author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    L.J. CAMPBELL v. George M. GEHEB et ux
    74-330
    523 S.W. 2d 185
    Opinion delivered June 2, 1975

      Dale 11’. Finin', for appellant.

      Cainrr. darner & (Hoar, for appellees.
   Frank Holt, Justice.

Appellant brought this action to set aside a quitclaim deed from appellee George M. Geheb to his appellee wife,_jCecil. Appellant alleged that the transaction was a fraudulent conveyance and was done for the purpose of delaying and hindering the appellant in the collection of a judgment against George. The chancellor held that the property is Cecil’s homestead and, therefore, is not subject to the claim of appellant as a judgment creditor. For reversal, appellant contends the chancellor erred in determining the homestead interest and refusing to set aside the conveyance. We cannot agree.

Appellant acknowledges that Cecil properly claims the property as her homestead. Appellant argues, however, that Cieorge has shown no homestead interest in the property. Cecil lives in Ft. Smith on the property in question and Cieorge lives in Newton County where she lives with him occasionally. Therefore, his quitclaim deed to Cecil should be set aside as a fraudulent conveyance and appellant should be permitted to execute upon and sell George’s interest subject to Cecil’s homestead rights.

Ark. Stat. Ann. § 30-210 (Repl. 1962) provides that when the husband neglects or refuses to claim his homestead rights, his wife may intervene and set it up. The stipulation, as abstracted by appellant, is as follows:

Prior to the taking of any testimony, counsel for the parties made statements and stipulations to the effect that the judgment in 1968 was admitted; that Cecil Geheb was the sole owner of the realty prior to her marriage; that a tenancy by the entirety was created by the use of a third party; that the judgment was not of record in Sebastian County until 1973; and that the realty was conveyed in 1971 by Mr. Geheb to Mrs. Geheb without monetary consideration.
In addition, the realty was the homestead of Cecil Geheb who obtained title from her father. All subsequent indebtedness had been paid by Mrs. Geheb. The reconveyance by Mr. Geheb was made three days after the last payment on the mortgage.

In construing the homestead exemption, we have recognized that a conveyance destroys the homestead claim. See Drennen v. Wheatley. 210 Ark. 222, 195 S.W.2d 43 (1946), where we quoted as follows:

The general rule is that, in the absence of specific constitutional or statutory authority therefor, there is no right on the part of a debtor to claim exempt funds arising from the voluntary sale of his homestead. ‘In the absence of statutory provisions to the contrary, the voluntary sale of homestead property is held in a majority of jurisdictions, to be a complete extinguishment of the homestead right; and consequently the proceeds of such sale, until invested in other exempt property, may be subjected to the claims of creditors.’

See also Obenshain v. Obenshain, 252 Ark. 701, 480 S.W.2d 567 (1972). Thus from the foregoing discussion, it would appear that any homestead right that Cecil Geheb may have had at the time of the conveyance to her husband was relinquished by that conveyance.

Furthermore, a wife can only claim one homestead under Ark. Const. Art. 9, §3. This was recognized in Grimes v. Luster, 73 Ark. 266, 84 S.W. 223 (1904). In that case Hugh Grimes died leaving a widow. He had a homestead at Newport. The widow moved to Batesville, married and acquired a homestead with her second husband. She died leaving four children all of whom were adults except Harry Grimes. The three older children conveyed their interest in the Batesville property to Mark Luster. Harry brought the action to recover the rents and profits on the theory that he as a minor was entitled to claim a homestead right in the Batesville property. In holding that a minor could not acquire two homestead rights, we there stated:

The beneficence of these provisions extend in favor of the children to the homestead of either parent. So long as the family circle is not broken by the death of either parent, there can be but one homestead; and it matters not whether that is the homestead of the father or mother. Thompson v. King, 54 Ark. 9; Wilmoth v. Gowett, 71 Ark. 594. And, as heretofore shown, successive homestead fights may be inherited by minors in cases like this one at bar where the widow acquires a homestead during her widowhood in her own right, but both cannot be enjoyed at one and the same time. Such an enjoyment would present an anomaly, and one not to be tolerated because contrary to the spirit and letter of the homestead exemption. . . .

In Hollis v. State, 59 Ark. 211, 27 S.W. 73 (1894), in discussing the nature of the homestead right, we said:

In the case of Harbison v. Vaughan, 42 Ark. 539, this court said that the protection of the family from dependence and want is the object of all homestead laws; that apart from his family, the debtor is entitled to no special consideration. As the protection of the family is the object of the homestead law, so it has been held that desertion of the family by the husband, still leaving the family occupying the homestead, is not an abandonment of the homestead.

In Rosenberg v. Jett, 72 F. 90 (1894) Williams, District Judge, commented on the matter as follows:

I am clearly of the opinion that during coverture, and while the husband and wife are not separated, but are living together as husband and wife, there can be no such thing as a separate homestead of the wife, separate and apart from her husband, that the domicile of the husband is the domicile of the wife, and, wherever he may erect a homestead, it is, in the contemplation of the law, the homestead of the husband and wife. . . .

See also Bruce v. Bruce, 176 Ark. 442, 3 S.W.2d 6 (1928).

We are firmly convinced that when Cecil Geheb conveyed to a third party for the purpose of creating an estate of the entirety, she also conveyed any rights of homestead that she may have had prior thereto. Furthermore, any rights of homestead that she could claim thereafter would have to arise out of the marriage relationship to George Geheb. It necessarily follows that when appellant stipulated that Cecil Geheb had a homestead in the property, they necessarily stipulated that that homestead was one acquired during the marriage which would exempt the property from sale under the homestead laws from the creditors of either the husband or the wife. In view of Ark. Stat. Ann. § 30-210, <¡u/>ra, it matters not that George Geheb did not claim the homestead exemption.

Affirmed.

Fugleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I disagree with the holding in this case, because I think it is based upon at least two erroneous premises. In the first place there is no evidence or contention that George Geheb ever had a homestead right in the property. Secondly, there is no indication that Cecil Geheb has ever asserted any homestead right on behalf of George Geheb.

The answer filed by Cecil and George Geheb was a general denial and made no mention of anyone’s homestead. The first mention of homestead was in a stipulation made at the trial prior to the taking of any testimony. The stipulation was that the realty was the homestead of Cecil Geheb. She testified that at the time pertinent to this case she lived in Ft. Smith and George Geheb lived in Newton county. She lives with her husband in Newton county on weekends when she gets a chance. The property was owned by Cecil Geheb prior to her marriage to George Geheb. She has lived on it since she and her daddy bought it. She moved on this property about 22 years ago and her daddy and mother moved in with her. She intends to claim the property as her homestead. Her mother, her brother and her brother’s wife live there, too. She stays there part of the time and part of the time in Newton county. The chancellor found that she had always claimed the property as her homestead and that it was still the homestead of Cecil Geheb. He did not find nor was there any evidence to indicate that the property was or had been the homestead of George Geheb.

I do not agree that, under these circumstances, the wife can claim the homestead of the husband for the benefit of the husband when he fails to do so, even though she can do so for her own benefit and that of the family. He was and is a party and until this date, he has not asserted a claim that this property constitutes his homestead. All Cecil Geheb could do, assuming that the property constituted the homestead of George, is to claim the homestead for the benefit of herself and his family.

In Hollis v. State, 59 Ark. 211, 27 S.W. 73, we determined that when the husband abandoned the wife and children, the wife could claim the exemption of the homestead which they continued to occupy, saying that the wife could do this when the husband neglects or refuses to do so (because the object of the homestead exemption was to protect the debtor’s family from dependence and want) but not for his own benefit apart from that of his family, citing Harbison v. Vaughan, 42 Ark. 539. But here, there is no evidence that George Geheb has done either. The mere fact that he has not claimed a homestead he never had is not evidence of either neglect or refusal.

It is quite clear that a woman, whether married or not, who is the head of a family may be entitled to a separate homestead in her own right. Monroe v. Monroe, 250 Ark. 434, 465 S.W. 2d 347. Thompson v. King, 54 Ark. 9, 14 S.W. 925. The land of a wife occupied as a home by her husband and family is her homestead, but upon her death, leaving minor children, they are entitled solely to the homestead right, to the exclusion of the husband. Thompson v. King, supra. No provision is made under our law for homestead rights of a surviving husband in his wife’s property, because the wife cannot well leave a widow. Thompson v. King, supra. See also, Grimes v. Luster, 73 Ark. 266, 84 S.W. 223. It is true that in White Sewing Machine Co. v. Wooster, 66 Ark. 382, 50 S.W. 1000, we clearly recognized that a husband, who is head of a family can, if he has no other homestead, establish a homestead on his wife’s property and claim his own right of homestead, thus established, to exempt the property from execution. The facts here are different and more nearly similar to those in Thompson v. King, supra. The distinguishing features here are the failure of George Geheb to claim or occupy the property as his homestead, and the absence of evidence that he had no other homestead.

