author: J. Fred Jones, Justice.

text:
    William LOVETT, by Jesse LOVETT, his next friend v. Beulah LOVETT
    5-6241
    493 S.W. 2d 435
    Opinion delivered April 30, 1973

      Paul K. Roberts, for appellant.

      Haley ¿r Claycomb, for appellee.
   J. Fred Jones, Justice.

William Lovett, by Jesse Lovett his father and next friend, filed a petition for divorce against Beulah Lovett in which he alleged their marriage on February 23, 1963; their separation on July 1, 1966, and three years separation without cohabitation as well as general indignities as grounds for divorce. The petitioner also alleged the birth of two children, five and six years of age, as a result of the marriage. The parties will hereafter be referred to by their given names for brevity and convenience. By amendment to the petition, under order to make more definite, it was alleged that on January 11, 1952, William was adjudicated to be incompetent by the probate court of Bradley County and that the First National Bank of Warren was appointed guardian. The amendment also added desertion as alleged grounds for divorce and amended the date of separation to May, 1968.

In her answer Beulah admitted the marriage on February 23, 1963; the guardianship in 1952 and the separation in May 1968. She denied the other allegations. She counterclaimed for divorce from bed and board, and alleged that three children were born as a result of the marriage, their birth dates being September 26, 1963, November 3, 1964, and December 25, 1968. On December 14, 1970, the chancellor required the petitioner as well as the counterclaimant to make their pleadings more definite and certain. On February 3, 1971, Beulah filed an amended motion stating that following intermittent separations after their marriage on February 23, 1963, she and William finally separated in August, 1967. and had lived separate and apart for more than three consecutive years without cohabitation because of the incurable insanity of William. On February 9, 1971, Jesse also filed a motion for William praying that the pleadings be conformed to the proof and that the marriage be annulled because William was mentally incapable of entering into the marriage contract. In response to Beulah’s amended motion, William admitted that he and Beulah had lived separate and apart for more than three years but denied that the separation was caused by his incurable insanity. In response to William’s motion, Beulah denied that William was incapable of entering into a marriage contract because of his adjudged incompetency on January 11, 1952. She denied that the marriage should be annulled.

The chancellor denied relief to both parties. In denying Beulah’s counter-petition, the chancellor found that William was adjudged incompetent under the Uniform Veterans Guardian Act, Ark. Stat. Ann. § 57-501, et seq. (Repl. 1971), on January 11, 1952, and that no certificate has been filed by the Veterans Administration showing that William is still rated incompetent; that the proof does not show that William had been confined to an institution for the care and treatment of the insane for three years or prior to the commencement of the action, and that Beulah’s petition for an absolute divorce should be denied for lack of proof.

In denying relief to William the chancellor applied the general rule as to insane persons stated in Jackson, Executor v. Bowman, Guardian, 226 Ark. 753, 294 S.W. 2d 344, where this court said:

“In the absence of a statute so authorizing it, . . . an insane person cannot institute an action for divorce. . .”

The chancellor then held that the only statutory authorization under which William could maintain an action for divorce is Ark. Stat. Ann. § 34-1202 (Supp. 1971) (willful desertion), and the chancellor found that since the witnesses only testified as to the separation, William had failed to prove willful desertion on the part of Beulah. On William’s petition for annulment the chancellor found that William testified on June 8, 1970, that he was in full possession of his faculties when he and Beulah were married on February 23, 1963; that Beulah testified she knew nothing of the' probate proceedings and that William was not of unsound mind when they married. The court then held that William was not entitled to an annulment because of his sworn testimony pertaining to the marriage; estoppel by pleadings, and subsequent birth of children, as well as the lack of proof of mental condition, medical or otherwise, on the date of the marriage. The chancellor then pointed out that in Hill v. Hopkins, 198 Ark. 1049, 133 S.W. 2d 634, this court said:

“ ‘. . . the mere appointment of a guardian or continuance of the guardianship is not conclusive evidence of such mental incapacity as would make void all acts of the ward. * * *[T]here is no evidence in this entire record indicating mental incapacity, except the probate record showing the appointment of a guardian and this is not conclusive. It is prima facie evidence.’ ”

As to William’s allegations of three years separation, the chancellor said:

“The only statutory authorization for William to maintain this action is Section 34-1201 (Eight, second part, the last two sentences), which reads, (Where either party wilfully deserts and absents himself or herself from the other for a space of one year without reasonable cause. Where the spouse so deserted shall be mentally incompetent, the court shall have the power to grant an absolute divorce upon the petition of the next friend of such incompetent or the duly appointed guardian. ...”

The chancellor then found that the parties need a divorce but concluded that he could not grant relief under the facts and the authorities pertaining thereto. We are of the opinion the chancellor erred in this conclusion.

The chancellor was careful to point out in his findings that the First National Bank of Warren was the guardian of William’s estate and not of his person. We find no evidence in the record that William was ever under guardianship as to his person and we find no evidence indicating a present or recent need for a personal guardian. Certainly his own testimony does not indicate such need. We are of the opinion that there is a distinction between insanity, or the degree of incompetency that would preclude a person from entering into a marriage contract or suing for the dissolution of one entered into, and the degree of incompetency requiring the appointment of a guardian for the estate of a veteran for the purpose of receiving veteran’s benefits.

William testified at the trial in this case and there is nothing in his testimony to indicate that he is insane. There is no evidence in the entire record that he is incompetent to handle his personal and business affairs except a medical certificate filed with the petition for the appointment of a guardian and the order of the Bradley County Probate Court dated January 11, 1952, more than 20 years ago. William was declared incompetent to handle his business affairs and a guardian of his estate was appointed upon the petition of Merchants and Planters Bank of Warren accompanied by a certificate of the chief attorney of the Veterans Administration, to the effect that William had been rated incompetent by a staff of physicians in accordance with laws and regulations governing Veterans Administration and requiring the appointment of a guardian as a condition precedent to the release of benefits due the veteran. The probate court order of January 11, 1952, recited a finding that William was adjudged to be incompetent and in need of a guardian for his estate, and the Merchants and Planters Bank of Warren was appointed guardian of William’s estate. The guardian was then authorized to release to William’s father, Jesse M. Lovett, funds for food, clothing, spending money, etc. for William.

