author:
Robert H. Dudley, Justice.
      Darrell Hickman, Justice,

text:
    Garland TRICE, Jr. v. CITY OF PINE BLUFF, Arkansas
    82-233
    649 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Othello C. Cross, for appellant.

      Berlin C. Jones, Asst. City Atty., for appellee.
   Robert H. Dudley, Justice.

This is an appeal from convictions for violating a city zoning ordinance. The narrow issue involved is whether the ordinance was too vague to be enforced through criminal law. We hold that the ordinance did not give appellant fair warning in definite language that his acts were prohibited and we reverse the conviction. Jurisdiction is in this Court as the case involves the validity of a municipal ordinance as applied. Rule 29 (1) (c).

The City of Pine Bluff has a comprehensive zoning ordinance. Appellant owns two lots in the city which are designated for residential purposes. The city issued a permit to appellant for a non-conforming use, a garage, on the lot across the street from the tract on which his home is located. The neighbors complained to the city about appellant’s use of the lot with the garage. However, appellant did not think he was violating the uses proscribed by the zoning ordinance.

As a result, the city charged appellant in municipal court with five separate counts of “Violation of City Ordinance. ’ ’ He was convicted on all counts and appealed to circuit court. There, at the commencement of the consolidated trials, the circuit judge prophetically inquired of the city attorney as follows:

THE COURT: This is City appeal cases Number 82-137-1, Number 137-A-l, 137-B-l, 137-C-l and 137-D-l. Now, somebody tell me in j ust plain language, if it is in plain language, what the man is charged with. I assume, as I said before, that it has something to do with driving a truck in an area of the City that a truck is not supposed to be in.
MR. JONES: (City attorney) No, sir.
THE COURT: That’s not it.
MR. JONES: That is 137-D, truck driving —
THE COURT: Well, don’t tell me what 137-D is if we are not trying 137-D. The only ones I’m interested in are the ones that we are trying and what the man is charged with so when we take the facts I can understand what he — You know — Try to figure it out whether he violated it or not.
MR. KEOUGH: (City attorney) Violation of Section 9 of City Ordinance 4807, the zoning ordinance of the City of Pine Bluff, uses permitted in an R-3 residential district.

The sufficiency of the charge is not questioned on appeal. One count, 137-D, was dismissed by the circuit court but appellant was found guilty on the other four counts. The convictions were had because on four different days a zoning administrator found the following: (1) “grass that needed cutting and some other items stored ... and a pile of lumber,” (2) “an 18 wheel tractor-trailer on the lot,” (3) “a pickup truck,” and (4) “another truck, approximately one ton.” The specific question before this Court is whether the ordinance gives a person fair warning in definite language that the following are prohibited: (1) allowing grass to grow too high and storing lumber, (2) parking a large truck, (3) parking a small truck, and (4) parking a medium truck.

Zoning ordinances may be judicially enforced by either civil or criminal proceedings. City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954). Civil enforcement, the most common form, is usually by actions for injunctions or declaratory judgments. In those civil actions, an ambiguous ordinance or one with a double meaning may be construed by the courts so that effect is given to the legislative intent. The rule for enforcement by criminal action is markedly different because there can be neither constructively created criminal offenses nor criminal offenses established by implication. International Harvester Co. v. State, 79 Ark. 517, 96 S.W. 119 (1906). Ordinances creating criminal offenses must be clear and unambiguous. In civil law we inquire into what the legislature meant but in criminal law we inquire into only what the statute means. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952), citing Giles v. State, 190 Ark. 218, 78 S.W.2d 70 (1935). It is this difference that makes a criminal proceeding a poor vehicle for resolving a zoning dispute such as the one before us. Instead of seeking a declaratory judgment for the interpretation of the ordinance or an injunction against impliedly proscribed uses, the city sought to resolve this dispute by the process of a criminal action. Therefore, we examine the ordinance for vagueness, the standard for criminal statutes.

The standard by which we determine whether an ordinance is vague is whether the ordinance gives a person of average intelligence a fair warning in definite language of the prohibited act. Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). The material section of the ordinance is appended to this opinion. There is no warning in definite language that the ordinance in question created a criminal offense for allowing grass to exceed a certain height, or for storing lumber, or for parking trucks. The city’s argument tacitly recognizes that there was no warning in definite language but it contends that the ordinance is an exclusive zoning ordinance and therefore all uses other than proper residential uses are criminally excluded. From this basis the city constructively or by implication would create the four criminal offenses. Although this argument might be valid in a civil action to determine permitted uses, see Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983). it is irrelevant to the interpretation of criminal laws which are subject to strict guidelines of interpretation. Lewis v. State, 220 Ark. 259, 263, 247 S.W.2d 195, 197 (1952). Moreover, the following questions demonstrate the fallacy in this interpretation of the ordinance. For example, how tall is grass which is too tall? How much lumber, if any, can be stored? What, besides lumber, is prohibited from being stored? May an automobile be parked on one’s land? If so, why may an automobile be parked when a pickup truck may not? Quite obviously, the ordinance contains no written standard by which the questions can be answered. Logic dictates only one conclusion: that a zoning administrator and a judge decide what constitutes an offense without written standards. In Davis v. Smith, 266 Ark. 112, 118, 583 S.W.2d 37, 41 (1979), we stated:

In criminal cases, placing discretion in the hands of the police without prescribing any standards governing its exercise is another instance which renders a statute void for vagueness. Papachristou v. City of Jacksonville, supra [405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)]____A law which, due to vagueness, leaves basic policy matters in the criminal law field to either policemen or judges on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application, is also impermissible. Grayned v. City of Rockford, supra [408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)]. A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case fails to meet due process requirements. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). See also, Andrew Jackson, ex parte, 45 Ark. 158.

If an ordinance can be construed to create a criminal offense, not by its definite language, but merely according to a zoning administrator’s interpretation of that ordinance, we become a state governed not by laws but by administrators.

The city seeks to minimize this danger by placing reliance on the argument that appellant knew that in his application for a permit for a non-conforming use, he stated the garage would be used to park an automobile and knew the manner in which the city interpreted its own ordinance. Therefore, the city argues, he had fair warning. However, criminal offenses cannot properly rest upon what an application stated when that application does not form a part of the charge, or upon what the neighbors thought the ordinance meant or upon what warning an administrator gave based upon his own interpretation of the ordinance. The validity of the criminal provisions of the ordinance is determined by the language of the ordinance. That language is vague and the conviction must be reversed.

Reversed and dismissed.

Hickman and Hays, JJ., dissent.

APPENDIX

SECTION 9 R-3 RESIDENTIAL

A. General Description and Intent of District.

This District is intended for use in residential neighborhoods which meet one or both of the following criteria:

1. Lot sizes are generally smaller than those required in the “R-l” zone in area or dimension.

2. It can be established that the residential character of the neighborhood can best be preserved or improved by allowing a broader mix of uses than allowed in “R-l” areas.

B. Permitted Uses

1. Single Family Dwellings

2. Accessory Uses and Buildings

3. Duplex (with lot area of 7,800 sq. ft. and a lot width of 65 ft.)

4. Home Occupation

5. Any single lot subdivided and recorded as of the effective date of this Ordinance, with a fifty (50) foot width at the building line, and five thousand (5,000) square feet of area, may be used at the discretion of the Zoning Administrator where required R-3 setbacks can be met.

6. Office uses which comply with the following additional regulations and other city regulations.

C. Uses Permitted Upon Review and Approval of the Planning Commission

The Planning Commission may impose special conditions relating to such considerations as the site plan, screening or parking as a condition for approval of the following uses or any other uses it deems appropriate for the protection of the public health, safety and welfare.

1. Parks and Playgrounds

2. Day-Care Family Home

3. Rooming House

4. Cemetery

5. Public & Semi-public Uses

6. Golf Course

7. Tennis Courts

9. Public Elementary Schools and other educational institutions with curriculum equivalent to a Public Elementary School.

10. Churches (See Section 24-(M))

11. Garage Apartments (Occupied by Relatives)

12. Professional Office in a converted functionally obsolete single family residence.

13. Restaurant in a converted functionally obsolete single family residence.

14. Other uses deemed appropriate in the opinion of the Board of Zoning Adjustment which conform to the basic intent of this district and which can be demonstrated to be equal to or less intense than other permitted uses in this district.

D. Parking Requirements

Two (2) off-street parking spaces shall be required for duplexes and single family residences. Other uses shall provide parking in conformance with provisions of Section 23.

E. Height, Area and Structure Regulation

1. Height Regulations — No building shall exceed two and one-half stories nor shall it exceed thirty-five (35) feet in height. The height shall be measured from the Finished Floor Level (FFL).