There must have been actual occupancy of the land as a residence by George Geheb in good faith, before it could be his homestead. Hinton v. Willard, 215 Ark. 204, 220 S.W. 2d 423; Tillar v. Bass, 57 Ark. 179, 21 S.W. 34; Bank of Quitman v. Mahar, 193 Ark. 1111, 104 S.W. 2d 800. Chastain v. Arkansas Bank & Trust Co., 157 Ark. 423, 249 S.W. 1. There must be a “good faith” intention to impress the property occupied with the homestead character. See Kulbreth v. Drew County Timber Co., 125 Ark. 291, 188 S.W. 810; Gibbs v. Adams, 76 Ark. 575, 89 S.W. 1008. The burden was upon the claimant to show the homestead right. Gibbs v. Adams, supra; Bank of Quitman v. Mahar, supra. Neither George nor Cecil Geheb met the burden of proving that the land was the homestead of George Geheb, or attempted to do so. As a matter of fact there is not one word of evidence to indicate that he occupied the land, or had any intention to impress it with a homestead character. To constitute a place a homestead, it must be a place of actual residence. Tillar v. Bass, supra. Neither the intention of the owner of land to occupy it as a homestead nor occasional occupancy is sufficient to impress it with the character of a homestead, if his actual home residence is elsewhere. Bank of Quitman v. Mahar, supra. An intention to occupy the land as a homestead in the future is not sufficient. Chastain v. Arkansas Bank & Trust Co., supra. The burden of proving the required occupancy, or any other fact essential to the homestead exemption, is on the homestead claimant. Chastain v. Arkansas Bank & Trust Co., supra.

We are not favored with the facts which caused the property to be Cecil Geheb’s homestead. It was admitted that Geheb had no assets, other than the tenancy by the entirety, with which to pay the judgment. There was evidence that Cecil Geheb, without help from George, paid off a debt secured by mortgage on the property. Cecil Geheb testified that she did not live in Newton County and only went there a day or two at a time. She wanted her place for her mother and a brother. She stays there with them at least five days a week. She could well have been the “head of the family” and entitled to assert her homestead in her own right. The burden was upon George Geheb to show that he was entitled to a homestead in his wife’s property. He didn’t.

I submit that the federal trial court decision in Rosenberg v. Jett, 72 F. 90 (1894) does not overrule our own cases. It should be ignored because it did no more than express a fleeting opinion. The portion quoted in the majority opinion is followed by these words:

. . .But it is unnecessary in this case to even pass upon that proposition or contention.

It is not supported by Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6, where the question was whether a wife had abandoned her right to claim homestead rights in her husband’s property upon his death. We emphasized that the right she claimed was a widow's homestead, not a wife's. We also distinguished a previous decision by pointing out that Mrs. Bruce, at the time of her husband’s death, owned and occupied another homestead. The only limitation involved is that one cannot enjoy two homesteads simultaneously. But Mr. Geheb is alive, and if he has a homestead, Mrs. Geheb is not enjoying it.

I further submit that none of the cases cited by the majority support the conclusion that a husband or wife, by creating a tenancy by the entirety abandons or waives any preexisting homestead right, as would be the case when the homestead is sold.

The decree should be reversed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Robert L. FLIPPO Jr. and Robert M. FLIPPO v. STATE of Arkansas
    CR 75-7
    523 S.W. 2d 390
    Opinion delivered June 2, 1975

      Jack /.. I.essenherry, for appellants.

      Jim Cuy Tucker, Atty. Gen., by: Cary lshell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellants guilty of involuntary manslaughter. Ark. Stat. Ann. § 41-2209 (Repl. 1964). The punishment of each was assessed at a one year suspended sentence in the State Department of Correction and fines of $100. The sole issue upon appeal is the sufficiency of the evidence to sustain the verdicts. Appellants recognize that in determining the sufficiency of the evidence, upon appellate review, it is only necessary to ascertain that evidence which is most favorable to the appellee and if any substantial evidence exists, then we must affirm. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

The appellants, Robert L. Flippo, Jr., and Robert M. Flippo, are respectively father and son. Late in the afternoon of the tragic occurrence, the father drove his son, Bobby, and the son’s teenage friend, Terry Dunlap, to a clover field several miles from their home for the purpose of discovering deer tracks in preparation for the forthcoming hunting season. Among other weapons, Bobby, a college student, took a new 30.06 rifle with him. Mr. Flippo stopped the truck in the field and the two youths got out. Bobby took his rifle with him thinking he might see a deer. After walking about 150 yards, Bobby raised the rifle, which was equipped with a telescopic sight, and fired once thinking he saw a deer. The weather conditions impaired visibility since it was overcast and approaching nightfall.

About a minute later, Bobby returned to the truck and expressed his belief that he had killed a deer which he heard “bay.” Terry, however, said he heard three small caliber rifle shots, which were later determined to be distress signals. After approximately ten minutes, Bobby convinced his father to return to the scene and search for the deer. Bobby and Terry found Roy Ralph Sharp approximately 140 yards from where Bobby fired his rifle in the direction of the victim. There was evidence that the victim was partially obscured by a tree with low branches from which the bullet ricocheted. The victim was conscious and asking for help. He was a “big man,” weighing 225 pounds, and he left leg was “almost off at the hip.” He had “drug” himself approximately twenty paces out of the woods. Bobby administered no first aid although there was evidence that he had won a “National 4-H Safetyman” award based upon his knowledge of “all aspects of safety.” He and Terry ran to a nearby residence, which happened to be the residence of the victim’s 72 year old father. There they told Mr. Sharp that they had found a person who was wounded. The boys returned to the Flippo truck where they told Mr. Flippo about the accident. Bobby then told his father than Mr. Sharp was going to follow them back to the scene of the accident. When they arrived near the scene, Mr. Flippo and Bobby told Mr. Sharp that they were going to call an ambulance. Bobby gave Mr. Sharp directions as to the location of the victim. There was no offer of assistance to Mr. Sharp in removing the victim in one of the trucks for medical aid. After they had left, Mr. Sharp found the victim and then learned that he was his son. He asked his father to get assistance. Mr. Sharp told him “|S]on, some folks have gone to call an ambulance. You lay right still and it will be here in just a few minutes.”

The Flippos left and drove to the Flippo home which was twelve or fourteen miles away. Mr. Flippo, who was told by Terry that the victim’s leg was nearly severed, drove past numerous houses, some of which had telephones, and a cafe, which was only 2.3 miles from the wounded man. The cafe was open and an outside public telephone was plainly visible. Mr. Flippo stopped once at a residence to use a phone at Bobby’s suggestion and when the motor almost stopped, they continued on to the Flippo residence where they were certain there would not be a party line. “[T]here was conversation about removing the rifle from the truck so nobody would know we had the rifle and was hunting out of season. ” At Mr. Flippo’s direction, after reaching the, residence, Bobby and Terry switched the high powered rifle and another rifle from the truck to a “shack” for a shotgun, which was placed on the gun rack in the truck. Then, Mr. Flippo called an ambulance which met him approximately 25 minutes later at the cafe, which he had passed en route to his residence. While Mr. Flippo waited at the restaurant for the ambulance, Terry and Bobby returned in the Flippo truck to the scene where they assisted Mr. Sharp in placing his son in the Sharp truck. A short distance down the road, they met the ambulance to which the victim was transferred, it appears Roy Sharp died either shortly before or after he was placed in the ambulance.

After giving up on the Flippos, Mr. Sharp left his son in the field and found someone at a nearby residence, who then had a neighbor call an ambulance. Mr. Sharp was only away from his son about four minutes. He further testified that from the time he found his son and Bobby and Terry returned, it was about forty minutes to an hour and fifteen minutes.

A pathologist testified that the victim bled to death, and it is possible that the victim “could have been saved” if he had been hospitalized while still conscious. He testified there were other things that could have possibly saved his life: i.e., “the quicker you get a person in the better their chances of living;” “if a shirt or anything had been put around the body, the thigh, above that point that would have stopped the bleeding.” It was his opinion “[T]hat had proper treatment been initiated immediately at the site, he could have been saved.”

Ark. Stat. Ann. § 41-2209 (Repl. 1964), which defines involuntary manslaughter, reads:

If the killing be in the commission of an unlawful act, without malice,, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.

In State v. Green, 38 Wn. 2d 240, 229 P. 2d 318 (1951), the court affirmed a manslaughter conviction where a hunter fired at what he thought was a bear. There the shooter was not sure of his target. The court held that the prosecution made a prima facie case of criminal responsibility from which the jury could find the appellant guilty. See also Johnson v. Commonwealth, 308 Ky. 709, 215 S.W. 2d 838 (1948). In the case at bar, there is substantial evidence, when viewed most favorably to the appellee, from which the jury could find that Bobby, who was hunting out of season; was criminally negligent by acting without due caution and circumspection when he fired at an object he mistakely believed to be a deer and then failed, as charged, to discharge his duty, as hereinafter discussed, to render aid.

A mor$ difficult question is presented with respect to Mr. Flippo. He, as a parent, cannot be deemed an accessory after the fact in the circumstances here. Ark. Stat. Ann. § 41-121 (Repl. 1964). The cases cited by appellee that appellant was an active participant in the tragic shooting are distinguishable. Those cases involve the owner of a car or truck who allows another to knowingly drive in a culpably negligent manner under the owner’s direction and control. In this case, Bobby, a college student who is knowledgeable in gun safety, cannot be said to have been within his father’s control. Neither did Mr. Flippo acquiesce in the culpable manner in which Bobby fired. Bobby was out of and away from the truck.