In 19 A.L.R. 2d § 20, p. 182, is found the following:

“Since the right to sue for a divorce is regarded as strictly personal to the aggrieved spouse, and no matrimonial offenses automatically effect a dissolution of the marriage, the general rule is that, in the absence of statute so authorizing, an insane person cannot institute an action for divorce.” See also Jackson v. Bowman, 226 Ark. 753, 294 S.W. 2d 344.

Section 21 of the same annotation, however, states as follows:

“In the absence of a legal adjudication of insanity it will be presumed generally that a person has the capacity to bring a divorce action, even though not of a strong mind, it being essential only that the plaintiff have sufficient mentality to understand the nature of the action taken.” (Emphasis added).

In the Georgia case of Akin v. Akin, 163 Ga. 18, 135 S.E. 402, a wife who had become insane and been committed to a state sanitarium from which she had been allowed to go on furlough under custody of her mother, the trial court was authorized to find that the plaintiff had sufficient mental capacity to institute and prosecute a suit for alimony without a next friend or guardian ad litem.

In Serio v. Serio, 201 Ark. 11, 143, S.W. 2d 1097, a suit for divorce was brought against the wife under the three year separation statute. The wife was incurably insane and had been confined in hospitals for the insane for almost 20 years. The complaint was dismissed for want of equity and in affirming we said:

“Our construction of the statute is that it assumes that the period of living apart without cohabitation for three years must have been the conscious act of both parties in order to entitle one of the parties to a divorce. The purpose and intent of the act was not to grant divorces on the ground of insanity of either party else it would have said so. * * * We find nothing in the act which manifests an intention to make insanity a ground for divorce.”

We concluded the opinion in that case, however, with the following statement:

“Since the undisputed evidence in this case shows that appellee was not capable of committing a conscious act during the period of separation, the trial court correctly dismissed appellant’s complaint.”

In the case of Hill v. Hopkins, supra, cited by the chancellor in the case at bar, a guardian had been appointed for Hill because of some mental defect he had and the guardianship had never been discharged. Some real property had been purchased by the Hills and legal title taken in the wife’s name. Hill had made declarations that his wife owned the property. The wife conveyed the property in exchange for an automobile and Hill attempted to set aside the conveyance for fraud. Hill sought to avoid the effect of his prior declarations by declaring that he was still laboring under the disability of mental incapacity and that his wife was in fact a trustee. Hill offered considerable evidence as to his incapacity, but there was other evidence that he went about conducting his affairs as an ordinary competent person would do. In that case we said:

“Mr. Hill seeks to avoid the effect of his declarations that his wife was the owner by alleging the continuance of his mental incapacity, until later on when he procured his guardian to be discharged, and after the discharge of his guardian he was then free to assert the invalidity of his acts, and seek to establish a trust and recover the land. The error of this conclusion on his part arises out of the well known fact that the mere appointment of a guardian or continuance of the guardianship is not conclusive evidence of such mental incapacity as would make void all acts of the ward. * * * True, he may have been easy to anger and may have frequently shown his angry moods. He may have been peculiar, but we submit that there is no evidence in this entire record indicating mental incapacity, except the probate record showing the appointment of a guardian and this is not conclusive. It is prima facie evidence. It had been frequently so held. 14 R.C.L. 621, § 73.”

In the recent case of Wilson v. Rodgers, 250 Ark. 335; 468 S.W. 2d 739, we rendered a per curiam opinion on petition for rehearing in which we pointed out that we ordinarily decide equity cases de novo on appeal but that when the cause has been tried in chancery court upon an erroneous theory, and we are unable to determine from the evidence before us what decree should have been rendered, we will in the furtherance of justice remand the cause to be reopened to additional proof, so that the case may be determined upon proper principles.

In the case at bar the evidence is clear that the parties have lived separate and apart without cohabitation for over three years. The only evidence bearing on the question of William’s insanity or incompetency is the probate court order dated January 11, 1952, based on veteran hospital medical examinations conducted prior to that date. Beulah testified that William should be in a hospital but she also testified that she associated with him for approximately one year prior to their marriage and that she didn’t even know he was under guardianship until approximately two years after their marriage, during which time he appeared to be perfectly normal. Beulah is a school teacher with a college degree. This marriage occured 11 years after a guardian was appointed for William’s estate and there is no evidence that William’s condition has changed since the marriage.

We conclude, therefore, that in the interest of justice, this case should be remanded to the chancery court for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: J. Fred Jones, Justice. Carleton Harris, Chief Justice, John A. Fogleman, Justice,

license: Public Domain

text:
    Dan McCRAW et al v. William D. PATE
    73-68
    494 S.W. 2d 94
    Opinion delivered April 30, 1973
    [Rehearing denied June 4, 1973.]

      Glover ir Sanders and Jim Guy Tucker, Atty. Gen., for appellants.

      Lane, Muse, Arman & Pullen and Thomas A. Glaze, for appellee.
   J. Fred Jones, Justice.

At the general election in November, 1972, Tommy Smith was elected sheriff of Garland County. At that same election the incumbent sheriff, Eugene “Bud” Canada, was elected to the Arkansas Senate from Garland County. On December 26, 1972, Tommy Smith died and on December 29, 1972, Mr. Canada resigned from the office of sheriff, whereupon the Governor appointed the appellee, William D. Pate, to fill out the unexpired term of Canada. The term for which Canada had been elected sheriff expired on December 31, 1972. The appointment of Mr. Pate was made on December 29, 1972, and the certificate of appointment and commission recited his appointment as sheriff of Garland County “for a term to expire 12-31-72.”