2. Space Regulations

a. Lot Area: A minimum of seven thousand two hundred (7,200) square feet. A duplex must have a minimum of seven thousand, eight hundred (7,800) square feet.

b. Lot Width: A minimum width at the building setback line of sixty (60) feet. A duplex shall have a minimum of sixty-five (65) feet.

c. Front Yard: A minimum of twenty-five (25) feet.

d. Side Yards: The minimum side yard shall be five (5) feet. The side yard on the street side of each corner lot shall not be less than twenty (20) feet.

e. Rear Yard: A minimum of twenty (20) feet.

f. Accessory Buildings shall be set back from any property line a minimum of five (5) feet.

g. Building Coverage: A maximum of forty-five (45) percent of the lot area.

3. Structure Regulations

Only one dwelling unit per lot, regardless of lot size, will be permitted except garage apartments as provided for in this Ordinance.

F. Dimensions

Each structure shall have a minimum total dimension on each side of twenty (20) feet and the entire twenty (20) feet shall be finished on a permanent foundation.

More than one modular unit may be joined and considered one structure providing that joints are completely sealed in such a manner that they are not discernible from the exterior of the structure, and in no way indicates mobility. This section shall not include storage buildings or other minor accessory structures.

Darrell Hickman, Justice,

dissenting. Rather than go to the record to reverse this decision, we should only go to the record to affirm the decision. Rather than view the evidence most favorably to the appellant, we must view it most favorably to the appellee. Hamlin Flying Service, Inc. v. Breckenridge, 275 Ark. 188, 628 S.W.2d 312 (1982). Rather than search for a way to find an ordinance unconstitutional we must first presume it is constitutional and try to give it a construction which would meet constitutional tests if that construction is reasonable. Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., 258 Ark. 91, 522 S.W.2d 836 (1975), cert, denied 423 U.S. 941 (1975); Connors v. Riley, 395 F. Supp. 1244 (W.D. Ark. 1975).

The majority opinion decides a case that essentially was not presented to the trial court, nor fairly represented as such on appeal. If our appellate rules are to have any significance, if parties who prevail in trials are to have any security in the judicial process, and if trial judges are to have any confidence in our approach to reviewing cases, this case must be affirmed.

It is not for us to say how tall grass can grow, or what vehicles can be parked in a residential area, and those are not the questions to us. Our role in this case is simply to review two questions presented: Is the ordinance constitutional by any reasonable measure, and was there substantial evidence to support the trial court’s decision.

The evidence stated most favorably to the appellee is this: Trice, the appellant, had been a source of irritation to his neighbors for some time because he ran a business from his home which is located in a residential area in Pine Bluff, an area that can be used for no other purpose except residential. Trice bought a vacant lot across the street from his house, which he admitted was purchased as a place to park his business vehicles, or just vehicles, as he insists. He was granted permission to build a garage on it but the permission was limited to using it for parking automobiles. In other words, he was deliberately deceptive.

After several complaints were made of his use of the lot, a city official checked the lot on four separate days: November 16, 17, 18, and December 1, 1981. On those days the official noted what he thought were improper uses. According to his testimony, which was supported by photographs, on one day there was an 18-wheel trailer and a one-ton truck with a fuel tank parked on the property. There were also tall grass, tires, and a pile of lumber on the lot. Over the next two days the trailer was gone but the other things remained. On December 1,1981, an 18-wheel tractor-trailer was on the lot being cleaned by a steam cleaning service.

Trice admitted he was using the lot for his business and he was charged with an improper use of the property. The circuit judge, sitting without a jury and charged with finding the facts, s jmply summed up the evidence by saying:

He’s in the trucking business. . . . The garage was built for automobiles, personal use, and that was permitted. Maybe that shouldn’t have been permitted. I don’t know. But nevertheless, a ton and a half truck, a pickup truck, an automobile and an 18-wheeler with a truck bed and a pile of lumber indicates to me there is something going on there besides sleeping and eating, and I’m not condemning the work as such but if you are going to carry on that kind of operation you are going to have to find another place to do it. You can park your truck as I understand at your residence overnight, but you just simply can’t use that vacant lot over there as a place to operate from to unload excess lumber or to unload a torn-up truck bed or to clean up the equipment or repair the equipment. That’s a part of your business operation, and it does violate the ordinance.

So all we must decide is whether there is substantial evidence that Trice was improperly using the property for something other than a residential purpose. Indeed it is not even disputed that was what Trice was doing, and there was no objection to the charge. So it is not a question of height of the grass, or notations by a civil servant of violations; it is a question of reviewing the facts found by a trial judge, which we must honor if substantially supported by the evidence. The majority concedes no objection was made as to the charges, but dwells on them anyway.

The ordinance in question is a routine but comprehensive zoning ordinance that declares what uses property may be put to and necessarily what uses may not be employed. The ordinance is not in the record, only references were made to it at the trial. We cannot take judicial notice of a municipal ordinance. Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979). The excerpt reprinted by the majority was furnished by the appellee and did not appear in the record.

We can surmise there was a penal provision allowing a fine for each violation of the ordinance; that is not questioned, but the provision itself is not in the record. We do know there is no question that this neighborhood was exclusively zoned as a residential area. Residential zoned property may not, of course, be used for commercial, industrial, or agricultural uses, which are the other general categories, unless specifically authorized in the ordinance. The appellant specifically attacks one provision of the ordinance as unconstitutional; that provision defines the accessory uses to which an owner may put his property. It obviously controls this case, and is not even mentioned by the majority. The provision, quoted to us by the appellant, defines an accessory use as:

A use customarily incidental, appropriate and subordinate to the principal use of land on building; and located on the same lot.

The appellant argues in his brief this is an unconstitutional provision because these are broad unspecific terms “which do not lend themselves to ready measurement.”

In Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977), we upheld as constitutional some statutory language defining one kind of first degree battery as causing serious injury “under circumstances manifesting extreme indifference to the value of human life.” If the average person can comprehend that language, surely one can know what uses are customary, incidental, appropriate and subordinate to residential use. Necessarily it means, when the zoning ordinance is given a reasonable interpretation, that one cannot use such property for commercial, business, industrial or agricultural purposes.

Common sense has to be applied to the interpretation of statutes and ordinances. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). Would it satisfy the majority if the ordinance had mentioned all the “Thou shall nots” instead of succinctly and clearly stating what the property could be used for? That would make much less sense than spelling out, as the ordinance apparently does, only what the property may be used for.

I would not strain to strike down this ordinance, in the dark, so to speak. The appellant essentially says the ordinance is invalid because of the “accessory use” of the provision. And that is the question I would answer.

The ordinary person would not have to speculate to the meaning of this provision. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). An ordinance which “ . . . defines boundaries sufficiently distinct for all citizens, policemen, juries and appellate judges is not impermissibly vague.” Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). See Martin v. State, supra.

The provision of the ordinance under attack is part of a zoning code, the primary purpose of which is to define how one may and may not use property. There is a penal sanction for violations.

This is a simple case. The appellant was obviously running a business on a residential lot, and that is what the trial court found. The appellant knew he could not run a trucking business there, yet he proceeded to do so. I would apply our usual rules of appellate procedure and affirm the case. I would make no blanket rule concerning any and all provisions of this ordinance on the chance the parties have submitted to us all relevant portions. See Bethea v. City of Little Rock, 272 Ark. 159, 612 S.W.2d 320 (1981).

Hays, J., joins in this dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Don W. ALLEN et al v. Gene TITSWORTH et al
    82-293
    649 S.W.2d 185
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Phillip B. Boudreaux, for appellants.

      Orvin W. Foster, for appellees.
   Robert H. Dudley, Justice.

In 1980 the City of Mena employed appellant, Don W. Allen, as Chief of Police. He continues to serve in that capacity but, from January 25, 1981 until February 8, 1982, he was not certified as a law enforcement officer. Appellee, Gene Titsworth, filed a class action on behalf of all taxpayers residing in Mena praying that all official acts of appellant as police chief during the period of non-certification be invalidated and that appellant be ordered to refund all compensation paid to him during the period. The chancellor ruled that all actions taken during the period were invalid but that a refund of the compensation received during the period was not required. Both parties appeal. We dismiss on direct appeal and affirm on cross-appeal. Jurisdiction is in this Court as this case involves the interpretation of the statute on certification of law enforcement offices. Rule 29 (1) (c).