However, the state alleged and presented evidence to the jury that Mr. Flippo and his son had a duty to render aid to the wounded man, upon disovering him, and failed to do so causing death. “For criminal liability to be based upon a failure to act it must be found that there was a duty to act - a legal duty and not simply a moral duty.” Lefave & Scott, Criminal Law 183 (1972). If the omission to act was intentional, but without the intention or expectation of fatality, the crime would be involuntary manslaughter because of criminal negligence. Perkins on Criminal Law 603 (2d Ed. 1969). In Janes v. United States, 308 F. 2d 307 (1962), the court said:

There are at least four situations in which the failure to act may constitute breach of legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the hel/dess person as to prevent others from rendering aid. (Emphasis added.)

See also 40 Am. Jur. 2d, Homicide § 90, and King v. Commonwealth, 285 Ky. 654, 148 S.W. 2d 1044 (1941). The case at bar presents a classic fact situation as to the latter situation in Jones v. K.S.. supra. Mr. Flippo assured the victim’s elderly father that he would call for an ambulance. The father kept vigil and delayed seeking assistance in the belief assistance would be procured promptly by appellants. In the meantime the victim, known by the appellants to be seriously wounded, was bleeding to death, asking his father not to leave him after being assured assistance was forthcoming. During this time, Mr. Flippo drove twelve to fourteen miles to reach his residence although phones were in the vicinity of the shooting. A public phone, which the appellants passed, was 2.3 miles from the scene of the tragedy. Mr. Flippo was told, that the victim’s leg was “nearly blown off.” Upon reaching his home he instructed the youths to place the rifles in a “shack” and substitute a shotgun and then used his phone to call an ambulance. According to Mr. Sharp, after waiting in vain for prompt assistance, within four minutes he was able to have someone at a nearby residence summon aid. There was medical evidence that if help had arrived sooner or if aid had been administered at the site by appellants, it was probable that the victim would have survived. The jury could infer that Mr. Flippo’s delay caused the helpless victim to be secluded in the field awaiting the promised aid and prevented or hindered others from rending timely aid. When we view the evidence most favorable to the appellee, as we must do on appeal, there is substantial evidence from which a jury could find appellants criminally negligent.

Affirmed.

• Brown and Fooleman, JJ., dissent as to the affirmance w'ith respect to Robert L. Flippo, Jr.


author: Georue Rose Smith, Justice.

text:
    FIRST NATIONAL BANK in Little Rock et al v. NORTH LITTLE ROCK FUNERAL HOME, Inc.
    75-46
    523 S.W. 2d 918
    Opinion delivered June 9, 1975

      Homer Tanner, for appellants.

      Allan It'. Horne, for appellee.
   Georue Rose Smith, Justice.

This dispute arises from a written lease which contained two different options entitling the lessee to purchase the leased premises from the lessors. The lessee (the appellee) brought suit for specific performance, asserting its right to exercise the first option in the lease, under which the purchase price would be $75,000. The lessors contended that the lessee could exercise only the second option, under which the purchase price would be $125,-000. This appeal is from a decree upholding the tenant’s contention.

The facts are not in controversy. In 1954 Dr. and Mrs. Shelby Atkinson owned the property in question, consisting of three lots in downtown North Little Rock. The land, with its improvements, was then worth some $35,000. The parties executed a ten-year lease, expiring September 10, 1964, by which the owners leased the property to the appellee, a corporation, which agreed in the contract to remodel and improve the property and to use it as a funeral home. At the end of the initial term the lessee exercised an option by which the lease was extended for ten more years, expiring September 10, 1974.

Paragraph 13 of the lease contains the two options to purchase. That paragraph first grants to the lessee an option to purchase the property for $75,000. The option is not to be effective until twenty years from the commencement of the lease “and may be exercised by the Lessee giving notice of its intention to purchase, in writing, at least ninety (90) days prior to the expiration of this lease agreement.” Paragraph 13 then provides that in the event the lessors desire to sell the property at any time during the existence of the lease or any extension thereof, the lessee shall be given preference and have the option to purchase the property at a price equal to the highest bona fide offer obtained by the lessors.

Dr. Atkinson died in 1954. The appellants, his widow and a bank, are the trustees under his will. In the summer of 1973, when the lease had more than a year to run, the tenant decided to spend some $33,000 upon an addition to its funeral home. The lease required that such an addition be approved by the lessors. On July 19, 1973, the tenant wrote to the bank, asking for that approval and going on to say: “I would also like for you to review our lease and tell me if we may advise the estate of Dr. Atkinson at this time that we intend to purchase the property, or must we wait until 90 days before the expiration-date of the lease?” 7'he bank approved the addition. Its letter added that the bank was reviewing the lease and would advise the lessee about the option to purchase, but no such advice was ever given.

In January of 1974 the bank listed the property for sale with a real estate agency, but the lessee was not informed of that action. On February 18 the lessee sent the bank positive written notice that the lessee was exercising its option to buy the property for $75,000. On March 4 the bank wrote to the lessee, acknowledging “that you have exercised your option to purchase said property.” The bank added, however, that it had elected to sell the property under the second option, that it had listed the property with a realtor, and that when a bona fide offer is obtained “you shall be notified and given an opportunity to purchase the property at that price.”

On March 21 the lessee filed this suit for specific performance of its contract to buy the property for $75,000. On September 6, four days before the expiration of the lease, the lessors filed a pleading stating that they had obtained an offer of $125,000 for the property and asking, in substance, that the lessee either meet that offer or relinquish its claim. The chancellor, as we have said, sustained the appellee’s right to purchase the property for $75,000.

The chancellor was right. In both logic and justice the appellee’s position is demonstrably superior to that of the appellants. More than a year before the expiration of the lease the appellee announced its intention to buy the property and, with the lessors’ approval, spent $33,000 in improving it. In due time the appellee gave the required written notice of its decision to purchase the property, thereby converting its option into a binding executory contract. See Trieschmann v. Blytheville Steam Laundry, 148 Ark. 237, 230 S.W. 3 (1921); Butler v. Richardson, 74 R. I. 344, 60 A. 2d 718 (1948); Sinclair Ref. Co. v. Allbritton, 147 Tex. 468, 218 S.W. 2d 185, 8 A.L.R. 2d 595 (1949). Thus the appellee unequivocally bound itself to buy the property at the agreed price of $75,000.

By contrast, the lessors committed themselves to nothing. Their action in listing the property for sale was purely unilateral and subject to cancellation at any time. In the circumstances the lessee’s irrevocable exercise of the first option to purchase necessarily had the effect of terminating any right that the lessors might otherwise have had to assert a cause of action under the alternative clause in Paragraph 13 of the lease.

Affirmed.

Fogleman, J., not participating.


author: Lyle Brown, Justice.

text:
    Dale John Wayne LEWIS v. STATE of Arkansas
    CR 75-31
    523 S.W. 2d 920
    Opinion delivered June 9, 1975

      Gene Mattheivs Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This appeal comes from a conviction of Dale John Wayne Lewis on a charge of grand theft of an automobile. Appellant advances six points for reversal which will be listed separately and discussed after a brief statement of the undisputed facts.

On or about April 24, 1974, appellant was found in possession of an automobile which had been stolen during the weekend of April 20, 1974, from a car lot in Hot Springs. The car had a license plate attached which had been stolen from an automobile in Malvern. Appellant was mowing the lawn at a church in Bastrop, Louisiana and had parked the car. A Bastrop officer, who was investigating a series of burglaries at the church, noticed the car with an Arkansas license. He inquired of appellant as to ownership of the car and appellant’s reply was that the car belonged to him. It was the contention of appellant that he bought the car from a person unknown to him in Pine Bluff, drove it to Florida, and on his return trip he ran out of money; that was the reason, so he said, for mowing the lawn. The officer put out a bulletin on the car and discovered that it had been stolen and that the license plate belonged to a resident of Malvern. Appellant waived extradition and was returned to Hot Springs to face grand larceny charges. Other facts will be recited which are pertinent to the treatment of appellant’s points for reversal.

Point I. The court erred in overruling defendant's motion for remand for a preliminary hearing as the prosecutor's right to file an information under Amendment 21 of the Constitution without judicial review is unconstitutional. The defendant was arrested on April 26, 1974, and brought before the municipal court of Hot Springs on April 30, 1974. Subsequently, and on May 6, 1974, the prosecuting attorney bypassed the municipal court and filed an information direct in circuit court. This procedure is permissible and is sanctioned by the recent case of McArthur v. Pulaski County Circuit Court, 253 Ark. 501, 488 S.W. 2d 5 (1972).

