a bad humor and cross and would attempt to pick a fight when he came home. That on the night he left permanently he came home after midnight ranting and cursing and kept it up until 2:30 a.m. and then left. The above testimony is undisputed by appellant and there is some corroboration by appellee’s witness. This Court has adhered to the rule that in an action for divorce a decree will not be granted upon the uncorroborated testimony of one of the parties. Smith v. Smith, 215 Ark. 839, 223 S. W. 2d 776. But the purpose of the rule requiring corroboration is to prevent the procuring of divorces through collusion and when it is plain that there is no collusion, the corroboration may be comparatively slight. Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6. In the instant case the action was contested and there was no manifestation of collusion. We said in the recent case of Anderson v. Anderson, 234 Ark. 375, 352 S. W. 2d 369, quoting the rule which was stated in Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078:

“It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said;that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”

The next six points relied on by appellant for reversal are:

The trial court abused its discretion and erred in issuing a garnishment order against the funds in the Pike County Bank; the trial court erred, abused its discretion and exceeded its legal jurisdiction in awarding to appellee alimony pendente lite which it found should have been previously awarded to her and in rendering judgment against the appellant for an amount he should have paid without order and while petition and motion therefor was still pending; the trial court’s finding that the appellant and his father entered into a conspiracy to defraud the appellee is not supported by the evidence and the trial court erred, abused its discretion and exceeded its legal jurisdiction in setting aside the lease of the stave mill equipment to George LaGasse; the trial court’s finding that appellee is unable to work and support herself is not supported by the evidence; the trial court’s finding that the appellant is financially able to pay to the appellee $150 per month alimony is not supported by the evidence and the trial court erred in making such award; the trial court erred in awarding attorney fees of $250 against the appellant in addition to the fee to be paid by the appellee without settling the amount to be paid by appellee.

Each of these asserted errors involve a determination of fact by the Chancellor and/or an exercise of his sound discretion. Although divorce cases are tried de novo on appeal, the Chancellor’s findings on questions of fact will not be disturbed unless such findings are clearly contrary to the preponderance of the evidence, the reason being of course that the Chancellor is in a much better position to determine the questions of fact since he is able to view the demeanor of the witnesses and the manner in which they answer questions and to determine their credibility. Coffey v. Coffey, 223 Ark. 607; 267 S. W. 2d 499; Anderson v. Anderson, supra. From the record here presented, we are unable to say that the Chancellor’s conclusions are contrary to the preponderance of the evidence or that he abused his sound discretion.

For the reasons above stated, the Chancellor’s decree is in all things affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Wallace v. Fordyce Lumber Co.
    5-2531
    354 S. W. 2d 271
    Opinion delivered February 26, 1962.

      McMillan & McMillan, for appellant.

      Gaughan & Laney and Thomas E. Sparks, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee brought this action in the Dallas Chancery Court alleging that it was the owner of the west half and southeast quarter of section 8, township 7 south, range 14 west; that the appellant was the owner of the northeast quarter of said section [except 10 acres which are not in dispute here]; that appellant was threatening to and about to trespass upon the lands of the appellee and cut timber thereon, and asked a restraining order which was granted.

Thereafter the cause proceeded to trial and the chancellor found the issues for the appellee and established the line between their properties and enjoined the appellant from cutting over the line. From that judgment comes this appeal.

Counsel have presented us with a well-tried and excellently briefed lawsuit with a record that brings up every detail and the exhibits thereto are complete.

The appellant states that the sole issue in this case is the question as to the legal requirements for the establishment of government corners or of government lines where all of the original monuments, witness trees and accessories are missing. The appellee contends that the only issue is that the finding of the chancellor is supported by competent evidence and the finding is not against the preponderance thereof. The factual situation in this township is not altogether novel.

The nearest government corner to the involved land is the quarter section corner between sections 16 and 17 lying south of the land in controversy. The original government notes of the quarter corner between sections 16 and 17 list as monuments a brook 50 links wide running southeast, a Gum tree 10 inches in diameter, and a Holly tree 8 inches in diameter.