Title 42, Chapter 10 of the Arkansas Statutes Annotated provides a system and a program for the training and certification of law enforcement officers within the State. An appointed chief of police is a law enforcement officer, within the statutory definition, because he “is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic or highway laws of this State ....” Ark. Stat. Ann. § 42-1001 (a) (Repl. 1977). Thus, it was necessary for appellant to be certified in order for him to validly act as a law enforcement officer. Appellant failed to obtain certification for the period of time at issue. Ark. Stat. Ann. § 42-1009 (Repl. 1977) provides that one who is not certified “shall not take any official action as a police officer and any action taken shall be held as invalid.” Appellant does not contest that part of the trial court’s decree which invalidates all actions taken by him as a law enforcement officer during the period of non-certification. Rather, he argues that the certification statutes should not apply to non-law enforcement administrative acts as distinguished from law enforcement administrative acts. We do not reach the point because the evidence offered below is not sufficient to make the suggested distinction a justiciable issue. We are asked to issue an advisory opinion to decide an academic issue. This is contrary to our practice. Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982). Therefore, we dismiss the direct appeal. Similarly, in the court below there was no real controversy concerning any designated act, there was no standing to directly question a specific action and the trial court did not invalidate any particular act. While that part of the trial court’s decree invalidating all law enforcement actions is not on appeal, we note that it is in the nature of advice and does not have the force, effect and binding nature of a judicial decision which resolves an actual controversy between parties. McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981).

On cross-appeal Gene Titsworth argues that the trial court erred by not requiring cross-appellee Don Allen to refund all compensation paid to him during the period of non-certification. We find no merit in the contention. Crossappellee was validly employed, his salary was reasonble and he acted in good faith. Under these circumstances the city should not be given a windfall profit. Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 203 (1977).

Dismissed on direct appeal and affirmed on cross-appeal.


author: Per Curiam.

text:
    L. V. BLAKELY v. STATE of Arkansas
    649 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: A lice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

On June 2, 1981, petitioner L. V. Blakely pleaded guilty to second degree forgery. The trial court suspended imposition of sentence for five years. On November 8, 1982, a hearing was held on a petition to revoke the suspended sentence filed by the State. The petition was granted. Blakely has now filed a motion seeking permission to file a belated appeal of that action. His attorney at the revocation hearing, Mike J. Etoch, has submitted an affidavit in response to the motion.

Petitioner alleges that he wrote Mr. Etoch three times asking him to appeal the revocation. Mr. Etoch concedes that petitioner wrote to him and the circuit judge on December 2 and 3, which was within the thirty days for filing a notice of appeal, asking him to appeal. He states, however, that “at about the same time” he received a phone call from an employee of the Department of Corection who said that he would handle the appeal if Etoch would send a letter withdrawing himself as attorney-of-record. Although he sent the letter, Etoch never formally asked the trial court to relieve him as counsel.

Criminal Procedure Rule 36.9 provides that a belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires to appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). There can be no doubt in this case that petitioner wanted to appeal. If counsel understood that the notice of appeal was to be filed by some other attorney, he was obligated to seek permission from the trial court to withdraw from the case. Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from a case. In Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and that the petition to withdraw should contain a statement of reasons therefor. Also, we held that a copy of request for withdrawal, if granted, should be sent to the appellant.

Petitioner’s motion for belated appeal is granted. Since Mr. Etoch has never received permission to withdraw from the case, he remains attorney of record on this appeal and must be held responsible for the duties imposed upon him by the rules, statutes and opinions of this Court. Surridge, supra; Finnie, supra. Petitioner has furnished us with an affidavit attesting to his indigency. As an indigent, he is entitled to have the record prepared at public expense. A writ of certiorari is issued to prepare the record.

A copy of this opinion shall be forwarded to the Committee on Professional Conduct. See Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982).

Motion granted.


text:
    George LEWIS v. STATE of Arkansas
    649 S.W.2d 188
    Supreme Court of Arkansas
    Opinion delivered April 25, 1983

      Appellant, pro se.

      Steve Clark, Atty. Gen., by. Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner George Lewis was convicted of aggravated robbery on July 15, 1982. No appeal was taken. Petitioner now contends that he wanted to appeal, but his retained counsel Ronald Griggs said it would cost $1,000.00 and did not advise him that he could appeal as an indigent. Mr. Griggs has filed an affidavit in response to petitioner’s motion, stating that he told petitioner that an appeal might be successful but expensive. He says that he heard no more from petitioner after telling him that the “costs alone” of an appeal would be about $1,000.00. Petitioner alleges that he did not know that an appeal was available to an indigent person until he talked to other prison inmates after the time for filing a notice of appeal had passed.

Criminal Procedure Rule 36.26 provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

It is apparent from the attorney’s affidavit in this case that he neither withdrew from the case in accordance with Rule 36.26 nor took any action to see that his client understood that an indigent could ask the trial court to appoint an attorney to perfect an appeal at public expense. Since counsel knew that his client wanted to appeal, he was obligated to file a notice of appeal or obtain permission from the trial court to withdraw. To do nothing amounted to a denial of effective assistance of counsel. Finnie v. State, 265 Ark. 941, 582 S.W.2d 19(1979). If petitioner could not afford the cost of appeal, a motion for permission to proceed as an indigent should have been filed in the trial court. An attorney cannot abandon a convicted defendant merely because his appeal must be pursued at public expense. An attorney who wishes to withdraw from a case must obtain permission from the trial court to withdraw by means of a petition to withdraw containing a statement of reasons for withdrawing. A copy of the request for withdrawal, if granted, should be sent to appellant. Osbourne v. State, 276 Ark. 479, 637 S.W.2d 535 (1982); Green v. State, 276 Ark. 313, 634 S.W.2d 140 (1982); Finnie, supra.

Since he has never been relieved as counsel, Mr. Griggs remains attorney of record. Petitioner has provided this Court with an affidavit attesting to his indigency and is eligible to have counsel appointed. Therefore, petitioner’s motion for belated appeal is granted and Ronald Griggs is appointed counsel on appeal. A writ of certiorari shall be issued to prepare the record.

Motion granted.


author: George Rose Smith, Justice.

text:
    Harvey Lee SMITH v. STATE of Arkansas
    CR 83-24
    649 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983

      William R. Simpson, Public Defender, by: Jerome Kearney, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On conviction for aggravated robbery and first degree battery the appellant was sentenced to consecutive 25-year and 30-year sentences. His only argument for a new trial is that the trial judge should not have admitted his confession into evidence. We agree with the trial judge.

When the appellant and a companion attempted to hold up a grocery store, the proprietor thwarted the attempt by opening fire with his own gun, hitting Smith three times. After an operation the bullets were still somewhere in Smith’s body when the police took his statement three days later. The nurse told them that it was up to Smith to decide whether to make a statement. The officers testified that Smith was sitting in a chair, that he was warned of his rights, that he understood them, that he gave a coherent account of the attempted robbery, and that he did not appear to be under drugs or sedation. Smith did not testify at the Denno hearing.

Counsel rely for reversal on the holding in Mincey v. Arizona, 437 U.S. 385 (1978). There, however, the court held that the statement was involuntary because the accused was barely conscious, was in intensive care, had a tube in his mouth that kept him from talking, and more than once asked in writing for a lawyer. We find no controlling similarity between that case and this one.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Charles D. RAGLAND, Comm’r of Revenues, Dept. of Finance & Administration v. LYON’S MACHINERY COMPANY, INC.
    82-296
    649 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983
    [Rehearing denied June 13, 1983.]

      Kelly S. Jennings, for appellant.

      David L. Hale and Rogers Cockrill, for appellee.
   Darrell Hickman, Justice.

This is an appeal from a decision by the Pulaski County Chancery Court holding that certain equipment sold by Lyon’s Machinery Company, the appellee, is exempt from the Gross Receipts Act. The statute exempts from sales tax, equipment sold that is used directly in manufacturing. The chancellor held that the equipment is used in the “manufacture” of concrete and, therefore, is exempt under Ark. Stat. Ann. § 84-1904 (r) (2).

The State argues on appeal that the equipment is not used in the “manufacture” of a product within the meaning of the statute and requests that the judgment be reversed. We find the chancellor was wrong, reverse the decree, and remand the cause for entry of judgment for the State.

Lyon sells ready-mix concrete plants, which are generally called “batch” plants, and according to the undisputed evidence these plants are used to mix cement, sand, gravel and water to produce ready-mix concrete. The batch plants are expensive and modern machinery for mixing cement. While the appellee presented a good deal of testimony that the ready-mix concrete industry has become very sophisticated and technical, using computers to insure quality, it is essentially the same business that it was in 1965. In 1965, we decided the case of C.J.C. Corp. v. Cheney, 239 Ark. 541, 390 S.W.2d 437 (1965) that ready-mix batch plants were not exempt from taxation as manufacturing equipment. We held that such equipment was simply used to mix and process certain ingredients and was not used in manufacturing. The only difference between the batch plants here and in C.J.C. Corp. is that water is added in the batch plants in question and it was not in the C.J.C. Corp. case. That is not a significant or controlling factor. The machinery is still just used for mixing materials and does not produce a truly finished product, such as concrete blocks. It is the burden of the taxpayer to prove beyond a reasonable doubt that equipment is exempt from taxation. C & C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983). We can find no basis for distinguishing this case from our decision in C.J.C. Corp. v. Cheney, supra. Therefore, we reverse the chancellor’s decision.