Within 15 days after the death of Smith, petitions were filed with the Governor requesting a special election for the office of sheriff of Garland County pursuant to the provisions of Act 196 of 1971, Ark. Stat. Ann. § 3-106 (Supp. 1971). This statute reads as follows:

“Whenever a person shall have been elected at a General Election to fill any elective county office and the person so elected shall, subsequent to the date of the General Election and prior to January 1 of the year in which such person is to take office, die or withdraw in writing, a Special Election to choose a person to assume said office may be held if petitions therefor, filed by not less than fifteen per cent (15%) of the qualified electors of the county, as determined by the total number of votes cast for all candidates for the Office of Governor in the next preceding General Election, shall be filed with the Governor within fifteen (15) days from the date of such death or written withdrawal from said office. Upon receipt of such petitions, the Governor shall call a special election to elect a person to fill such vacant county office. Nominations therefor shall be in accordance with the procedures, and the Governor shall be guided in the calling of such special election, as provided in subsection (e) of Section 5 of this Article [§ 3-105] with respect to special elections to fill a vacancy in office. The incumbent holding such office shall serve until such time as the results of such special election are certified and the newly elected official takes the oath of office and qualifies.”

On February 13, 1973, the Governor issued a proclamation calling a special election in Garland County for the purpose of electing a sheriff. The filing deadline for candidates was set for 12 noon on March 1, 1973; the first primary was set for April 10, 1973, with runoff election, if one should be necessary, set for April 24, 1973, and the special general, or final election for the office, was set for May 8, 1973. Several candidates, both Democratic and Republican, qualified as candidates for sheriff at the special election and Sheriff Pate also attempted to qualify as a candidate. He tendered his filing fee and political practice pledge to the proper election officials but the tenders were refused on the ground that he was not eligible as a candidate to succeed himself under Amendment 29 of the state Constitution. Amendment 29 was adopted in 1938 and reads as follows:

“Sec. 1. Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment by the Governor.
Sec. 2. The Governor, Lieutenant Governor and Acting Governor shall be ineligible for appointment to fill any vacancies occurring or any office or position created, and resignation shall not remove such ineligibility. Husbands and wives of such officers, and relatives of such officers, or of their husbands and wives within the fourth degree of consanguinity or affinity, shall likewise be ineligible. No person appointed under Section 1 shall be eligible for appointment or election to succeed himself.
Sec. 3. No person holding office contrary to this amendment shall be paid any compensation for his services. Any warrant, voucher or evidence of indebtedness issued in payment for such services shall be void.
Sec. 4. The appointee shall serve during the entire unexpired term in the office in which the vacancy occurs if such office would in regular course be filled at the next General Election if no vacancy had occurred. If such office would not in regular course be filled at such next general election the vacancy shall be filled as follows: At the next General Election, if the vacancy occurs four months or more prior thereto, and at the second General Election after the vacancy occurs if the vacancy occurs less than four months before the next General Election after it occurs. The person so elected shall take office on the 1st day of January following his election.
Sec. 5. Only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petition of electors as provided by law, shall be placed on the ballots in any election.”

On February 21, 1973, Mr. Pate filed a petition in the circuit court for a writ of mandamus directing the chairman and secretary of the Garland County Democratic Committee and the county clerk, to certify his name as a candidate and to place his name on the ballots. The respondents answered by admitting they had failed and refused to accept petitioner Pate’s ballot fee and they prayed for a declaratory judgment determining his status under Amendment 29 to the Constitution and, his rights and legal status as a candidate for elecdon to the office of sheriff of Garland County in the special elecdon to be held pursuant to the Governor’s proclamation.

On February 27, 1973, Mr. Pate filed an amendment to his original petition questioning the validity of the special elecdon called under the provisions of section 3-106 and questioning the constitutionality of the statute under Amendment 29 of the state Constitution. Mr. Pate then prayed for a declaratory judgment holding section 3-106 inapplicable to him. In the alternative he prayed that a writ of mandamus issue requiring the respondents to permit him to qualify as a candidate for sheriff in the special elections and to place his name on the ballots.

On February 27 the trial court entered an order for a writ of mandamus direcdng the respondents to accept Pate’s ballot fee, etc. permitting him to qualify as a candidate for sheriff of Garland County in the called special election, and direcdng them to cause his name to be printed on the special elecdon ballots. The order then recited as follows:

“. . . final disposition of this cause shall be rendered by the Court upon the submission of all pleadings, briefs and contentions of the parties as directed by this Court.”

Following amendments to pleadings, the submission of briefs, and arguments of counsel, the trial court on March 20, 1973, entered its findings and final judgment thereon as follows:

“. . . the Court doth find:
1. That the petitioner was duly and legally appointed by the Governor pursuant to the Arkansas Constitution to an existing vacancy of Sheriff of Garland County, Arkansas.
2. That the petitioner is in possession of said office of Sheriff of Garland County and is legally authorized to pursue the duties of the Sheriff of Garland County.
3. That Ark. Stat. Ann. § 3-106 is in contravention of Amendment 29 to the Arkansas Constitution and the special elections called pursuant to § 3-106 are unconstitutional and void.
4. That since the special elections are unconstitutional, no finding or decision is necessary regarding the constitutionality of Ark. Stat. Ann. § 3-615.
IT IS THEREFORE, considered, ordered and adjudged that Ark. Stat. Ann. § 3-106 is not applicable in this cause and further that § 3-106 is unconstitutional; that the special elections called pursuant to § 3-106 are illegal and invalid.”