A survey was begun at the quarter corner of 16 and 17 where the surveyor found, of the monuments listed in the government notes, the stump-hole of the Gum tree which the original surveyor had noted, the brook, and the Holly tree. The question of the Holly tree being the one listed in the government notes is in dispute. One expert claimed that his borings indicated that the tree was not old enough to have been the original tree and another expert claimed that it was. The chancellor might have found either way on that point but he held that the Holly tree was the Holly tree from which that particular corner takes its name. Therefore there is ample testimony for the chancellor to have found as he did, that the corner located between 16 and 17 and designated as the Holly Tree Corner is the true government corner.

Much testimony has been taken but we are impressed, as the chancellor no doubt was, with the direct approach of the surveyors who, accepting the Holly Tree Corner, ran north 80 chains. This measurement of 80 chains is the proper distance to place us at the quarter corner between sections 8 and 9 and should mai’k the southeast corner of appellant’s land.

At that point a surveyor, who was running the lines for appellant’s predecessor in title, found a pine knot, evidently the marking of a corner. While there is a dispute in the testimony, there is testimony to the effect that the then owner of the land of appellant deeded the pulpwood on this land and showed the purchaser this particular pine knot corner and designated it as the southeast corner of his holdings. The surveyor testified that he began right there and ran a line west 20 chains and 18 links to a corner that was up and marked by a pine knot and an old blaze line and then 20 chains and 18 links to another pine knot. At this point he found established a corner that was the center of section 8. From this center of section 8 the surveyor went 40 chains to the quarter corner of 5 and 8 where there was an old blaze line and the point marked by a pine knot.

These two lines found, as established by the chancellor, are the only boundaries with which we are concerned in this case. They mark the boundaries between the lands of appellant and appellee. With the north and east lines of appellant’s property we are not concerned. As far as we know, no controversy exists between the appellant and his adjoining landowners on the north and east and the question as to whether or not the Ash tree line on the north is the proper northern boundary we do not decide here.

It is earnestly insisted by the appellant that there is a lack of government corners properly monumented in section 8 and we are asked to follow the Government Manual of Surveying Instructions as it pertains to that state of facts. If the land involved in this case were still government owned we would readily hold that the manual is controlling. It is, as its name suggests, a manual for the guidance of the employees of land management and its purpose is set forth on page 2 of the manual as follows:

“The Manual is for the guidance of the employees of the Bureau of Land Management. To all others this surveying practice should be regarded as advisory, with no attempt to interpret State law respecting the survey of private property.”

Therefore, we take the manual to be advisory only. Since there do not appear to be any existing monuments at this quarter corner, resort should have been and was had to section 355 of the manual at page 285.

“An obliterated corner is one at whose point there are no remaining traces of the monument, or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt, by the acts and testimony of the interested landowners, competent surveyors, or other qualified local authorities, or witnesses, or by some acceptable record evidence.”

There was, as the court found, not only the evidence of the pine knot markers at the proper spot where the monuments showed they should have been, but there was an old blaze trail that signifies the acceptance of the corner and the line and the evidence, though disputed, that a former landowner had designated the exact spot found by the surveyor as the southeast corner of appellant’s land. :

In an effort to find evidence of government corners, it should be borne in mind that more than thirteen decades and a lustrum have passed since the government: survey was made and the corners established and the field notes made and filed. In the years that have passed' between those events, armies have moved and a war has been fonght in our section and the ravages of time and decay have also taken a toll of monuments which at best could be considered only transitory in a section where an outcropping of rock or other permanent material would be novel indeed.

It is entirely possible that over the generations past people have, as best they could with the crude methods at hand, located corners and lines from government corners that were known. Those corners may now be obliterated and difficult to ascertain but on the strength of those determinations of positions, forests have been leveled, fields have been cleared and tilled, homes, villages and cities have been erected and if there was error in measurement or location of any of these things it has persisted through a long period of time. That error, if error existed, may be reflected in lines of property long distances from the original markings but over the years they have been accepted and the court should weigh well the confusion and mischief that might be wrought by the change of an accepted line.

Before that line which has been accepted through the long years is changed, it should be made to appear that the wrong, the injustice, the inequity of the situation is glaring and the change is appreciable, and the error easily traced to its source.

In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE,, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.

We refrain from burdening this opinion with a reiteration of our many holdings on decisions of the chancellors. The findings of the chancellor will not be disturbed unless it is shown that they are contrary to the preponderance of the evidence. No such showing is here made. The chancellor’s conclusions are sound and the decree should be affirmed.

It is so ordered.