The second issue raised on appeal, whether certain items such as belt conveyors, water heaters, bins, and so forth are used directly in the manufacturing process, becomes moot in view of our decision on the main issue.

Reversed and remanded.


text:
    Oneta ALLEN, Fletcher Harold ALLEN & Aleta M. HAMLIN v. Jean WALLIS
    83-64
    650 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983
    [Rehearing denied May 31, 1983.]

      Jack M. Lewis, for appellants.

      Dan Stripling, for appellee.
   Darrell Hickman, Justice.

This is an appeal from the Probate Court of Van Burén County, Arkansas, which found the appellants, the three children of Fletcher Haywood Allen, were not Allen’s legitimate children, and, therefore, not lawful heirs of Allen’s uncle, Wager Kirkwood, who died intestate in 1979. The judge held the appellee, Jean Wallis, to be the only legitimate child of Allen.

The probate judge based his decision on two erroneous premises: The first was that the appellants’ claim accrued before the law was changed allowing illegitimtes to inherit; the second error was holding that the appellants had to prove their parents were married by clear, cogent, and convincing evidence. We would uphold his decision even though the wrong reasons were used, if he had reached the right result. But since we find by a preponderance of the evidence that the parents were married and that the appellants were entitled to inherit through their father pursuant to Ark. Stat. Ann. § 61-141 (Supp. 1981), we reverse the judgment.

The appellants’ parents had lived together about seventeen years, holding themselves out as husband and wife. There is no doubt about that; but also there is no doubt the appellants could not produce a marriage certificate. They had three children: Oneta Allen, Fletcher Harold Allen, and Djxie Aleta Marie Hamlin.

Allen lived in Texas with the children’s mother for a time in 1943, and Texas is a state which recognizes common-law marriages. They lived in Arkansas from 1944-1947, and from 1948 until 1961, when they separated. Fletcher Allen died in 1969.

Apparently it was at Fletcher Allen’s death that his daughter, Jean Wallis, a child of a prior marriage, learned that her father had other children. Mr. Allen’s uncle died in 1979 and an administrator was appointed. By the law of descent and distribution one-half of his estate would go to Fletcher Allen’s childrén and one-half to other heirs. It is only the half to go to Fletcher Allen’s children that was disputed. The appellee filed a petition for the court to determine heirs and the appellants were served notice. At this time Aleta was twenty-six years old, Fletcher was twenty-one, and Oneta was twenty.

The facts are largely undisputed. Appellant Fletcher Harold Allen said he never knew his parents were not married. The birth certificates of all three children showed Fletcher Allen as the father; two of the certificates had “Mrs. Fletcher Allen” and “Iva Allen” as the mother. The appellants conceded that no certificate of marriage could be produced. Testimony was offered that the Allens lived in Texas in 1947 and held themselves out as husband and wife.

In 1948 Fletcher Allen mailed Iva a postcard in Indiana, a state which recognizes common-law marriages, and addressed it to “Mrs. Fletcher Allen.” In Clarksville, Arkansas, a newspaper announcement appeared announcing the birth of Dixie Aleta Marie, daughter of Mr. and Mrs. Fletcher Allen, in 1953.

The probate judge denied the claim on the two premises we have recited, but he found unequivocally that the appellants were indeed the children of Fletcher Allen. However, he held that they could not inherit as illegitimate children pursuant to Ark. Stat. Ann. § 61-141 because their claim was barred by our decision in Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979), which held that Trimble v. Gordon, 430 U.S. 762 (1977), which allowed illegitimates to inherit, could not be applied retroactively and Fletcher Allen had died in 1969. This was wrong because the children did not become heirs of their uncle until the uncle’s death in 1979, and not at the death of their father in 1969. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979). Even so, our disposition of the case rests on the fact that there was a preponderance of the evidence that the Allens had a marriage according to Texas law.

The probate judge found that the appellants had not proved the common-law marriage by clear, cogent and convincing evidence. That was an incorrect statement of the appellants’ burden. The appellants need only show the marriage by a preponderance of the evidence. See Evatt v. Miller, 114 Ark. 84 (1914). We find that they met their burden.

A marriage by “common-law” is recognized in Texas according to Tex. Code Ann. § 1.91 (a) (2) (b):

(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
(b) In any proceeding in which a marriage is to be proved under Subsection (a) (2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.

Every bit of the evidence supports the contention that the parties agreed to live together as husband and wife and held themselves out as such. Further in Coogler v. Dorn, 231 Ark. 188, 328 S.W.2d 506 (1959), we said:

Where there is cohabitation apparently matrimonial, a strong presumption of marriage arises which increases with the passage of time, during which the parties lived together as husband and wife, especially where the legitimacy of a child is involved. This rule was recognized by this Court in Martin v. Martin, 212 Ark. 204, 205 S.W.2d 189. The burden is on one claiming otherwise to prove there was not such marriage.

Such a finding makes the appellants the legitimate children of Fletcher Allen and, therefore, his lawful descendants, entitled to inherit from his uncle’s estate.

Over the objections of the appellants a decree from the Van Burén Chancery Court was introduced and it concerned a deed Fletcher Allen executed in 1965 after he and Iva separated. Iva claimed that she and Fletcher Allen had been married and that she had a one-half interest in the land deeded. The chancellor, in that case, found that no marriage existed, but that Iva had owned the land with Allen as a tenant-in-common, and awarded her $5,000.

The appellee argued below that the 1970 decree collaterally estopped the appellants’ claim their parents were married. Neither res judicata nor collateral estoppel was pleaded and they are both affirmative defenses which must be pleaded. Kendrick v. Bowden, 211 Ark. 196, 199 S. W.2d 740 (1947). The trial court specifically did not rely on the decree in his judgment. Therefore, we cannot rely on the decree as controlling on the issue.

Reversed and remanded.


text:
    Richard Alan CURRY v. STATE of Arkansas
    CR 82-157
    649 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983
    [Rehearing denied May 16, 1983.]

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Richard Alan Curry, was convicted of the crime of possession of a controlled substance, methaqualone, under the Arkansas Uniform Controlled Substances Act. On appeal he contends that the Act must be declared invalid for either of two reasons: First, it is an unconstitutional delegation of legislative authority and, second, it violates the fair notice requirements of due process of law. We affirm the conviction. Jurisdiction is in this Court since the appeal involves a challenge to the constitutionality of an act of the General Assembly. Rule 29 (1) (a) and (c).

I

The doctrine of separation of powers is well established in Arkansas. Ark. Const. Art. IV, §§ 1, 2; amend. VI, § 2; amend. VII, § 1. The authority to define crimes and fix the punishment for those crimes is vested exclusively in the legislative branch of government. If an act is incomplete and authorizes a commission to decide what shall and what shall not be a violation of the law it will be held unconstitutional as an improper delegation of legislative authority. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179(1983). However, the limitation against the delegation of lawmaking power does not prevent the General Assembly from authorizing boards or commissions to determine facts upon which the law would be put into execution. McArthur v. Smallwood, 225 Ark. 328, 331, 281 S.W.2d 428, 431 (1955).

The act at issue is a Uniform Act which has been adopted in 46 states, the Virgin Islands and Puerto Rico. It is comprised of six articles: Definitions, Standards and Schedules, Regulation of Distribution by Prescription, Criminal Penalties, Enforcement and Administrative Provisions, and Procedure and Title. Appellant contends that Article II, the determination of controlled substances article, is unconstitutional. That article embraces six different schedules of controlled substances which are codified in 16 statutes, Ark. Stat. Ann. §§ 82-2602 through 82-2614.3 (Repl. 1976 fe Supp. 1981). Appellant makes numerous arguments in favor of his contention. For example, in oral argument he contended that the distinctions between Schedule III substances, Ark. Stat. Ann. § 82-2608 (Supp. 1981), and Schedule IV substances, Ark. Stat. Ann. § 82-2610 (Supp. 1981) are so slight that the General Assembly had abdicated to the executive branch its duty to decide what shall and what shall not constitute a crime. He makes similar arguments with regard to Schedules V and VI. He challenges each of the six Schedules contained in Art. II. However, we do not reach constitutional issues on such a broad basis. A party has standing to challenge the constitutionality of a statute only so far as it affects his own rights. Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979). Traditionally we do not decide constitutional issues on a broader basis than the record requires. Since we will not pass on the validity of any part of the Arkansas Uniform Controlled Substances Act now shown to have been violated, our review will be limited to the statute under which appellant was convicted, Schedule II or Ark. Stat. Ann. § 82-2606 (Supp. 1981).