Point II. The court erred in failing to grant defendant's motion to suppress evidence. It is here contended that the search of the car made by officers on the day of appellant’s arrest constituted an invasion of the defendant’s privacy. The searching officers did not obtain a search warrant. The point is without merit. The police found the stolen car in possession of appellant and at the church which had been on recent numerous occasions burglarized. The officers seized the car to impound it and to keep it until forfeiture proceedings were concluded. Their search of the car was “closely related to the reason petitioner was arrested, the reason his car had been impounded and the reason it was being retained”. Cooper v. California, 386 U.S. 58 (1967). Furthermore, the search was limited to an inventory. Moreover, nothing was taken which implicated appellant in the theft of the car.

Point III. The court erred in overruling the defendant's motion in limine to preclude the prosecuting attorney from making reference to a nolo contendere plea entered by defendant and further permitting the State to inquire into specific acts oj conduct in an effort to prove the had character of the defendant. It appears that sometime prior to the involved incident the appellant was charged in the municipal court with joy-riding. He entered a plea of nolo contendere and the court entered a judgment of conviction. It is appellant’s position that the nolo contendere proceedings should not have been admitted in evidence. We disagree. The majority rule is that a conviction on a plea of nolo contendere may be inquired of in cross-examining a defendant in a subsequent trial. While a conviction of the defendant upon the plea of nolo contendere “is not an admission of his guilt, so that the defendant is not estopped in a civil proceeding from denying the facts to which he pleaded nolo contendere, the fact of his conviction upon the plea may be shown in a later proceeding, and such a conviction subjects the defendant to all the consequences of a conviction in the same way as if it were after a plea of guilty or not guilty”.

The foregoing quotation is taken from 89 ALR 2d § 42. To the same effect see 21 Am Jur 2d § 502, P. 493. Also in accord is the case of Tseung Chu v. Cornell, 247 F. 2d 929 (1957). Cert. denied 355 U.S. 892.

Under this point appellant also contends it was error to cross-examine appellant about debts, an alleged DWI in the past two years, and alleged non-child support. Appellant put his reputation in issue and the questions on the related point were appropriate in considering his general reputation.

Point IV. The court erred in failing to admit into evidence a conditional fiafer for sale of the automobile. It was appellant’s contention that he purchased the automobile from a stranger at Pine Bluff. Appellant purportedly received a receipt from the seller which read: “4-22-74. Conditional paper on 1973 Buick $3,-000, $500 down papers due one month but at $100 a month for 30 months. Geo. Brandis.” A subpoena was issued for Geo. Brandis and returned by the sheriff at Pine Bluff with the notation “unable to locate”. The recited instrument was essentially a receipt given incident to a transaction as opposed to an instrument attempting to recount a statement of facts by the maker. Under the circumstances we have recited the instrument was admissible. The case of Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338, 96 S.W. 413 (1906) is a case in point. We there held that the receipt given by a third person, acknowledging payment of money, was admissible if the receiptor was unavailable to testify. Cases from other jurisdictions hold that a receipt incident to a transaction is admissible, Zerbinos v. Lewis, 394 P. 2d 886 (Alaska 1964); American Medical & Dental Ass'n. v. Browen, 344 P. 2d 189 (Col. 1959).

For error in refusing to admit the receipt in evidence the case must be reversed.

Point V. The trial court erred in giving an instruction on the presumption of possession of recently stolen property. Appellant does not attack the phraseology of the instruction and in fact it is recognized as a stock instruction on that theory of the law. Appellant simply says that it is unfair and forces the appellant to testify. We hold the instruction to be a correct statement of the law.

Point VI. The trial court erred in instructing the jury on circumstantial evidence. We reject the argument. The instruction given virtually duplicates an instruction in the recent case of Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373 (1970). It is not contended that the instruction is an incorrect statement of the law, being many times approved in previous decisions of this court. We might add appellant failed to timely raise an objection to the instruction and actually inserted the objection after the jury had deliberated for some time.

We have treated all the points raised on appeal because they are likely to arise on retrial.

Reversed and remanded.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    Joe BALDRIDGE et ux v. CITY of NORTH LITTLE ROCK et al
    75-41
    523 S.W. 2d 912
    Opinion delivered June 9, 1975

      Bob Dawson, for appellants.

      Stuart IV. Hankins, for appellees.
   J. Fred Jones, Justice.

The appellants, Joe Baldridge and his wife, own two lots with a residential building thereon at the corner of Cypress and D Streets on Park Hill in North Little Rock. Cypress Street is one block west of John F. Kennedy Boulevard, which is a divided four-lane thoroughfare, hereafter referred to as JFK. D Street crosses JFK and is one of the two streets carrying traffic from Park Hill west down Park Hill to Levy. The property for one-half block or 150 feet on each side of JFK is zoned C-3 or heavy commercial. All property west of Cypress, and that portion east of Cypress for a distance of one-half block or 150 feet, is zoned R-2 or residential.

Mr. and Mrs. Baldridge petitioned the North Little Rock Planning Commission to have their property rezoned from R-2 to C-l or light commercial. The petition was denied by the planning commission and also by the city council. The chancery court, on appeal, held that the action of the city council in denying the petition was not arbitrary and capricious and the petition was also denied by the chancellor. On appeal to this court Mr. and Mrs. Baldridge designate the points on which they rely for reversal as follows:

“Arkansas case law supports the contention of the appellants.
The trial court’s finding that the planning commission’s and board of adjustment’s refusal to rezone was not arbitrary is against the preponderance of the evidence.
Rezoning of appellants’ property from R-2 to C-l constitutes the highest and best use of the property.”

The Baldridges produced witnesses who testified that the highest and best use of their property would be for light commercial and as a buffer between the business property fronting on JFK and the residential property west of Cypress Street. The respondent-appellees produced witnesses who testified that the present zoning classification of the area involved was the result of long and deliberate study; that the streets west of JFK are not located or designed to accommodate a business area and that the area is entirely residential, which is its highest and best use. As in the usual situation in zoning cases, some neighboring property owners objected to the re-classification, while others said they had no objection.

All three of the appellants’ points really depend on their argument that the “Pfeifer Rule” announced in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1935), requires a reversal of the chancellor’s decree as a matter of law. The appellants point out that in Pfeifer we said: “any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the right of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” The appellants apparently interpret this quote as a rule of law to be rigidly and literally applied to all residential property in all residential zones where the residential property involved abuts upon or is adjacent to, property in a business district or zone which has been rightly established. The appellants have quoted correctly from our opinion in Pfeifer, but the above quoted language is not the unwieldy, rigid rule of law to be applied in all cases as the appellants appear to argue.

The primary question involved in Pfeifer was whether the property involved was actually a part of a residential district or had become a part of an expanding business district laid out by an ordinance passed under authority of Act No. 6 of the Third Extra Session of the 44th General Assembly in 1924. This Act only contained five short paragraphs reading as follows:

“Section 1. It is recognized and hereby declared that the beauty of surroundings constitutes a valuable property right which should be protected by law, and that this is particularly true of residential sections where people have established their homes.
Section 2. Cities of the first class are hereby authorized to establish zones limiting the character of buildings that may be erected therein, and that such zones may be of three classes; first, portions of the city where manufacturing establishments may be erected or conducted; second, portions of the city where business other than manufacturing may be carried on; third, portions of the city set apart for residences.
Section 3. When the city council shall have laid off such zones it shall not be lawful for anyone to construct or carry on within a given zone any business not authorized by the ordinance of such city establishing the same, unless with special permission granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance; and such exceptions shall be made only for good cause, and in case of abuse the adjacent property owners shall have the right to appeal to the courts of chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.
Section 4. The city council of such city shall have power to pass ordinances limiting the height of buildings in the zones created by it, so that the beauty of monumental buildings may not be impaired by the contrast.
Section 5. This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act shall take effect and be in force from and after its passage.”

The language we used in Pfeifer applied to the facts of that case under the statutory law then applicable. In the continued application of the “Pfeifer Rule” the evidentiary facts in Pfeifer should not be overlooked or ignored. The so-called “Pfeifer Rule” as above set out did not spring full grown as a separate and distinct rule of law in the Pfeifer decision. It drew its substance from the facts in that case and should only be applied as a rule of law in, and to, similar factual situations. For the context in which the “Pfeifer Rule” came into being, we quote a more complete statement from Pfeifer as follows:

“Giving due effect to the statements and opinions of all the witnesses, we are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established, and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”

In reaching the conclusion that the property involved in Pfeifer was in an established expanding business district, we pointed out very pertinent evidence as follows:

“The building to be constructed ... is situated near the center of the block, fronting north on Prospect Avenue, between Palm and Beech Streets. There is an alley running north and south through the center of the block, and this building adjoins the alley on the west side. There is a residence west of the building on the northwest corner of the block, and the wall of the building is within about eight or ten feet of the residence. The rear end of this building will come within about fifteen feet of a residence fronting on Palm Street. Across the alley from the building of appellees there is a residence building, and a brick store building is on the corner of Prospect and Beech Streets. The whole of the block on the east, fronting north on Prospect, is built up with two-story business buildings, and on the north side of Prospect the corresponding block is thus built up, and also the east half of the block on the north side of Prospect, in front of the block where appellees’ building is situated, is covered with business structures. The other half of the block is occupied by two residences.”