On appeal to this court the appellant-respondents rely on the following points for reversal:

“The trial court erred in holding that the appellee is eligible to succeed himself in the office of sheriff, as he was not eligible to be a candidate following his appointment, nor serve if elected.
Appellee having elected to have his name placed on the ballot as a candidate, is now precluded from asserting th^ illegality of the special election.
The trial court erred in ruling that Ark. Stat. Ann. § 3-106 is not applicable to the facts of this cause and further erred in ruling that Ark. Stat. Ann. § 3-106 is unconstitutional and that the special election called pursuant to that statute, is illegal and invalid.”

We shall not discuss the first two points for they become moot under the conclusion we have reached. We agree with the trial court that section 3-106, supra, is unconstitutional as it applies to this case, and that the special election called pursuant to that statute is illegal and invalid. The question, therefore, comes down to whether or not section 3-106 is in conflict with Amendment 29 of the state Constitution, and we have concluded that it is.

Article 3, § 8 of the Constitution provides:

“The general elections shall be held biennially, on the first Monday of September; but the General Assembly may by law fix a different time.”

In construing this provision of the Constitution in Hendricks v. Hodges, Sec’y State, 122 Ark. 82, 182 S.W. 538, this court said:

“There is an express grant in the Constitution to the Legislature of die power to change the dates of biennial elections. Article 3, section 8. The only limitations upon that power is that elections shall be held biennially, and, of course, the Legislature has no power to provide otherwise.”

Article 6, § 23 of the Constitution provides:

“When any office from any cause may become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have the power to fill the same by granting a commission, which shall expire when the person elected to fill said office, at the next general election, shall be duly qualified.”

Article 7, § 46 of the Constitution provides for the election of one sheriff in each county for a term of two years. Article 7, § 50 (prior to the adoption of Amendment 29) provided as follows:

“All vacancies occurring in any office provided for in this article shall be filled by special election, save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancies shall be filled by appointment by the Governor.”

The Constitution was, of course, adopted in 1874. In 1877 the legislature passed Act 20, digested in Kirby’s Digest, § 7991, as follows:

“In any case wherein a vacancy in any office shall occur, to be filled, under the provision of the constitution, by a special election, the governor shall have the power temporarily to fill the same by granting a commission, which shall expire when the person elected to fill said office, at such special election, shall be duly qualified.”

Section 50 of Art. 7 of the Constitution, along with its implementing statute, Act 20 of 1877, remained unchanged until 1938 when Amendment 29 superseded Section 50 of Art. 7 as well as Act 20 of 1877.

The case of Means v. Terral, 145 Ark. 443, 225 S.W. 601, arose under Section 50 of Art. 7 prior to the adoption of Amendment 29 and may shed light on some of the problems involved under Section 50 and some of the reasons for the adoption of Amendment 29. In the Means case a vacancy occurred in the office of circuit judge by the death of the incumbent in June, 1919. His term of office would have expired on December 31, 1922, so the Governor made a temporary appointment to fill the vacancy. The Governor, however, failed to call the special election provided for in section 50. Attorney Means attempted to file his certificate of nomination with the Secretary of State to run as a candidate for the office in the general election to be held on November 2, 1920. The matter reached this court on appeal by Means from the judgment of the circuit court denying his petition for mandamus, and the question presented on appeal was whether or not an election to fill the vacancy for the unexpired term could be held at the approaching biennial general election on November 2, 1920, without a proclamation by the executive calling for an election on that date to fill the vacancy. Of course, the incumbent had died more than nine months prior to the next general election (1920) and section 50 of Art. 7 required that the vacancy be filled by special election. Consequently, the Governor had no constitutional authority to fill the unexpired term by appointment, but he did have authority under Art. 6, § 23, supra, and Kirby’s Digest, § 7991, supra, to temporarily fill the vacant office by granting a commission. The statute under which the commission was issued provided that the commission should expire when the person elected to fill the office at such special election should be duly qualified, so the Governor simply filled the vacancy by appointment under this statute and failed or refused to call a special election under section 50, supra.

It was the appellant’s contention in Means, supra, that notwithstanding the failure of the Governor to call a special election as required by the Constitution, the commission issued to the incumbent would expire upon the election of a judge at the approaching general election (the first general election after the office became vacant) to fill the unexpired term. It was the contention of the respondent Secretary of State, that the vacancy could only be filled at a special election called by the Governor to elect a judge to fill the unexpired term. This court pointed out at the outset in Means, that the Constitution did not affirmatively confer power on the Governor to make an appointment at all, unless the vacancy occurred within a specified time before the next general election, which in that case was nine months. This court then said:

“It is only on account of the silence of the Constitution that the Legislature is empowered to confer authority upon the Governor to make a temporary appointment to fill a vacancy until a special election could be held. Cobb v. Hammock, 82 Ark. 584; State ex rel. v. Stevenson, 89 Ark. 31. In either event, whether the appointment be made under the statutory authority where the vacancy occurs more than nine months before the next general election, or be made under the constitutional authority where the vacancy occurs within nine months before a general election and the term extends beyond the next election, the appointment is only temporary and not for the unexpired term. * * * It was clearly the policy of the framers of our Constitution to provide for the filling of vacancies in office by election and not by appointment . . . .” (Emphasis added).

Citing from State ex rel. v. Stevenson, supra, this court then said:

“ ‘It was evidently the intention of the framers of the Constitution of 1874 that the appointing power should be limited. Its policy was to fill vacancies by election.’ ”

This court in Means then continued:

“An election by the people to fill a vacancy, whether at a special election or at the succeeding general election, is for the unexpired term, but, as before stated, any appointment made by the Governor is, under the Constitution, temporary. We have just said that an appointment by the Governor within nine months before the next general election expires on the filling of the vacancy for the unexpired term at the next election. The words ‘next.general election,’ could not reasonably be construed to mean the general election at the expiration of the term, for, if we put that construction on the language, there would be no power conferred by this section of the Constitution for the Governor to make an appointment, unless the vacancy occurred within nine months before the expiration of the term. It is clear therefore that the framers of the Constitution, pursuant to the policy of having biennial general elections so that all vacancies should be filled by election, did not intend to confer any express authority upon the Governor to make an appointment, except where the vacancy occurred within nine months before the next general election, meaning the next election succeeding the occurrence of the vacancy, and that the commission issued under that appointment should expire at that election. If, therefore, the vacancy in this instance had occurred within nine months before the next general election, the calling of a special election would have been unnecessary, and the people would, by operation of law, be called on to fill the vacancy for the unexpired term at this election.”