The Arkansas Uniform Controlled Substances Act became law in 1971. 1971 Ark. Acts 590. The 1981 Act listed the substances which were contolled pursuant to Schedule II, 1971 Ark. Acts 590, Art. 2, § 6 (codified at Ark. Stat. Ann. § 82-2607 [Repl. 1976]). The original act and all of its amendments provide for a commissioner who could add to, delete, or reschedule the substances enumerated by using certain criteria. Ark. Stat. Ann. §§ 82-2602, -2606 (Supp. 1981). The listing of substances in Schedule II was repeated by § 23 of Act 898 of 1979 which provided that the schedules in effect on the effective date of the Act should remain in effect until rescheduled by the Commissioner. The original act and all amendments provide that if a substance becomes controlled under federal law it shall also become controlled under state law unless the Commissioner objects to its inclusion. Ark. Stat. Ann. § 82-2602 (d) (Repl. 1976 & Supp. 1981).

The facts which create the narrow issue in this case are that methaqualone was classified as a Schedule II controlled substance by the federal government effective October 4, 1973. Notice of that Ruling was given in the Federal Register. 38 Fed. Reg. 27516 (1973). The state Commissioner did not object to methaqualone becoming a controlled substance and so, by operation of law, it became controlled in this State. See Ark. Stat. Ann. § 82-2602 (d) (Supp. 1981). Upon this factual basis, two questions concerning delegation arise: (1) Whether there was an unlawful delegation to the federal government, and (2) whether there was an unlawful delegation to the Commissioner.

In answer to the first question appellant argues that prior to 1979, federal modifications of the schedules resulted in automatic modifications of the Arkansas schedules under our law. Since methaqualone was scheduled prior to 1979, appellant argues that the Arkansas Uniform Controlled Substances Act unconstitutionally delegated legislative determinations of what a controlled substance is to the Federal Register.

If appellant’s argument was factually correct and, in those years prior to 1979 when methaqualone was listed, the legislature had given to the federal government all control over scheduling, there would have been an unlawful delegation of authority. Cheney v. St. Louis & Southwest Railway Co., 239 Ark. 870, 394 S.W.2d 731 (1965); Crowley v. Thornborough, 226 Ark. 768, 294 S.W.2d 62 (1956). However, contrary to appellant’s assertions, the original act of 1971, the 1973 amendment and the 1979 amendment all gave the Commissioner authority to reject the listing of any federally controlled substance. 1971 Ark. Acts 590, § 1 (d), p. 1321; 1973 Ark. Acts 186 § 1, p. 640 (codified at Ark. Stat. Ann. § 82-2602 (d) [Repl. 1976]); 1979 Ark. Acts. 898 § 3, p. 1977 (codified at Ark. Stat. Ann. § 82-2602 (d) [Supp. 1981]). Thus there was no unlawful control or delegation of legislative power given to the federal government.

The obvious succeeding question is whether Schedule II of the Arkansas Uniform Controlled Substances Act constitutes an unlawful delegation of legislative authority to the Commissioner. The General Assembly has defined the type of possession of a controlled substance which will constitute a crime. It has mandated that no substance shall be listed as controlled unless it has a potential for abuse and a history or pattern of abuse. In addition, the following are considered: The significance of that pattern of abuse, the risk to the public, the substance’s potential to produce psychic or psychological dependence viewed in the light of current scientific knowledge, the scientific evidence of its pharmacological effect, if known, and whether the substance is an immediate precursor of an already controlled substance. Ark. Stat. Ann. § 82-2602 (a) (Repl. 1976 & Supp. 1981). The General Assembly more particularly defined Schedule II substances as those which have a high potential for abuse but are currently accepted in medical use, and the abuse of which may lead to severe psychic or physical dependence. Ark. Stat. Ann. § 82-2606 (Repl. 1976 & Supp. 1981). These are illuminating criteria which direct the Commissioner to reject any federal listings which might not be in conformity with them. They guide the Commissioner in determining the facts upon which the law is to be put into execution. They are not vacant standards which allow a Commissioner to determine what shall and what shall not constitute a crime. The General Assembly has not abdicated its legislative authority.

We are not unmindful of contrary decisions from other jurisdictions. See, e.g., State v. Krego, 433 N.E.2d 1298 (Ohio Misc. 1981); State v. Rodriguez, 379 So.2d 1084 (La. 1980); State v. Gallion, 572 P.2d 683 (Utah 1977); Sundberg v. State, 216 S.E.2d 332 (Ga. 1975); Howell v. State, 300 So.2d 774 (Miss. 1974). Some of these cases are distinguishable because of wording differences in the pertinent schedule or statute. However, the majority of jurisdictions hold in accord with our view. See, e.g., Ex parte McCurley, 390 So.2d 25 (Ala. 1980) (involving the identical Schedule II); State v. Lovelace, 585 S.W.2d 507 (Mo. 1979); State v. Uriel, 255 N.W.2d 788 (Mich. 1977); State v. King, 257 N.W.2d 693 (Minn. 1977); Threlkeld v. State, 558 S.W.2d 472 (Tex. Crim. 1977); Cassell v. State, 317 So.2d 348 (Ala. 1975); State v. Lisk, 204 S.E.2d 868 (N.C. 1974); Hilton v. State, 503 S.W.2d 951 (Tenn. 1973); Hohnke v. Commonwealth, 451 S.W.2d 162 (Ky. 1970); State v. Davis, 450 S.W.2d 168 (Mo. 1970); State v. Sargent, 449 P.2d 845 (Or. 1969). See also Annot., 47 A.L.R. Fed. 869 (1980) (sets out the analogous federal cases which have unanimously held in accord with our majority view).

This decision is based solely on principles of law but we are not unmindful that it is also a practical one. The General Assembly meets in regular session only 60 days every other year. This infrequency of sessions does not offer timeliness to the amorphous and ubiquitous problems associated with the manufacture and distribution of illicit drugs. In addition, even if the members of the General Assembly were all trained chemists and pharmacists, which they are not, it would be impossible for them to keep abreast of the constantly changing drugs and their dangers. A Commissioner with specialized knowledge of these changes can schedule substances in a timely manner.

This interpretation of the Act is consistent with our well-established rule of statutory interpretation that an act of the legislature is presumptively constitutional and all doubt as to its validity must be resolved in favor of the act unless it is clearly incompatible with our constitution. Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973).

II

Appellant next contends that he was denied fair notice that possession of methaqualone constituted a crime and, therefore, he was denied due process. The Arkansas Uniform Controlled Substances Act requires that the schedule be published in accordance with the Administrative Procedure Act, Ark. Stat. Ann. § 5-703 (Repl. 1976 & Supp. 1981). Appellant does not contend that the notice provisions of the Administrative Procedure Act were not complied with. Instead, he cites 3 Ark. Reg. 1068-69 and argues that he lacked notice because the schedules were not published in the Arkansas Register. However, the schedules were in fact published with methaqualone appearing as a Schedule II substance in 1 Ark. Reg. 915 at page 918 and 2 Ark. Reg. 372 at page 375. Therefore, appellant’s argument has no merit.

The appellant makes a three sentence argument which might be construed as a contention that compliance with the Arkansas Administrative Procedures Act is not sufficient to comport with the constitutional requirements of due process. However, the appellant offers no convincing argument or citation of authority. Thus we do not consider it. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: Steele Hays, Justice.

text:
    AIRPORT CONSTRUCTION AND MATERIALS, INC. and NATIONAL BONDING AND ACCIDENT INSURANCE COMPANY v. Don BIVENS, d/b/a DON BIVENS CONSTRUCTION COMPANY
    83-78
    649 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983

      Clark, McNeil & Adkisson, for appellants.

      Friday, Eldredge & Clark, by: Bill S. Clark; and David Orsini, for appellee.
   Steele Hays, Justice.

On September 5, 1978, Airport Construction and Materials, Inc. entered into a contract with the United States for the repair of streets at the Little Rock Air Force Base. On April 11,1979, ACM subcontracted with Bivens for part of the work. A dispute arose as to the amount ACM was to pay Bivens, and this suit was brought by Bivens against ACM and its bonding company, National Bonding and Accident Insurance Company.

ACM defended on the ground that Bivens was not a licensed contractor under Ark. Stat. Ann. § 71-701 and therefore under § 71-713 Bivens was not permitted to bring any action in law or equity to enforce a contract entered into in violation of § 71-701. ACM also disputes the amount awarded Bivens. National Bonding made a motion to dismiss the complaint, on the grounds that the state court was without jurisdiction, that under the Miller Act (40 U.S.C. § 270a-270e), the suit must be brought in federal court. The motion was denied. The trial court found § 71-701 and § 71-713 inapplicable to the case and awarded $19,479.25 to Bivens. ACM and National Bonding have appealed.