Aside from the changes in the law since 1925, we had a quite different factual situation in Pfeifer than we have in the case at bar. In Pfeifer the property was similarly situated to what would have been the situation concerning the appellants’ property in the case at bar, if the appellants’ property had fronted on JFK. In Pfeifer a proposed business building, to front on Prospect Avenue, was involved and there were only two other residential buildings in the same block fronting on Prospect. One of the residences was on the corner west of the property involved and the other residence was east of it across the alley running north and south through the center of the block. A business building had already been built on the northeast corner of the block and the next block east was solid business property.

In the case at bar all of the property fronting east on JFK is zoned for business and all the property on the west side of the blocks and fronting on Cypress is zoned residential. It is recognized by all parties concerned that if the appellants’ petition had been granted, their property would have constituted the first and only property zoned for business west of the half blocks fronting on JFK. There was evidence that two blocks north of the appellants’ property a parking lot for a business fronting on JFK extended back to Cypress Street, but this property was not zoned for a parking lot or other business. We are, therefore, of the opinion that residentially zoned property which happens to be adjacent to business zoned property is not automatically entitled to rezoning as business property as a matter of law under Pfeifer. To hold otherwise would be illogical and could easily defeat the entire purpose of municipal zoning, in that a string of business establishments could be driven through any residential neighborhood by the simple process of touching each other. Such is not the intent of the zoning laws and such is not the intent of the so-called “Pfeifer Rule.”

Since our decision in Pfeifer we have attempted to point out in other cases that the “Pfeifer Rule” does not apply with equal force and rigidity to each and every case regardless of the location of the property or the direction of business expansion. In the case of City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921 (1966), the petitioner sought a rezoning of property from an A-l family residential classification to an F-commercial classification. The city council denied the petition and the chancellor found the council’s action arbitrary under the “Pfeifer Rule.” In reversing the chancellor’s decree this court referred to the drastic changes in the purpose and wording of zoning laws since Pfeifer, specifically referring to Act 186 of the Acts of the General Assembly of 1957, Ark. Stat. Ann. § 19-2825 (Supp. 1965), and in so doing we said:

“It is apparent that the passage of Act 186 of 1957, to some degree, necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and, more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be distrubed if it is shown that they acted arbitrarily. Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864.”

The so-called “Pfeifer Rule” was applied in the case of City of West Helena v. Davidson, 250 Ark. 257, 464 S.W. 2d 581 (1971), but in that case the facts were similar to those in Pfeifer. In the Davidson case, referring to the language in Pfeifer, we said:

“We think this language is applicable to the case at bar in view of the fact that appellees’ property is practically surrounded by established commercial activities which border on both sides of a major highway having a traffic count of approximately 15,000 vehicles per day.”

In Metropolitan Trust Co. v. NLR, 252 Ark. 1140, 482 S.W. 2d 613 (1972), both the city council and the chancery court refused to rezone family residential property (R-l) to a commercial zoning classification (C-3), and in reversing the chancellor’s decree, we again applied the “Pfeifer Rule,” but in doing so we said:

“The subject property, the southwest quadrant of this intersection, is the only quadrant zoned residential. The other three quadrants are zoned commercial. The northwest quadrant, which is directly across McCain Boulevard from appellant’s property, is the present construction site of the largest regional shopping center in the state. This mall contains more than 50 acres and is designed to serve a trading area of approximately 75 miles. The commercially zoned quadrant abuts a multifamily residential area. The commercially zoned northeast quadrant abuts a light industrial area separated only by the city limit boundary. The southeast quadrant, zoned for commercial use, abuts farm land outside the city limits. The subject property was incorporated into the city a few years ago and became classified as residential (R-l). Before the incorporation, its use was unrestricted. From May, 1967, until the end of 1968, the property was the site of a commercial sales business. It has never been used for residential purposes and is now vacant. . . .
* # *
In the case at bar, we need not reiterate the evidence which we have detailed to the effect that appellant’s property is in the midst of an established commercial district and borders upon two intersecting 4-lane thoroughfares with a heavy traffic count. Further, this diamond shaped intersection was designed and constructed to accommodate heavy traffic. Also, it appears undisputed that the present classification for residential purposes is not suitable for this 22-acre tract. Neither does it appear from a preponderance of the evidence that the proposed rezoning would be detrimental to adjacent property owners.”

The appellants rely upon Davidson and Metropolitan Trust Co., supra, in support of their argument that the “Pfeifer Rule” should be rigidly applied to the case at bar. We conclude that the “Pfeifer Rule” like many other rules of law, especially in equity cases, should be applied only in conjunction with a thorough examination of the facts in the particular case. In Davidson and Metropolitan Trust Co. the involved property was referred to as “almost surrounded” in one case and “in the midst of an established commercial district” in the other case. In the case at bar the appellants’ property is adjacent to an established business district with a high lattice metal fence separating it from the business property, and the appellants’ requested rezoning is the first attempt to invade for business purposes the residential zone area west of JFK.

As to appellants’ second point, the meaning of the word “arbitrary” in connection with zoning was recently defined in the case of W. C. McMinn Co. v. City of Little Rock, 257 Ark. 442, 516 S.W. 2d 584 (1974), wherein we said:

“This Court, while recognizing that the word ‘arbitrary’ has several definitions, has recognized the following as the most generally accepted usage: ‘Arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection of choice, rather than on reason or nature.’ City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921. Then we have held that ‘arbitrary’ also means decisive but unreasoned action and that ‘capricious’ means not guided by steady judgment or purpose. City of Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751.”

In the case of Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W. 2d 706 (1966), we said:

“In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962).”

We are unable to say that the chancellor’s decree in the case at bar was against the preponderance of the evidence.

The decree is affirmed.

Brown and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. The record shows that JFK Boulevard runs generally north and south. The first street west of JFK is Cypress. The appellants’ property is located at the corner of “D” and Cypress, adjacent to a service station and Church’s Fried Chicken. The next street to the north of “D” is “F” Street. Wash-Hale’s real estate business is located in a commercial building on the southwest corner of “F” Street and JFK. The land immediately west that borders on Cypress and “F” Street is a paved parking lot containing 43 parking spaces.

Charles Carpenter testified that Wash-Hale’s parking space was permitted because the zoning ordinance did not apply to parking lots. Reed McConnell testified that the zoning requested by appellant would increase the value of the residences in the area. The appellants offered to execute and place of record a bill of assurance limiting the use of their property to specific quiet businesses.

Since the proof shows that commercial businesses are maintaining parking lots in the same block, the traffic on the parking lot is greater than appellant’s use would generate, and the zoning would increase the value of the surrounding residential properties, then the legal issue should be: “What right does the City have to restrict this property to a residential use?”

This is not a case where the property owner seeks to extend a business district but one where the owner merely asks that his property adjacent to the heavy commercial use be used as a buffer type business zone.

The validity of zoning laws is ordinarily upheld under the police power on the theory that they protect property values, prevent fire hazards, and/or promote esthetics consideration. Since the proof is that the use here would generate less traffic than the Wash-Hale parking lot — a permitted use, would improve the value of the surrounding residential property and would not change the structure and thus not interfere with esthetic considerations, I can only conclude that the City is being arbitrary and capricious in continuing to restrict this property, adjacent to a service station and a fried chicken outlet, to a residential use.

For the reasons herein stated I respectfully dissent.

Brown, J., joins in this dissent.


author: J. Fred Jones, Justice.

text:
    W. E. McPHERSON Sr. v. Audra McPHERSON et al
    75-44
    523 S.W. 2d 623
    Opinion delivered June 9, 1975

      William M. Moorhead, for appellant.

      George E. Pike, for appellees.
   J. Fred Jones, Justice.

This is an appeal by W. E. McPherson, Sr., from a chancery court decree holding him liable to an accounting in the administration of an express trust in favor of his two daughters and one son, Audra McPherson Johnson, Kay McPherson Dolnik and W. E. McPherson, Jr. The daughters will hereafter be referred to by their given names Audra and Kay and the son as Billy.