It is abundantly clear that Amendment 29 completely eliminated and superseded section 50 of Art. 7 and by so doing, it eliminated and superseded the only constitutional authority for the filling of vacancies in constitutional offices by special elections. Section 1 of Amendment 29 is clear and to the point; it just as clearly eliminated special elections as a menas of filling vacancies in the designated offices as section 50 of Art. 7 provided therefor. Section 50 simply said “all vacancies . . . shall be filled by special election. . .” and section 1 of Amendment 29 simply says “vacancies. . . in all . . .county . . .offices . . .shall be filled by appointment by the Governor.” Our interpretation of Section 1 of Amendment 29 renders moot the application of section 2 to the facts in the case now before us, and section 3 has no application and is not involved. Section 5 does not mention special elections and apparently applies tp general elections. In any event, no question is raised under this section in the case at bar.

Now, after providing in section 1 of Amendment 29 for appointment rather than special elections to fill vacancies in office, section 4 of the Amendment clarified and settled the question that arose in the Means case. Section 4 simply provides that the appointee shall serve during the entire unexpired term in the office in which the vacancy occurs if such office would in regular course be filled at the next general election if no vacancy had occurred. If the office would not in regular course be filled at the next general election, it would nevertheless be filled at the next general election if the vacancy occurs four months or more prior thereto. If the vacancy occurs less than four months before the next general election, the office is to be filled at the second general election after the vacancy occurs. In any event, the person so elected takes office on the first day of January following his election.

The legality of Pate’s appointment is not questioned in this case. There seems to be no question that he became an “officer” when he took the oath under his appointment and entered upon his duties as sheriff. It is quite true the term of office to which he was appointed expired on December 31, 1972, two days after his appointment, but section 5 of Art. 19 of the Constitution says that “all officers shall continue in office after the expiration of their official terms until their successors are elected and qualified,” and that is all section 5 does say. The vacancy created by Senator Canada’s resignation occurred more than four months before the next general election so section 4 of Amendment 29 requires that the vacancy be filled at the next general election.

In Justice v. Campbell, 241 Ark. 802, 410 S.W. 2d 601, County Judge Campbell, whose term of office would have expired on December 31, 1966, failed to run for reelection and Tom Gulley was elected to the office at the 1966 general election. Mr. Gulley died before assuming office and before Campbell’s term had expired. The primary question in that case was whether a vacancy occurred in the office of county judge at the end of the term for which Campbell had been elected. Mr. Justice was appointed to the office under a statute (Act 311 of 1929), Ark. Stat. Ann. § 12-113 (Repl. 1956), which provided “when a person elected to an office (and) shall by reason of death, or for any other cause, fail to qualify, the office shall be deemed vacant and shall be filled as provided by the Constitution and statutes of the State.” In Campbell we held this statute unconstitutional as in conflict with Art. 19, § 5, supra. We concluded the Campbell opinion as follows:

“Under the facts in the case at bar we hold that there was no vacancy in the office of Pulaski County Judge on January 1, 1967; that the power of appointment prescribed in Ark. Stat. Ann. § 12-113 is therefore not applicable in such a situation; and that Arch Campbell is authorized to hold the office until his successor is elected and qualified, as prescribed by Art. 19, § 5, of the Constitution. We are further of the opinion that this Constitutional provision contemplates the filling of the new term by election. The phrase, 'until their successors are elected and qualified,’ is susceptible to no other reasonable implication but that the office be filled by a vote of the people. There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.”[]

Our decision in Justice v. Campbell did not end the controversy. After we held in that case that there was no vacancy in the office and that Campbell would hold over until a successor would be elected and qualified, the Governor by executive proclamation called a special election to fill the office. The validity of the special election reached this court through a taxpayer’s suit in the case of McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954. The appellant in McCoy attempted to sustain the validity of the special election under the bare language of Art. 19, § 5, of the Constitution which simply says:

“All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”

The appellant’s sole contention in McCoy was that Art. 19, § 5, was self-executing and required no legislative implementation in order to fill the office at a special election. We pointed out in McCoy that Art. 19, § 5, was not self-executing for such purpose; that it only indicates a principle that a successor should be elected but lays down no rules concerning such election and affords no method or procedure by which the right to elect may be enjoyed or when such election should be held. We then quoted from Campbell “there are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.” We must keep in mind that in McCoy we were considering whether Art. 19, § 5, was self-executing for the purpose of filling a vacant office by election. The question was whether Art. 19, § 5, alone, contained the right to call a special election to fill a vacancy in a county office and we held that it did not.

The appellant argued in McCoy that without a special election an officer could be continued in office for an indefinite period simply by not providing for election of his successor. We rejected this argument by inferentially pointing out that we already have laws preventing such occurrence in these words:

“Let it first be said that the quoted argument is plainly erroneous, for failure of the Legislature to act will not continue the present Pulaski County Judge in office for an indefinite period of time— rather, the failure to act only continues him in office until the general election in November, 1968.”