I

ACM argues that the trial court erred in refusing to dismiss the case for appellee Bivens’ failure to comply with the licensing statute which would preclude him from bringing suit under § 71-713. Bivens relies on Leslie Miller Inc. v. State of Arkansas, 352 U.S. 187 (1956). In that case the U.S. contracted with Miller for construction work on an Air Force base in Arkansas. Miller was not licensed under § 71-701 and the state filed an information accusing him of violating § 71-713, which makes such an activity a misdemeanor. Miller was found guilty, this court affirmed, 225 Ark. 285, 281 S.W.2d 946 (1955), and the U.S. Supreme Court reversed. ACM’s basic contention is that while that case involved a contractor in a direct relationship with the federal government, the contract here is a private matter and the federal government is only coincidentally involved. ACM points out that the subcontract was made seven months after its contract with the U.S. and consequently the prime contract was in no way influenced by ACM’s subcontract with Bivens.

A reading of Miller, however, supports the trial court’s finding that the statutes in question are inapplicable to this case, and the stated rationale of that case would extend to the subcontractor here. This is not simply a private contract with the federal government coincidentally involved. The Miller court reviewed and compared federal and state requirements for licensing contractors and found conflict with the action each would take to ensure reliability of persons and companies contracting with the federal government. “Subjecting a federal contractor to the Arkansas contractor license requirements would give the state’s licensing board a virtual power of review over the federal determination of [the best candidate] and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.” Miller at 258.

Amplification of this policy makes it clear that were even the subcontractor subject to state regulations, the federal policy would be frustrated. Miller goes on to quote from Johnson v. State of Maryland, 254 U.S. 51, 41 S.Ct. 16 (1920):

“It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient. Miller at 259.

As Miller points out, when the government determines whom it will choose as the “responsible bidder” (pursuant to the Armed Services Procurement Act) a number of factors are considered. “[I]t involves an evaluation of the bidder’s experience, facilities, technical organization, reputation, financial resources and other factors.” The Court notes that the Armed Services Procurement Regulations defining a responsible contractor include:

(c) Has the necessary experience, organization, and technical qualifications and has or can acquire the necessary facilities (including probable subcontractor arrangements) to perform the proposed contract. 32 CFR § 2-406-3, Miller at 258. (our emphasis)

The government has chosen a specific bidder because it has determined that bidder can adequately fulfill the above stated requirements, including the choice of a competent subcontractor. Whether the federal government had relied specifically on a certain subcontractor, does not change the reasons for the policy. Were a government contract subject to interruption because of varying state requirements, when the federal government has already determined that the contractor has the capability to fulfill its requirements and control the project to its satisfaction, the supremacy policy would be largely undermined.

ACM also notes that the State of Arkansas has a legitimate interest in the standards of [bidder] responsibility, but such a point is without merit where the contract, as here, is made by the federal government, for work to be performed on federal property for federal use.

II

National Bonding argues that the trial court erred in its refusal to dismiss the complaint as to National for lack of jurisdiction. The bond furnished by National was a Miller Act Bond (required for specified federal construction projects under 40 U.S.C. § 270a-270e), which National argues gives federal courts exclusive jurisdiction. The requirement of a performance bond and payment bond is found in 40 U.S.C. § 270a. Section 270b (b) dictates the proper U.S. District Court in which any suit on a Miller Act Bond must be brought. Bivens argues that § 270b (b) is only a venue statute, and such a suit may be brought in state court as well as federal. We agree that this section indicates venue, but only in the context of venue within the federal system. It appears well settled that federal jurisdiction is exclusive on any Miller Bond suit. See 40 U.S.C. § 270b, n.7; 100 ALR 2d 456.

Bivens argues further that his suit was not based on the Miller Act, but rather on National’s liability under its payment bond under state law. But the plain language of the Miller Act under § 270a clearly requires both a performance and a payment bond under this contract. Bivens offers no basis for release from that clear language. He does cite Lichter v. Henke, 35 F.Supp. 388 (W.D. Mo. 1940), but that case does not sustain the point. There, the plaintiff sued on a bond under the Miller Act in federal court, but maintained a second count for breach of contract. The district court rrferely held that the breach of contract action was not within the jurisdiction of that court and must be brought in state court.

A similar contention was made in General Equipment Inc. v. U.S. Fidelity and Guaranty Insurance Co., 292 So.2d 806 (La. App. 1974). Appellants claimed that apart from the payment bond under the Miller Act, there existed a separate surety agreement upon which they were suing. The court found the claim unsubstantiated by the evidence. But the court stated and the appellants agreed that a “suit against a surety on a performance and payment bond [under the Miller Act] must be brought in the U.S. District Court.” (our emphasis) General Equipment at 807.

111

Finally, ACM argues that the trial court erred in calculating the amount due Bivens under his subcontract. The judgment includes two items which ACM disputes:

Item 4 1,100 tons SB2 at $8.00 $8,800.00

Item 8 1,903 tons SB2 at $8.00 $15,224.00

ACM insists that Bivens did not furnish the 1,100 tons of SB2 under item 4, nor the 1,903 tons of SB2 under item 8 and contends there is no evidence that items 4 and 8 were furnished by Bivens. Admittedly, there is confusion over these items, which doubtless stems from a change in the specifications of the contract which the parties agreed to while the contract was in progress. Bivens testified that after the work had progressed for several days he was asked by ACM if he would agree to switch to asphalt in place of SB2 as a base material in the patching process, which would enable the work to move more rapidly. (T. 88-92). He testified that he agreed on the understanding that ACM was to supply the asphalt. Evidently the trial court accepted that testimony and while we cannot independently verify these two disputed items, we are satisfied that the trial court accurately computed what was due. For one thing, Bivens submitted an invoice to ACM dated August 17,1979, showing a balance of $19,479.25 due him. When ACM answered on September 17, 1979, it acknowledged in effect the correctness of “Item 4, Base Course 1,100 tons, $8.00, $8,800.” Thus, the argument that Bivens is not entitled to this amount loses its force. As to item 8, we are unable to identify it in the testimony, but we can rely, and do, on the fact that two exhibits to Bivens’ testimony were introduced in evidence consisting of copies of his itemized invoices to ACM showing the balance due of $19,470.25, which coincides (approximately) with the amount determined by the trial court to be due, i.e. $19,282.00. We conclude that the trial court’s calculations are not clearly erroneous. ARCP 52.

The judgment is affirmed as to appellant, Airport Construction and Materials, Inc., and reversed and dismissed as to appellant, National Bonding and Insurance Company.

       71-701. Contractor defined — Exceptions. — For the purposes of this Act [§§ 71-701 — 71-720], a “contractor” is defined to be any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or to manage the construction, erection, alteration, or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, highway, sewer, grading or any other improvement or structure, except single-family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00), or more,[.] It is the intention of this definition to include all improvements or structures, excepting only single-family residences.
      Architects and engineers, whose only financial interest in a project shall be the architectural or engineering fees for preparing plans, specifications, surveys, and such supervision as is customarily furnished by architects and engineers, are specifically excluded from this Act.

       71-713. Penalties for operating without certificate or giving board false evidence. — Any contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct or contracts to construct, or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more without first having procured a license to engage in the business of contracting in this state, or who shall present or file the license certificate of another, or who shall give false or forged evidence of any kind to the Board, or any member thereof, in obtaining^ certificate of license, or who shall impersonate another, or who shall use an expired or revoked certificate of license, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars ($100.00), nor more than two hundred dollars ($200.00) for each offense, each day to constitute a separate offense. No action may be brought either at law or in equity to enforce any provision of the contract entered into in violation of this act [§§ 71-701 — 71-720]. The doing of any act or thing herein prohibited by any applicant or licensee, shall in the discretion of the Board constitute sufficient grounds to refuse a license to an applicant or to revoke the license of a licensee.


text:
    Joyce T. FERGUSON et al v. Jake BRICK et al
    82-288
    649 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983

      Claudell Woods, East Arkansas Legal Services, for appellants.

      McHenry, Skipper ir Barns, by: Merl O. Barns, for appellees.
   Per Curiam.

We deny movant permission to file an amicus curiae brief. Last week we denied a similar motion. These rulings represent a slight shift in the practice of this Court and, for the benefit of the bar, we issue this per curiam opinion.