On December 31, 1951, W. E. McPherson, Sr., and his wife Helen executed a declaration of trust between themselves as grantors and themselves as trustees in which they declared as follows:

“Whereas the Grantors desire to make some present provision for the economic security of their children by the establishment of separate estates for them, but due to the minority of said children it was considered advisable to place such estates in trust in order that it may be properly administered prior to the time said children reach the age of twenty-five years; and
Whereas, in fulfillment of such plan, Grantors by warranty deed dated December 29, 1951, and recorded in the office of the Recorder of Arkansas County, Arkansas, irrevocably conveyed to themselves as Trustees for their children approximately 1028 acres of land in Arkansas County, Arkansas, said land being more fully described below:
NOW, THEREFORE, the Trustees, Helen M. McPherson and W. E. McPherson, hereby declare that they hold in trust the following described property for the uses and purposes and subject to the terms and conditions hereinafter set forth, to-wit:
1. Beneficiaries of the Trust. This trust is for the equal use and benefit of Grantors’ children, AUDREY NELL McPHERSON, WILLIAM E. McPHERSON, JR. AND KAY FRANCES McPHERSON. Said children are the equitable owners of the trust corpus, naked legal title only being vested in the Trustees for the purposes of management.
2. Corpus of the Trust. The initial corpus of the trust is the following described lands located in the County of Arkansas, State of Arkansas, to-wit: [legal description]
The Grantors may from time to time convey to themselves, as Trustees, additional property to be added to the corpus of this trust for the same uses and subject to the same terms and conditions as herein set forth.
3. Distribution of Income. Out of the gross income of the trust, the Trustees shall first pay all necessary and reasonable costs incident to the proper protection, management, conservation and improvement of the trust estate. The remaining net income of the trust shall be paid not less frequently than annually to AUDREY NELL McPHERSON, WILLIAM E. McPHERSON, JR. and KAY FRANCES McPHERSON, share and share alike, if living, or to the children of any deceased child, per stirpes.
4. Distribution of Corpus. This trust shall terminate when the Grantors’ youngest living child reaches the age of twenty-five years. Should Kay Frances McPherson die before reaching the age of twenty-five years and the Grantors’ youngest living child be above the age of twenty-five years on the death of Kay Frances McPherson, the trust shall terminate upon the death of Kay Frances McPherson.
Upon the termination of the trust, the corpus of the trust shall be distributed to AUDREY NELL McPherson, william e. McPherson, jr. and KAY FRANCES McPHERSON in equal shares. Should any child be not then living but be then survived by a child or children, the share of such deceased child shall be distributed to the child or children of such deceased child. Should any child die before the termination of the trust, survived by no children, such child’s share of the corpus shall be distributed to the Grantors’ other children and the children of any other deceased child, per stirpes. Should all of said children die prior to the termination of the trust survived by no children, the trust corpus shall be distributed upon the death of the survivor of said children to the estate of said survivor.
5. Management of Trust Estate. The trustees are charged with the custody, management and protection of all properties and funds of the trust estate. The Trustees are authorized to sell or exchange and convey, at private sale, any real or personal property of the trust; to lease any trust assets, and to receive and receipt for rents, royalties, property or other interests received by the trust estate; to satisfy liens on real or personal property of the trust; to institute legal proceedings for the recovery or protection of assets of the trust; to make compromise settlements of any claims or demands of or against the trust estate; to borrow money and to execute a mortgage on trust assets to secure such a loan; to employ an agent or agents to manage, subject to the Trustee’s supervisory control, any part or all of the assets of the trust estate; and otherwise, to exercise all duties, rights and authority reasonably incident to the ownership of the trust assets and the discharge of their trust responsibilities.
All acts of the Trustees, however, with reference to the management, conservation, improvement or disposition of the trust corpus and income shall be solely in their capacity as fiduciaries of the trust and the holders of naked legal title to the trust assets. The Trustees shall never under any circumstances in their capacities as individuals borrow from the trust estate, purchase any of the trust assets except at the fair market value thereof, pledge any trust assets for their own benefit, use any of the trust assets to discharge any legal or moral obligation of their own, control of use [sic] the trust estate or the income therefrom in any manner for their personal benefit, or otherwise take any action which is not in the best interests of and for the sole benefit of the beneficiaries of the trust estate.
6. Successor and Co-Trustees. WILLIAM E. McPHERSON, JR. shall become a Co-Trustee of the trust when he reaches the age of twenty-one years. In the event of the death, incapacity, or resignation as Trustee of either W. E. McPherson or Helen M. McPherson, HUBERT C. McPHERSON shall serve as a Co-Trustee. Any successor Trustee shall be vested with the same duties and authorities as the original Trustees. No Trustee shall be required to give bond. Neither W. E. McPherson, Helen M. McPherson nor William E. McPherson, Jr. shall be paid any fee for their services as Trustee.”

When the trust indenture and deed were executed, the oldest child Audra was 15 years of age; Billy was 14 years of age and Kay was seven years of age.

After the indenture was executed, Mr. McPherson rented the farm to a tenant under a rental agreement by which the trust shared in some of the expenses and took a share of the harvested crops as rental. In 1959, some seven years after the trust was executed, Mrs. McPherson obtained a divorce from the appellant on the basis of three years separation. In the divorce case, and in connection with the property rights involved* Mrs. McPherson attempted to require the appellant to make an accounting as trustee of the .children’s trust and to make payment of income for past years under the provisions requiring an annual distribution of the income. The divorce case was appealed to this court, McPherson v. Smith, Judge, 231 Ark. 228, 328 S.W. 2d 849, and in that case we held that two separate causes of action were asserted, one against Mr. McPherson individually for divorce, and the other against him as trustee for an accounting in his representative capacity. We granted the requested writ of prohibition prohibiting the chancellor from proceeding in the petition against Mr. McPherson for an accounting in his capacity as trustee.

Under the trust indenture Billy was to become a co-trustee upon attaining the age of 21 years. He was released from military service in May, 1960, and in anticipation of his return from the service and taking over the entire operation and personally farming the trust lands as tenant while acting as trustee, the appellant performed some preparatory work in getting the land ready for planting the 1960 crop. Upon Billy’s return from the service in May, 1960, he was placed in possession of the lands and also the equipment the appellant had acquired for his use and was given complete control of the cash trust funds in the bank. Thereafter Billy acted as the sole active trustee and the appellant did nothing, nor did he attempt to do anything toward controlling the trust assets or any of its activities.

Upon termination of the trust when Kay became 25 years of age in 1969, the three children brought the present action against the appellant seeking an accounting and a judgment against him for the annual income from the trust during the period of his active administration. It was the appellant’s contention that during the negotiations between him and his former wife, pertaining to their property settlement, a family agreement was entered into by all parties concerned to the effect that if he would turn the entire administration of the trust over to Billy, no accounting would be required of him. He contended that all three of the cestuis que trust thus had knowledge of his abandonment of the trust to Billy and were, therefore, estopped by limitations and laches from demanding an accounting upon the termination of the trust. The chancellor held that the plea of laches was valid as to Billy, the successor active trustee, and dismissed the suit as to him, but he permitted the suit to continue on Audra and Kay’s complaint.

On the basis of reports by a certified public accountant, who initially testified for the appellant but did additional accounting work as master in chancery under direction of the chancellor, the chancellor determined that the appellant was indebted to Audra in the principal amount of $7,427.41 which together with interest at six per cent in the amount of $9,743.44, made a total amount of $17,170.85 owing to Audra as of August 1, 1973; that he was indebted to Billy in the principal amount of $8,959.45 which together with interest at six per cent in the amount of $11,164.21 made a total of $20,-123.61 owing to Billy as of August 1, 1973; that he was indebted to Kay in the principal amount of $10,468.60 which together with interest at six per cent in the amount of $12,-544.32 made a total of $23,013.92 owing Kay as of August 1, 1973.

The chancellor entered judgment for Audra against the appellant in the amount of $17,170.85 together with interest at six per cent from August 1, 1973, until paid, but gave the appellant credit on the judgment for the balance amount of $6,000 owed by Audra on a prior loan together with interest at six per cent from September 22, 1967, until the time of satisfaction of the judgment. The chancellor entered judgment against the appellant in favor of Kay in the amount of $23,013.92 together with interest at six per cent from August 1, 1973, until paid. The chancellor affirmed his findings as to the amounts due Billy but decreed that he take nothing against the appellant by judgment or otherwise since such relief was barred by the statute of limitations. The chancellor awarded costs, including the services of J. L. Michelle in the amount of $300, against the appellant and awarded $9,000 attorney’s fee and sheriff and circuit clerk costs in the amount of $37.00 against the appellant.

On appeal to this court the appellant relies on the points designated as follows:

“The denial of the defenses of limitations and laches as against the plaintiffs, Audra McPherson Johnson and Kay Lewis Dolnik on the grounds that they did not have notice that the defendant turned the entire management of the trust property over to the co-trustee and, in effect denied, repudiated and rejected the trust in the capacity of trustee is against the preponderance of the evidence.
The lower court’s disallowance of the credit claimed for (1) irrigation equipment, (2) automobiles purchased for the beneficiaries, (3) money advanced to Audra to attend the University of Arkansas, and (4) of equipment purchased from third parties with trust funds and delivered to the successor-trustee, are all based upon findings which are against the preponderance of the evidence.
The allowance of an attorney’s fee to the plaintiffs is unwarranted because no demand was made prior to the filing of this suit, and it is excessive.”

As to the appellant’s first point, we are unable to say that the chancellor’s decree was against the preponderance of the evidence. The appellant argues that all three appellees had knowledge of the trust and the appellant’s repudiation of it as early as 1960. All parties seem to agree on the law applicable to the defense of laches against trust beneficiaries who have personal knowledge of the trustee’s repudiation of the trust.

Restatement (Second) of Trusts § 219 (1957) is as follows:

“Laches of the Beneficiary
(1) The beneficiary cannot hold the trustee liable for a breach of trust if he fails to sue the trustee for the breach of trust for so long a time and under such circumstances that it would be inequitable to permit him to hold the trustee liable.
(2) The beneficiary is not barred merely by lapse of time from enforcing the trust, but if the trustee repudiates the trust to the knowledge of the beneficiary, the beneficiary may be barred by laches from enforcing the trust.”