Then quoting from Merwin v. Fussell, 93 Ark. 336, 124 S.W. 1021, where we quoted from McCrary on Elections, we said:

“ '* * * it must be conceded by all that time and place are the substance of every election,’ and that ‘it is, of course, essential to the validity of an election that it be held at the time and in the place provided by law.’ ”

Further reciting from Fussell we continued:

“ ‘The authority to hold an election at one time will not warrant an election at another time, and an election held at a time not fixed by the law itself will be void.’ ”

In McCoy we then continued:

“The matter is governed purely by statute, of course, because the system of elections followed in the United States was unknown to the common law.
Article 19, Section 5, of our Constitution does not specifically order an election, nor does it fix any time for holding such an election, and this being true, the language of our court in Simpson v. Teftler, 176 Ark. 1093, 5 S.W. 2d 350, is completely applicable:
‘The Legislature alone had authority to provide for an election, and any election held without authority is a nullity.’ ”

It must be remembered that in McCoy v. Story we were still dealing with the vacancy in the office of Pulaski County Judge in which we held in Justice v. Campbell that Campbell would continue in office after his term had expired and so hold until his successor should be duly elected and qualified. So we concluded the opinion in McCoy v. Story with this statement:

“Justice v. Campbell, supra, is here controlling. In that opinion, we stated that implementary legislation by the General Assembly was necessary; had we felt otherwise, we would simply have held that the Constitution directed that an election be held forthwith.”

It may be that this statement could be interpreted as an invitation, or suggestion to the Legislature, that new implementary legislation was in order to fill the vacancies in constitutional offices at special elections to be held between general elections, but such was not our intention. We did not say, nor did we intend to imply, in McCoy or in Campbell, that additional implementary legislation from what we already had was necessary to fill the vacancy in the-county judge’s office. In both instances a special election was attempted without authority. First, in Campbell, under a void statute, Ark. Stat. Ann. § 12-113 (Repl. 1956) and second, under Art. 19, § 5, argued to be entirely self-executing and permissive as to time and place for holding elections. We simply held in McCoy that Art. 19, § 5, did not designate the time or place for holding an election to fill such vacancies and that an election could not be held under that section of the Constitution without implementary legislation. We did not say in Campbell or in McCoy when the vacancies in the office of county judge should be filled by election, for that question was not presented to us. We did attempt in McCoy, however, to prevent a. misconstruction of our opinion in this connection by the insertion of footnotes which read as follows:

“Originally, Section 8 set the general election for the first Monday of September, but the General Assembly, under the authority of the amendment, changed the date of such elections to the Tuesday next after the first Monday in November, in every second year, and this applies to all elective state, county, and township officers ‘whose term of office is fixed by the Constitution or General Assembly at two (2) years.’
Amendment 29 provides that vacancies (except those occurring in the offices of Lieutenant Governor, members of the General Assembly, and Representatives in the Congress of the United States) shall be filled by appointment by the Governor. It will be observed that except for the offices enumerated in parenthesis, the people, in passing this amendment, set forth this manner of filling vacancies in constitutional offices, rather than by special elections.”

In Glover v. Henry, 231 Ark. 111, 328, S.W. 2d 382 (a case involving school board election recalls), we had occasion to mention Section 4 of Amendment 29 and there we said:

“. . . § 4 of Amendment 29 contemplates that the successors to the governor’s appointees will be elected at the general election and will take office on the following January first. The constitution has always provided that elective state, district, circuit, county, and township officers be elected at the general election, Schedule, § 3, and Art. 3, § 8; so Amendment 29 creates a workable plan for filling vacancies in these offices.”

We conclude, therefore, that Art. 7, § 46 of the Constitution requires that a county sheriff be elected for a term of two years; that Art. 3, § 8, provides that the general elections shall be held biennially, on the first Monday of September, with a reservation of legislative power to fix a different time; that by initiated measure in 1926, Ark. Stat. Ann. § 3-802 (Repl. 1956), the time for holding general elections was changed to Tuesday next after the first Monday in November in every second year; that Section 1 of Amendment 29 to the Constitution provides that vacancies in the office of all elective county offices shall be filled by the appointment of the Governor and that Section 4 of Amendment 29 provides that such appointee shall serve during the entire unexpired term in the office in which the‘vacancy occurs if such office would in the regular course be filled at the next general election if no vacancy had occurred. In any event, under the remaining contingencies set out in Section 4 of Amendment 29, the office is to be filled at a general election, and the person so elected is to take office on the first day of January following his election.

The appellants argue that the term of office to which Pate had been appointed expired on December 31, 1972, two days after his appointment and he was, therefore, a holdover into a new term of office not contemplated by Amendment 29 without new implementary legislation providing for the filling of such new term of office. Section 1 of Amendment 29 does not distinguish between old and new terms of office. It refers only to vacancies in office, and provides that such vacancies shall be filled by executive appointment regardless of when they occur (rather than special elections as was provided in Art. 7, § 50). Section 4 of Amendment 29 has only to do with how long an appointee shall serve in relation to filling the office at general elections and has nothing to say about appointments or special elections.

The Legislature has the constitutional authority to change the date of general elections; it has the constitutional authority to implement constitutional provisions calling for or requiring legislative implementation, but the Legislature does not have the constitutional authority to implement Amendment 29 by breathing new life into section 50 of Art. 7 which has been superseded by Amendment 29.

There is no question that Sheriff Pate is an “officer” within the meaning of Art. 19, § 5, of the Constitution, and there is no question that the official term of the office to which he was appointed expired two days after his appointment. Nevertheless, under section 5 of Art. 19, he may continue in office after the expiration of the official term until his successor is elected (at the next general election) and qualified. We do not pass upon whether Mr. Pate may be a candidate to succeed himself for that question is not before us.

The judgment is affirmed.