The term “amicus curiae” is old Latin which literally means “a friend of the court.” 3A C.J.S. Amicus Curiae % 2 (1973). Historically, courts welcomed the aid of an amicus since “it is for the honor of a court of j ustice to avoid error. ’ ’ The Protector v. Geering, Hardees 85-86 (1656) 145 E.R. 394 (Ex.); see Note, Amici Curiae, 34 Harv. L. Rev. 773 n. 5 (1921). While the name has remained static, the undertaking of the amicus has changed from that of an impartial friend of the court to that of an acknowledged adversary. The transition has been discussed in three excellent law review articles. Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L. J. 694 (1963); Wiener, The Supreme Court’s New Rules, 68 Harv. L. Rev. 20 (1954); Harper and Etherington, Lobbyists Before the Court, 101 U. Pa. L. Rev. 1172 (1953). Krislov, in discussing the transition, states:

The Supreme Court of the United States makes no pretense of such disinterestedness on the part of “its friends.” The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented. At this level the transition is complete; at the other court levels it is in process. Thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy. [Footnote omitted.]

72 Yale L. J. at 704.

The consequences of the shift have been dramatic. A form of judicial lobbying is now regularly practiced by the United States Department of Justice as well as various other groups, particularly minority groups. As stated by Krislov:

Such briefs reached an apex of notoriety and criticism during the last half of the forties and the early fifties. A previous rise in the number of filings was a major factor in this criticism. In a classic instance, Lawson v. United States, [176 F.2d 49 (D.C. Cir. 1949), cert. denied, 339 U.S. 934 (1950)] the problem of the Hollywood “unfriendly ten” evoked attention through amicus curiae briefs from forty organizations. Left-wing groups were both aggressive and open in their efforts to exploit the increased significance of this avenue to interest participation. The National Lawyers Guild, for example, both was and is a major filer of amicus curiae briefs. The relation of the amicus brief to standard pressure group tactics has been made even more overt. Thus, the Communist Daily Worker has called upon individuals to file “personal” amicus curiae briefs by writing letters directly to the Justices. Clearly, amicus briefs are merely the most formal of a number of lobbying tactics which includeother devices such as the picketing utilized during the trial of Communist Party leaders under the Smith Act in New York City. Similarly in 1953, petitions were circulated by the National Committee to Secure Justice in the Rosenberg Case. A campaign of telegrams was part of the effort to save the life of Willie McGee, who had been sentenced to death in Mississippi. Mr. Justice Black, who had been generally sympathetic to interest group expression, found this a repugnant development and condemned the “growing practice of sending telegrams to judges in order to have cases decided by pressure.” He refused to read them and noted that “counsel in this case has assured me they were not responsible for these telegrams.”
The lack of discreetness here — the ignoring of the traditions and practices of the judicial process — has even been demonstrated by attorneys. Wiener characterizes a brief in Girouard v. United States as purposely ignoring in its preoccupation with propaganda the decisive issue on which the case turned. Similarly, the American Newspaper Publishers brief in Craig v. Harney [331 U.S. 367, 397 (1947)] evoked from Mr. Justice Jackson a strong response indicating that he thought its emphasis on the size and power of the constituent newspapers was neither of legal significance nor an accident but simply intimidation. (In fairness, it should be noted that size and distribution of membership are relevant to any showing of interest in an instant case and even amicus curiae briefs are expected to represent a specified rather than a diffuse interest.) [Footnotes omitted.]

Id. at 710-11.

Perhaps an even more dramatic consequence of the change is the change in the attitude of the court that appoints an amicus to actively seek implementation of a decree. This consequence is described by Krislov as follows:

Indeed “friendship” at this point becomes a peculiar form of advocacy. The amicus becomes the spokesman for court interests in a vital and active sense. This is well borne out in the recent cases involving desegregation. The Supreme Court’s device of delegating to the district courts the implementation of its desegregation decision has thrust upon the district courts an unusual burden of decision and activity. Where defiance has occurred, the courts have been particularly dependent upon the activities of the executive and have acknowledged this dependency.
So in both the Little Rock, Arkansas, and the University of Mississippi integration crises the federal district court, on its own initiative, designated the United States Attorney General and The United States Attorney as amici and specifically instructed its designated amici to carry out activities on behalf of the court. On September 9, 1957, in order to enforce its prior determinations the district court in Arkansas invited the Attorney General of the United States and the United States Attorney to
come into the case as [amici] curiae and to commence injunction proceedings against the Governor and his subordinates “to prevent the existing interferences with and obstructions to the carrying out of the orders heretofore entered by this Court in this case.” [Aaron v. Cooper, 163 F. Supp. 13, 16 (E.D. Ark. 1958)].
On appeal to the Court of Appeals for the Eighth Circuit, the case was styled Faubus v. United States (amicus curiae) [254 F.2d 797 (8th Cir. 1958)]. Among other claims, the attorneys for Governor Faubus argued that the United States had no standing to file such a petition for injunctive relief and that the court had erred in giving the United States such powers. The court of appeals, however, found that this was in accordance with past procedure and that it was “proper for the court to do all that reasonably and lawfully could be done to protect and effectuate its orders and judgments.” The district court had acted properly in asking the law officers of the United States to act on its behalf for it “could not with propriety employ private counsel to do the necessary investigative and legal work. It has, we think, always in the past been customary for a federal district court to call upon the law officers of the United States for aid and advice in comparable situations.”
There was no need to go into the legal theory too thoroughly, the court of appeals pointed out, inasmuch as the plaintiffs in the Aaron case were still real parties in interest and had joined the government in requesting this injunction. Nonetheless, the court of appeals emphatically upheld the authority both of the court and its amici:
In our opinion the status of the attorney general and the United States attorney was something more than that of mere amici curiae in private litigation. They were acting under the authority and direction of the court to take such action as was necessary to prevent its orders and judgments from being frustrated and to represent the public interest in the due administration of justice. [Footnotes omitted.]

Id. at 718-19.

In Arkansas, this Court for many years has authorized attorneys to come into cases as amicus curiae. Although we have consistently limited their briefs to the facts proven at trial and the points raised by the parties on appeal, Mears v. Little Rock School District, 268 Ark. 30, 593 S.W.2d 42 (1980), we have traditionally welcomed these briefs for there is always the possibility that an amicus brief will have legal significance. For example, in a recent case we received 20 highly partisan amici briefs from the financial community. McInnis v. Cooper Communities, Inc., 271 Ark. 503, 611 S.W.2d 767 (1981). At the most, two of the briefs had legal significance, while the rest were simply endorsements of the briefs filed by the parties and added nothing to the arguments except the supposed political prestige of the group making the endorsement. To knowingly allow such briefs is to invite a charge of political pressure and, in addition, waste our time.

In the federal court system there appears to be a new trend to question the filing of amici briefs, especially at the district court level. New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196 (1st Cir. 1979); Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970); Leigh v. Engle, 535 F. Supp. 418 (E.D. Ill. 1982). We share in questioning the filing of amici briefs in one circumstance and, henceforth, we will deny permission to file a brief when the purpose is nothing more than to make a political endorsement of the basic brief.

The obvious difficulty with this approach is that we normally wade through the entire brief before we can know whether it serves a valid purpose. However, Rule 19 (a) requires the movant seeking permission to file as an amicus to show why such a brief is “thought to be necessary.”

On the motion now before us the movant states:

1. Mr. Jackson is a resident and a registered voter of West Memphis, Arkansas.

2. Mr. Jackson voted in the mayoral election held on November 2, 1982.

3. It is Mr. Jackson’s good faith belief that the mayoral election was held in a fair manner and .that Leo Chitman is the duly authorized Mayor of West Memphis.

4. Mr. Jackson believes that to not retain Leo Chit-man as Mayor of West Memphis would be detrimental to minority and low income persons in the state and to their belief in the political process.

5. As a citizen of West Memphis, Mr. Jackson would like to have further input into retaining Leo Chitman as Mayor of West Memphis by filing this brief.

In this particular motion for permission to file an amicus curiae brief it is obvious that the movant anticipates discussing nothing of legal significance. The proposed amicus brief would be solely for the purpose of judicial lobbying. Therefore we deny permission to file the brief.


text:
    William E. PITCOCK v. STATE of Arkansas
    CR 83-48
    649 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered May 2, 1983

      Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner William E. Pitcock was convicted by a jury of burglary, theft of property and robbery and sentenced to a total term of 20 years imprisonment in the Arkansas Department of Correction and fined $300.00. The Court of Appeals affirmed. Pitcock v. State, not designated for publication (August 26, 1981). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

I.

Petitioner raises a number of issues in his lengthy petition. He contends that each one establishes that his sentence was imposed in violation of the laws and constitution of this State and the United States. The allegations of constitutional violations are:

A.

Petitioner was denied a speedy trial and denied due process because he was held in jail without counsel from the date of his arrest on December 26, 1979, until May 1, 1980.