Our decisions have followed the Restatement. See Meyers v. Meyers, 210 Ark. 714, 197 S.W. 2d 477 (1946).

In Sprigg v. Wilmans, 204 Ark. 863, 165 S.W. 2d 69 (1942), this court said:

“At page 903, 37 C.J., title Limitations of Actions, a great many cases are cited in support of this statement of the law:
‘(Section 267) 27. Trusts — a. General Rule. In case of a technical, or in other words, direct, express, continuing trust, such as is exclusively within the jurisdiction of a court of equity, the general rule, sometimes declared by statute, is that the statute of limitations does not run between trustee and cestui que trust, so long as the trust subsists, for the possession of the trustee is the possession of the cestui que trust and the trustee holds according to his title; and, moreover, so long as this condition exists, no cause of action has accrued. In order to set the statute in motion in favor of the trustee the trust must terminate, as by its own limitation or by settlement of the parties, or there must be a repudiation of the trust by the trustee and an assertion of an adverse claim by him, and the fact made known to the cestui que trust. This proposition is well established by all the numerous cases in which the question has arisen, and there is no conflict of authority whatever upon the subject. The rule, however, is subject to the qualification that the cestui que trust may be barred of his remedy through laches or such a lapse of time as will give rise to a presumption of discharge or extinguishment of the trust.’ ”

Thus, in the case at bar, it was a question of fact as to whether the beneficiaries had such knowledge of the appellant’s repudiation of the trust that laches would apply. The burden was on the appellant-trustee to prove that the beneficiaries had such notice. In the very early case of Harriet and others v. Swan & Dixon, 18 Ark. 495 (1857), this court said:

“[I]f it had been shown that Mrs. Barden had committed a breach of her trust beyond the mere nonexecution of it, it could not avail the appellants, because mere acquiescence in a breach of trust will not prejudice a person who was ignorant of his rights; and it lies upon the trustee, who rests his defense on the acquiescence of cestuis que trust in the breach of trust, to prove they had knowledge or notice of it. Hill on Trustees, p. 627 and other authorities cited by appellees. ”

The appellant contends that it is unrealistic to believe that appellees did not have notice of the repudiation because they knew of Billy’s taking over the farming operation and of Mrs. McPherson’s property settlement with the appellant, which he contends released him from an accountr g. Billy was co-trustee under the terms of the trust and the testimony of both the appellees contradicts appellant’s contention. Appellant also argues that the appellees stated reasons for not filing suit within nine years after appellant gave up control of the trust is not credible. In essence, appellant questions the credibility of the testimony. In Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972), we said:

“On appeal, this court will reverse a Chancellor’s findings of fact only when such findings are against the preponderance of the evidence, . . . and further, where the issue is predominantly one of credibility between interested parties, we uphold the Chancellor’s judgment.”

As a second basis for holding appellees Audra and Kay guilty of laches, the appellant argues that they were barred because Mrs. McPherson and Billy were co-trustees and were barred by laches. For this proposition appellant cites Restatement (Second) of Trusts § 327 (1957):

“Rights of Beneficiary When Trustee Barred by the Statute of Limitations or Laches.
(1) Except as stated in Subsection (2), if the trustee is barred by the Statute of Limitations or by laches from maintaining an action against a third person with respect to the trust property, the beneficiary is precluded from maintaining an action against the third person. (2) If the third person knowingly participated in a breach of trust, the beneficiary is not precluded from maintaining an action against him therefor, unless
(a) the beneficiary is himself guilty of laches, or
(b) a co-trustee who did not participate in the breach of trust, or a successor trustee knowing of the claim against the third person, fails to bring an action against him un - til he is barred by the Statute of Limitations or by laches.”

The appellant argues that the above quoted subsection (2) (b) applies to the case at bar and cites as additional support Chase v. Cartright, 53 Ark. 358, 14 S.W. 90 (1890); Hart v. Citizens’ Nat’l Bank, 105 Kan. 434, 185 P. 1 (1919). The appellant misapplies this authority. A fair reading of Restatement § 327 shows that it applies to a beneficiary’s action against a third person who benefited from the trust and does not apply to a beneficiary’s action against a wrong doing trustee. This section is part of Chapter 9 of the Restatement (Second) of Trusts entitled “Liabilities of Third Person.” Restatement, § 219, supra, and its commentary, which sets forth the basis for laches in a suit by a beneficiary against a trustee, does not refer to § 327, whereas, comment j of § 327 says:

“If the trustee permits the claim against the third person to be barred, the beneficiary can maintain a suit against the trustee for breach of trust (see § 177), unless he is barred by laches or otherwise from so doing (see § 219).”

Thus it would appear, the rules expressed in § 219 control the application of laches in a suit by a beneficiary against his trustee. The cases cited by the appellant in support of this argument on this point deal with suits by a beneficiary against third persons unconnected with the administration of the trust, and not against trustees or former trustees. In Chase v. Cartright, supra, the trustee held legal title to some land which was part of a testamentary trust. The defendant possessed this land adversely to the trust. The plaintiffs, who had been contingent remaindermen to beneficial interests in the property, brought suit when their interest vested. In holding the plaintiffs barred from bringing suit against the adverse possessor, this court said:

“Seven years adverse possession was sufficient to bar the right of the trustees, they being under no disability; but whenever the right of action in the trustees is barred by limitation, the right of cestuis que trust thus represented is also barred.”

In Hart v. Citizens' Nat'l Bank, supra, a trustee breached his trust by conveying certain stock in the trust corpus to the defendant bank. Shortly thereafter this trustee resigned and a successor was appointed. The successor trustee had knowledge of the stock transfer but never brought suit. The beneficiaries did not bring the action until they attained their majority, some 14 years later. The Supreme Court of Kansas applied the Restatement rule in § 327 and held the suit barred against the bank. The appellant has cited no case, and we have found none, wherein the beneficiaries of a trust were barred by laches from suing a wrongdoing trustee because a co-trustee or successor trustee failed to sue within a reasonable time.

The appellant finally argues that laches applies in this case because the appellees obtained copies of the trust agreement in December, 1965, and knew from it that an annual accounting was required, but failed to bring the action until April, 1969. This argument is without merit since the period of laches ran from the time the appellees received knowledge of the trustee’s repudiation of the trust. Meyers v. Meyers, supra.

As to the appellant’s second point, the rule is well established that a trustee has only such powers as are conferred by the terms of the trust; are necessary or appropriate in carrying out the purposes of the trust, and are not forbidden by its terms. Restatement (Second) of Trusts, § 186 (1957); Linsay v. White, 212 Ark. 541, 206 S.W. 2d 762 (1947).

The declaration in the case at bar recites as one of its purposes:

“ [T]o place such estates in trust in order that it may be properly administered prior to the time said children reach the age of twenty-five years.”

Paragraph 3 of the declaration provides that:

“Out of the gross income of the trust, the Trustees shall first pay all necessary and reasonable costs incident to the proper protection, management, conservation and improvement of the trust estate.”

The chancellor allowed credit on the judgment against the appellant for some items claimed by the appellant and he denied others. We shall only discuss the items the appellant argues were erroneously disallowed. He first argues that the chancellor erred in disallowing a $1,500 claim for the value of an engine and two re-lift pumps which were part of the irrigation system belonging to the trust. We agree with the appellant on this point. The chancellor properly allowed credit for the construction of a reservoir and canal system on the trust lands, and we conclude that the engine and two re-lift pumps were incidental to the proper protection, management, conservation and improvement of the trust estate. This item was disallowed by the chancellor because proper records of cost were not kept and submitted in evidence. We are of the opinion that the depreciation schedule on the items reflected in the appellant’s tax returns, was sufficient justification for the amount of the claim, and that this item should have been allowed.

The appellant next argues that the chancellor erred in not crediting the appellant with two automobiles purchased for Audra and Kay. We are of the opinion that the chancellor was right on these two items. There was evidence from which the chancellor could have concluded that the automobile for Audra was purchased by the appellant as a birthday present from father to daughter, and that the automobile purchased for Kay was a wedding present. The appellant points to Audra’s testimony pertaining to the strained family relations about the time the automobile was purchased for her, but there was also testimony that the appellant had considerable interest and also considerable difficulty in getting Audra to attend college; that the automobile was purchased in connection with such persuasion and Audra considered it a birthday present from her father. As to Kay’s automobile, it appears to have been purchased after the appellant ceased his activities as trustee and that it was actually paid for out of his own personal funds for which he claimed reimbursement from the trust.