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

Carleton Harris, Chief Justice,

dissenting. My views in this case are very similar to those of the Attorney General expressed in oral argument before the court. I do not consider this litigation to be controlled by Amenment No. 29 to the Arkansas Constitution, but rather, to be controlled by Article 19, Section 5, of the Constitution. Had Tommy Smith died after he had taken office on January 1, 1973, instead of dying after being elected in November, 1972 (December 26, 1972), but before January 1, 1973, then I would agree that Amendment No. 29 controls. But our constitutional provisions must be read together and interpreted where all provisions can be given meaning, if at all possible to do so. Article 19, Section 5 of the Arkansas Constitution provides:

“OFFICERS — HOLDING OVER— All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”

The Office of Sheriff of Garland County became vacant, not in 1973, but in 1972, when the incumbent sheriff, Bud Canada, resigned from office on December 29. William D. Pate, under the authority of Amendment No. 29, was appointed on that same date by the Governor to fill the unexpired term. The Commission itself recites that Pate is appointed “for a term to expire 12/31/ 72.” When Pate was appointed, he became the incumbent in the office of sheriff and when his term expired at midnight on December 31, he became a hold-over (I believe that all parties agree to this) and further action was therefore controlled by Article 19, Section 5, which, as previously quoted, provides that a hold-over continues in office until his successor is elected and qualified. Our opinions in Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 and McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954 were founded and based upon Section 5 of Article 19. Both cases arose out of the same factual background.

We made it very clear in Justice that Amendment No. 29 did not apply. There, Arch Campbell was the incumbent judge, who did not seek re-election, and whose term in office would normally have expired on January 1, 1967. Tom Gulley was elected to the office at the General Election in November, 1966 for a two year term beginning January 1, 1967. Mr. Gulley died after the General Election but prior to the date he was to take office. Campbell then claimed the office by virtue of Article 19, Section 5. Robert O. Justice was appointed and commissioned by the Governor on January 1, 1967 (when Gulley would have taken office had he lived) and claimed the office on the basis of that appointment. After citing these facts, we then said:

“Another provision of the Constitution - Amendment 29, Section 1 (1938) - is brought into the case by appellant. That section is as follows: ‘Vacancies in the office of United States Senator and in all elective state, district, circuit, county, and township offices, except those of Lieutenant Governor, Member of the General Assembly, and Representative in the Congress of the United States, shall be filled by appointment by the Governor.’
“We find no conflict in these Constitutional provisions. At first blush, the wording in Amendment 29, ‘vacancies . . . shall be filled by . . . the Governor . . .,’ would seem to sustain the position of Robert O. Tustice. Any such impression has clearly been dispelled by the legal authorities immediately cited infra.”

We then cited several cases in support of this last sentence, including State v. Green and Rock, 206 Ark. 361, 175 S.W. 2d 575, where, referring to Amendment No. 29, this court said:

“The words Vacancies in the office of’ as there used refer to offices which on account of death, resignation, removal or abandonment of the previous holder thereof, or for some other cause, have in fact no incumbent.” (My emphasis).
Further,
“An incumbent of an office is one who is in present possession of an office; one who is legally authorized to discharge the duties of that office.”
Still further,
“Judge Campbell’s position is correct, and in conformity with the provisions of the Constitution of Arkansas. It is not difficult to harmonize the two sections cited, and it is our duty to give effect to both provisions. Our holding is further strengthened by the rule in a majority of the jurisdictions. Quoting from 74 A. L. R. 486:
‘II. Majority Rule, (a) Rule stated. In a majority of jurisdictions the rule obtains that the death or disability of an officer elect before qualifying does not create a vacancy in the office which may be filled by the appointing power, since he never occupied the office, and that under the provision that an incumbent shall hold his office until his successor is elected and qualified, the prior incumbent is entitled to continue in the office until the election and qualification of his successor.’
‘Summarizing, when Amendment 29, Section 1, directs that certain enumerated vacancies shall be filled by appointment by the Governor, it means that when an office holder in present possession of an office and legally authorized to discharge the duties of that office, dies, resigns, is removed, or abandons the office, a vacancy is created.”

Let us apply the language of the above opinion to the case at bar. Pate, though only serving a very short time as sheriff, was an incumbent hold-over sheriff on January 1, 1973 just as Arch Campbell was a holdover judge on January 1, 1967. Garland County thus had an incumbent sheriff, William D. Pate, on January 1, 1973. Very clearly, Justice v. Campbell, supra, says that this situation is controlled by Article 19, Section 5, and, as shown, we specifically stated that it was not controlled by Amendment No 29.

McCoy v. Story, supra, arose because of the Governor calling a special election to elect a county judge for Pulaski County. It was argued that the wording of Section 5, without further implementation, permitted such an election to be called. That was the sole issue in the litigation, but we said that the language of Section 5 only indicated a principle; that implementary legislation was necessary before an election could be held. We commented:

“Amendment 29 to our Constitution provides for the filling of vacancies, but here, of course, all parties agree that no vacancy exists, and appellant likewise agrees that there is no statutory provision for a special election under the circumstances here at issue.”

I reiterate, that in the instant litigation, there is no vacancy, and there has been no vacancy since December 29, 1972, such vacancy occuring in a previous term, being filled during a preceding term, and that appointee holding over into the present term.

Justice v. Campbell, supra and McCoy v. Story, supra, were both unaminous opinions by this court, and in each case we certainly suggested, and almost invited, the General Assembly to pass legislation implementary of Article 19, providing for a special election where incumbent office holders held over into another term of office. In Justice, the opinion concluded with these three sentences:

“We are further of the opinion that this Constitutional provision [Section 5 of Article 19] contemplates the filling of the new term by election. The phrase, ‘until their successors are elected and qualified,’ is susceptible to no other reasonable implication but that the office be filled by a vote of the people. There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.”

McCoy closes with the following paragraph:

“Justice v. Campbell, supra, is here controlling. In that opinion, we stated that implementary legislation by the General Assembly was necessary; had we felt otherwise, we would simply have held that the Constitution directed that an election be held forthwith.”