We find no merit to either argument. The trial in this case was held in November, 1980, more than six months after counsel was appointed. Petitioner does not say that he was denied a fair trial or that he was prejudiced by the delay in appointing counsel. Relief cannot be granted on an unsupported allegation. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). There is also no merit to the claim that he was denied a speedy trial. Petitioner’s trial was held within the second full term of court following his arrest, which was within the time period for a speedy trial; in fact, since his parole was revoked and he was incarcerated for another crime pending trial on the instant charges, he could have been tried even later. Furthermore, the speedy trial issue was raised at trial and could have been raised on appeal. The question of the proper time for appointment of counsel could also have been raised at trial. Rule 37 was not designed to take the place of raising issues in accordance with procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981).

B.

Petitioner was prejudiced by the prosecutor’s commenting in closing argument that he was brought from prison for trial and by the failure of the court reporter to transcribe the entire opening statements and closing arguments.

The court reporter transcribed only the objections made during the opening statements and closing arguments. This in itself is not a denial of due process of law as petitioner suggests. The State is required to afford appellant a record of sufficient completeness so that proper consideration can be given to the errors argued on appeal. Mayer v. City of Chicago, 404 U.S. 189 (1971); Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978). There is no absolute right to a verbatim transcript of the opening and closing remarks.

If the prosecutor did mention petitioner’s being in prison on other charges, it may have been error; but since the issue could have been raised at trial relief can be granted under Rule 37 only if the error was a fundamental one because petitioner is alleging a constitutional violation, not ineffective assistance of counsel. An evidentiary hearing is warranted when an allegation of ineffective assistance of counsel indicates that counsel’s representation prejudiced the petitioner, and that the prejudice was such that he may have been denied a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). To prevail on an allegation of a constitutional violation, however, the constitutional question presented must be of such fundamental nature that the judgment is rendered void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied. 268 Ark. 315,599 S.W.2d 729 (1980). See also Collins, supra; and Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979). Rule 37 does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for raising issues at trial or on appeal. Swindler, supra; Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973). Even if we accepted petitioner’s statement of the prosecutor’s remarks, we do not find that the error was of such fundamental nature that the judgment in his case was rendered void. (Petitioner did not take the stand, therefore the question of his prior crimes did not arise in testimony. The State withdrew the habitual offender allegation on its own motion and the record contains no reference in the presence of the jury to petitioner’s prior convictions or to his incarceration in prison. Defense counsel made a point of asking the court to excise one word from a pre-trial statement given by petitioner which suggested that he was out on bond when the crime was committed. The emphasis placed on assuring that no reference would be made to petitioner’s prior offenses casts doubt on petitioner’s claim that the prosecutor made the prejudicial statement as alleged.)

C.

The pretrial identification procedures were unconstitutional and the jury should have been instructed on identification testimony.

Petitioner says that a photograph was taken of him at the county jail and shown to witnesses so that they could identify him at trial. The record indicates that the witnesses who identified petitioner at trial were eyewitnesses to the crime. They testified that they recalled him from the crime scene. No mention is made of a photograph, and petitioner has not demonstrated any undue prejudice to him resulting from the identification process.

Petitioner’s allegation that the court refused to instruct the jury on identification testimony is unclear. It does not appear from the record that any such instruction was requested. Petitioner seems to say that he was entitled to an instruction of some sort on identification testimony and that the trial court should have supplied it of its own volition. If this is his meaning, he is not correct. See Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

D.

His conviction was based on evidence that was circumstantial, insufficient and inadmissible hearsay.

Attacks on the nature and sufficiency of the evidence and the credibility of witnesses are direct challenges to the judgment; and, as such, they are not proper challenges under Rule 37. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Rule 37 affords a remedy when the sentence in a case was imposed in violation of the constitution of the United States or of this State or “is otherwise subject to collateral attack.” Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967).

II.

Petitioner also alleges ineffective assistance of counsel in that his attorney did not point out that people involved in the “scheme” were not charged. He does not say who the other persons were or to what scheme he is alluding. As a conclusory statement, the allegation does not merit further consideration. Bosnick, supra; Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

He contends that counsel conferred with him less than one hour and was thus unprepared for trial. He gives no example of counsel’s lack of preparation, nor does he allege that he was prejudiced by counsel’s conduct. To establish ineffective assistance of counsel, a petitioner must show by clear and convincing evidence that he was prejudiced by his attorney’s representation and the prejudice was such that he was denied a fair trial. Hill v. State, 278 Ark. 194, 644 S. W.2d 282 (1983). Petitioner here has not demonstrated that counsel was less than competent.

Petition denied.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Jerome Allen BARGO, Terry Gene HOWELL, Gary MORSE, et al v. A. L. LOCKHART, Director, Arkansas Department of Correction, and Steve CLARK, Attorney General
    CR 82-143
    650 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983
    Appellants, pro se.

      Steve Clark, Atty. Gen., by: LeslieM. Powell, Asst. Atty. Gen., for appellees.
   Richard B. Adkisson, Chief Justice.

Appellants, Jerome Allen Bargo, Terry Gene Howell, and Gary Morse filed a petition for writ of habeas corpus with the Lincoln County Circuit Court wherein they challenged the determination of their parole eligibility date by the Arkansas Department of Correction. The trial court dismissed, and on appeal we affirm.

The relevant facts can be summarized as follows: Appellants had all been convicted of various offenses and were serving time in the Department of Correction. In 1979 appellants were convicted and given additional sentences for escape. Appellant Bargo was given a six-year sentence to run concurrent with his original five-year sentence. Appellants Howell and Morse were given four-year sentences to run consecutive to their original 21 and 18-year sentences respectively.

Sometime after these escape convictions the Department of Correction informed appellants that their parole eligibility would now be determined under the more stringent provisions of Ark. Stat. Ann. § 43-2829 (Repl. 1977 rather than Ark. Stat. Ann. § 43-2807 (Repl. 1977), which had governed their original sentences. Appellants responded by filing this petition.

We must first decide whether a writ of habeas corpus is the appropriate method to challenge the determination of appellants’ parole eligibility, and we conclude that it is not. Habeas corpus petitions are restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).

Furthermore, in the similar case of Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967) we held that a habeas corpus petition was not the correct way to attack a revocation of parole. “Such an attack must be by direct proceeding and not collateral, as was attempted by appellant Webb.” Webb, supra, See also Davis v. Mabry, 266 Ark. 487, 585 S. W.2d 949 (1979) where this Court ruled upon an inmate’s parole eligibility date after he had filed a “petition for declaratory judgment and mandamus” in circuit court.

The trial court’s dismissal of appellants’ writ of habeas corpus is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. These appellants sought the same relief we granted in Davis v. Mabry, 266 Ark. 487, 585 S. W.2d 949 (1979). We granted relief to Davis, who filed a petition in the circuit court which was described as a petition for declaratory judgment and mandamus. The petition named the Director of the Department of Corrections and members of the parole board as respondents and sought to force a hearing on parole consideration. The circuit court denied the petition as it did in the case before us. We reversed there as we should do in this case. In Davis we stated:

There is no doubt that a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would be unconstitutional as an ex post facto law, in violation of Art. 2, § 17 of the Constitution of Arkansas ... We hold that the parole law which governed... on the date appellant was sentenced... is the statute to be applied to appellant’s application for parole, if the application of a later statute would operate seriously to his disadvantage, as Act 93 of 1977 would, in this case...

Each of the present petitioners was serving a sentence prior to being sentenced for escape from that confinement. They would have been entitled to a hearing on their parole eligibility at a fixed time. However, being sentenced after Act 93 of 1977 was passed they are not now eligible for parole on the dates they would have been considered had they not been sentenced for escape. A more clear and distinct ex post facto application could not be found. It does not matter that petitioners may not make parole because of subsequent activities. They are nevertheless entitled to be considered on the dates they would have been considered without passage of Act 93. This is the same act we considered in Davis v. Mabry, supra.

The majority opinion does not reach the argument presented by appellants but instead denies relief on the ground that appellants, who are acting pro se, placed the wrong title on their petition. This is not only a waste of judicial time it is a denial of a substantial right of the appellants. We have treated a petition as amended to conform with the intention of petitioner. Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971). In Walker we said, “Criminal Rule 1 was adopted, not only to afford post-conviction relief where no established procedure existed, but to avoid technical niceties in existing procedures.” On an occasion where a petitioner failed to verify his petition as required under Rule 1, his petition was denied by the trial court at least partially on the failure to verify. On appeal we reversed and directed the trial court to consider the petition after allowing verification. Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967). We have not heretofore been bothered by the name of the pleading but instead looked to substance rather than to form.

The majority opinion denies petitioners’ right to a parole hearing simply because it was called a petition for a writ of habeas corpus rather than a petition for declaratory judgment or for a writ of mandamus. I cannot be a part of such a waste of time and expense. Furthermore, I am of the opinion that a petition for a writ of habeas corpus is proper. It is the instrument by which relief is sought in federal courts upon the same factual situation.