The appellant next contends that the chancellor erred in not giving the appellant credit for monies advanced to Audra for her college education in the years 1957 and 1958. We agree with the appellant on this item. Even though Audra testified that she had no knowledge of the trust fund until 1960, she admitted that in 1956 she endorsed and cashed a check drawn on the account of “ W. E. and Helen McPherson trust fund by W. E. McPherson” in the amount of $200. She testified, however, that she was only 17 or 18 years of age at the time she cashed this check and did not pay a bit of attention to what account the check was drawn on. She then testified as follows:

“Q. I hand you another document and ask you whether or not you can identify it as being a check you received and cashed?
A. Yes, I did. It’s dated 1-25-57 in the amount of $370.00 made out to Audra Nell McPherson signed by W. E. and Helen McPherson trust fund by W. E. McPherson. I still say that I was not aware of this trust fund business, which was stupidity on my part, I’ll admit.
Q. You did endorse that check?
A. I did endorse that check.
Q, Isn’t it true that you received many such checks while you were in school and while you were working down in Texas?
A. Not while I was working in Texas, I didn’t receive any.
Q. While you were in school?
A. While I was in school, but I remember one time when I was going to school and I don’t know . . .
Q. If it’s not in answer to my question . . .
A. Well, I’m trying to explain about the checks. Would you like for me to finish?
Q. My question is, did you receive other checks drawn on this trust while you were in school.
A. I don’t remember if they were drawn like that. They could have been.
Q. There could have been others?
A. Yes, sir.
Q. You did receive money from your father on this account or other accounts while you were in school?
A. While I was in school, yes.”

The appellant testified as to the difficulty he encountered in attempting to get Audra to accept a college education. The record indicates that Audra worked one year at the University of Arkansas when her father thought she was attending classes and she was not. The appellant testified that before he started sending her checks written on the trust account, he advised her the money would be charged to her account. We are of the opinion that the appellant should have credit for the amounts paid to Audra while she was attending college and while her father thought she was attending college in 1957 and 1958.

The appellant next argues that the chancellor erred in disallowing the appellant’s claim in the amount of $12,084.85 for farm machinery purchased by the appellant in 1959 and delivered to Billy as successor trustee in 1960. We agree with the appellant as to this item. The record indicates that prior to 1960 when Billy took over the administration of the trust and started farming the trust lands, the lands had been farmed, by tenants under a system whereby the tenants furnished their own farming equipment. Billy not only administered the trust as sole trustee after 1960, but he also farmed the land and owned.no farming equipment with which to do so. The farm machinery so purchased by the appellant was transferred to Billy as trustee and belonged to the trust and became a part of the trust estate. The trust indenture provided that “The Grantors may from time to time convey to themselves, as Trustees, additional property to be added to the corpus of this trust for the same uses and subject to the same terms and conditions as herein set forth”; and the indenture further provides for the expenditure of funds in the proper management of the trust estate. Furthermore, it would only be equitable for the trust to pay for the farm machinery owned by it and used by the trustee farming the trust lands. We are of the opinion that the appellant should have been credited with the $12,084.85 for farm machinery he purchased for the trust and delivered to Billy as successor trustee.

The appellant next argues that the allowance of attorney’s fee for the appellees and charged against the appellant was unwarranted because no demand for an accounting had been made prior to the time the suit was filed. The appellant cites no statutory or case law in support of this argument and we are of the opinion that the argument is without merit. It is apparent from the record that a demand for accounting would have been an idle gesture since the appellant’s primary defense was that the appellees were barred by laches following a family settlement agreement.

The appellant next argues that the amount awarded the appellees as attorney’s fee was excessive and we agree with this contention. The attorneys representing the appellees originally did so under a contingent fee arrangement whereby they would receive 25% of amounts recovered in the event of recovery, and would receive nothing if no recovery was obtained. We conclude that the assessment of attorneys’ fee in the amount of $9,000 was excessive in this case, and that the fee awarded against appellant should be reduced to $5,000.

The amount of money advanced to Audra for college expenses during 1957 and 1958 is not clear from the record before us so we conclude that this case should be remanded to the chancery court for entry of a decree not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded.


author: Conley Byrd, Justice.

text:
    Jack MORGAN et al v. Thomas E. SPARKS et al
    74-327
    523 S.W. 2d 926
    Opinion delivered June 9, 1975
    [Rehearing denied June 30, 1975.]

      Herschel H. Friday, James A. Buttry, and Thomas P. Leggett, for appellants.

      Jack Lessenherry and Howell, Price, Howell & Barron, for appellees.
   Conley Byrd, Justice.

Thomas E. Sparks brought this action against Jack Morgan, et al, as members of the Arkansas Public Building Authority and some nominal constitutional and administrative officers attacking the bond issuing provisions of Act 236 of 1973 and to declare certain acts of the Public Building Authority, (hereinafter referred to as “PBA”) as being invalid and unlawful. Kelly Bryant, Secretary of State, was permitted-to intervene on the theory that there was a conflict between the authority given him by several appropriations acts and the “Arkansas State Capitol Complex Master Plan” adopted by the “PBA”. The trial court held that the authorization by Act 236, supra, to issue revenue bonds violated Amendment 20 to the Constitution of Arkansas. Since the trial court reasoned that the Arkansas State Capitol Complex Master Plan depended entirely upon the sale of bonds, he enjoined the “PBA” from any further expenditure on the Master Plan. The trial court also enjoined the Secretary of State from any further construction in the area until the General Assembly should resolve the conflicts between him and the “PBA”. The “PBA” has appealed contending only that the authorization for the issuance of the bonds does not violate Amendment 20 to the Arkansas Constitution. Sparks and the Secretary of State have cross-appealed raising the issues hereinafter discussed.

The record shows that there are a number of State Agencies in Pulaski County paying out a considerable amount of rental money each year for office space to private property owners and that to alleviate this rental problem, the “PBA” was created by Act 236 of 1973. After creating the “PBA”, Act 236 [Ark. Stat. Ann. § 5-1002.1 (Supp. 1973)] transfers to the “PBA” certain lands acquired in the name of the State of Arkansas by the Arkansas Revenue Department Building Commission pursuant to the provisions of Act 151 of 1965. Section 4 of Act 236 provides:

“The Authority is hereby authorized and empowered to
(a) ■ • •
(b) Use the land acquired by the Arkanaas Revenue Department Building Commission, which are transferred to the Arkansas Public Building Authority under the provisions of subsection (b) of Section 3 of this Act as sites for public buildings, and obtain additional sites. ...”

With reference to the “Bids for Construction”, Section 13 of Act 236 provides:

“The Authority is hereby authorized to employ architects to prepare plans, specifications and estimates of cost for the construction of public buildings hereunder and to supervise and inspect such construction. After the Authority shall have approved the plans and specifications prepared by the architect, it shall proceed to advertise for bids and contract for the construction of the public buildings in accordance with applicable laws governing the construction of public buildings. ...”

The General Assembly also appropriated $15,000,000.00 for the use of the “PBA”.

The record shows that after the “PBA” had employed the necessary architects, it jettisoned a proposed construction of a highrise building on the land acquired from the Arkansas Revenue Department Building Commission and instead developed the plan for its “Arkansas State Capitol Complex Master Plan” which would use the Capitol Mall area and require a total expenditure of approximately $74,000,000.00. The “PBA” also decided that considerable time and money could be saved by letting construction contracts on a “fast tracking method”. Under this “fast tracking method”, the “PBA” was letting contracts for certain phases of the construction before the final plans for other stages of the building was complete.

Following the entry of the trial court’s decree, the General Assembly passed Act 270 of 1975, effective as of February 28, 1975, repealing PBA’s authority to issue bonds without legislative approval. Because of our settled policy of not ruling upon constitutional issues without an actual controversy, we find that Act 270 of 1975 has mooted the issues on this appeal with reference to the authority of the “PBA” to issue revenue bonds. Consequently, we do not reach the merits of the direct appeal by the “PBA”.

On his cross-appeal, Sparks first contends that the transfer of property from the Arkansas Revenue Department Building Commission to the “PBA” is contrary to Art. 16, § 11 of the Constitution of Arkansas, which provides that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.” We find no merit in this contention because the Act under which the land was acquired by the Arkansas Revenue Department Building Commission specifically recognized that the lands were to be acquired for public purposes. See Section 6 of Act 38 of the First Extraordinary Session of 1961.

We agree with Sparks that under Section 4 (b) of the Act, supra, the “PBA” was only authorized to use the land transferred from the Arkansas Revenue Department Building Commission. The Authority to “obtain additional sites” does not authorize the “PBA” to use those sites to construct buildings thereon.

Sparks also contends that the “PBA” has violated Section 13 of the Act, supra, by proceeding with construction before the architects’ plans and specifications are complete. We agree with his contention that the literal meaning of Section 13 prohibits the advertising and accepting of bids until the “PBA” has approved the plans and specifications for the construction of the building.

Since our construction of Section 4(b), supra, limits the “PBA” to using the lands transferred from the Arkansas Revenue Department Building Commission, it necessarily follows that the trial court was in error in enjoining the Secretary of State from proceeding with his authorized construction.

Reversed and remanded for entry of a decree not inconsistent herewith. Such decree shall note that the grounds upon which the trial court relied for entering the injunction have become moot by virtue of the authority withdrawn from the “PBA” by Act 270 of 1975. Of course nothing herein said is to be accepted as our approval or disapproval of the bond issuance authorized by Act 270 of 1975. All costs are assessed against the “PBA”.

      There is some question in the record as to whether the Capitol Mall area was properly obtained by the “PBA”.