Undoubtedly, in compliance with our suggestions in those two cases, the General Assembly of 1969 passed Act No. 465, amending same in 1971 by Act No. 196. These acts are codified as Ark. Stat. § 3-106 (Supp. 1971) and provide:

“Whenever a person shall have been elected at a General Election to fill any elective county office and the person so elected shall, subsequent to the date of the General Election and prior to January 1 of the year in which such person is to take office, die or withdraw in writing, a Special Election to choose a person to assume said office may be held if petitions therefor, filed by not less than fifteen per cent (15%) of the qualified electors of the county, as determined by the total number of votes cast for all candidates for the Office of Governor in the next preceding General Election, shall be filed with the Governor within fifteen (15) days from the date of such death or written withdrawal from said office. Upon receipt of such petitions, the Governor shall call a special election to elect a person to fill such vacant county office.”

The statute then provides that the incumbent holding such office (in this instance, Pate) shall serve until such time as the results of the special election are certified and the newly elected official takes the oath of office and qualifies.

In my view, this legislation was entirely valid, and it follows that I view the Governor’s call for a special election in Garland County to be legal and proper.

The holding of the majority permits an appointee to hold the office to which he is appointed for more than one term, which, in my opinion, is entirely contrary to the desire and intent of both the people of this state and the General Assembly.

I would reverse the judgment of the Garland County Circuit Court.

Brown and Fogleman, JJ., join in this dissent.

John A. Fogleman, Justice,

dissenting. I concur in all respects in the dissenting opinion of the Chief Justice. While I feel that his opinion fully covers the question involved, I am constrained to comment upon the use of Section. 4 of Amendment 29 of the Arkansas Constitution by the majority as a stepping-stone toward its declaration that the act under which the Governor called the election was unconstitutional. I do not find any basis for holding Act 196 of 1971 [Ark. Stat. Ann. § 3-106 (Suppl. 1971)] unconstitutional and certainly none in Section 4, Amendment 29.

In considering the question of constitutionality, it must always be remembered that the General Assembly, as the supreme lawmaking body of our state, possesses all legislative powers not expressly, or by necessary implication, prohibited by our constitution. State v. Ashley, 1 Ark. 513; Straub v. Gordon, 27 Ark. 625; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S.W. 590; St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938; Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S.W. 251; McClure v. Topf and Wright, 112 Ark. 342, 166 S.W. 174; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9; Cook v. Walters Dry Goods Co., 212 Ark. 485, 206 S.W. 2d 742; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. Its power to legislate in fields not prohibited to it is absolute and any doubt about the constitutionality of an act passed by it must be resolved in favor of its validity. Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534. An act must be plainly at variance with the constitution before it is held unconstitutional by the courts. McClure v. Topf and Wright, supra; Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Eason v. State, 11 Ark. 481; State v. Ashley, supra.

I submit that this act is not at variance with the Arkansas Constitution, but is wholly compatible with it, insofar as this case is concerned. Article 7, Section 46, provides that the qualified electors of a county shall elect a sheriff for a term of two years. General Elections are to be held biennially on a date fixed by the General Assembly. Article 3, Section 7. The constitution is presently totally silent on the subject of special elections. Yet we find many legislative provisions, in addition to Act 196 of 1971, touching upon special elections. The only suggested limitation on the legislative power in the matter of special elections is Amendment No. 29. The Governor is empowered by that amendment only to fill “vacancies in office.” A “vacancy in office” under that amendment exists only when there is no incumbent, due to death, resignation, removal or abandonment of the previous holder, or some other cause. State v. Green and Rock, 206 Ark. 361, 175 S.W. 2d 575. A vacancy existed when Sheriff Canada resigned. The Governor was authorized to fill the vacancy, as he did, but only for the unexpired term ending December 31, 1972. Sections 1 and 4, Amendment 29. That limitation on the appointing power is express. It was regarded by the Governor in the commission issued.

A reading of Amendment 29 will show that it was the clear intention of the people to restrict the period of service of a gubernatorial appointee under this amendment so that he would not serve the full term of the office by appointment, whether it be 2, 4, 6 or 8 years.The provision “if such office would in regular course be filled at the next General Election if no vacancy had occurred” clearly relates to the filling of the office not the filling of the vacancy. The vacancy had nothing whatever to do with the time when the office would be filled. The office of sheriff of Garland County would have been filled at the next General Election even if the sheriff-elect had lived and taken office, or if .Sheriff Canada had not resigned. This amendment left the particular situation presented here open for legislative action, as there is no constitutional barrier whatever to the calling of a special election to prevent the full term of office being filled by a holdover or a gubernatorial appointee. Even if Article 7, Section 50, is superseded, or if it had been expressly repealed, I would still maintain that this act of the legislature is not unconstitutional as applied to the facts in this case. The legislature, I repeat, did not have to search the constitution for authority to act in the premises. Those who challenge its action must search it to find a prohibition. I submit that the search was unsuccessful and its fruits inconsequential.

In McCoy v. Storey, 243 Ark. 1, 417 S.W. 2d 954, we said that we could not, by interpretation, write the words “at a special election” into Article 19, Section 5, to provide for a successor to a holdover, but, as so ably pointed out by the Chief Justice, we strongly implied that the General Assembly was not limited in its power to so provide. Perhaps the construction given our decision in McCoy by the majority is based upon its erroneous premise that in McCoy we were dealing with a vacancy in office. We specifically said that we were not. See also, Justice v. Campbell, 241 Ark. 802, 410 S.W. 2d 601. Still the majority says that “in McCoy we were considering whether Article 19, Section 5, was self-executing for the purpose of filling a vacancy in office by election and in McCoy v. Story, we were still dealing with the vacancy in the office * * Insofar as the period to be served by the Governor’s appointee in this case is concerned, we are not, I reiterate, dealing with a vacancy in office, but with a holdover incumbent. In McCoy and Justice, we were not dealing with a vacancy in office, but with a holdover incumbent.

It also seems to me that in the attempt to utilize Section 4 of Amendment 29, the majority has been guilty of a glaring inconsistency. It contrues Section 1 as empowering the Governor to fill the vacancy in this case by appointment and then states: “The vacancy created by Senator Canada’s resignation occurred more than four months before the next general election so section 4 of Amendment 29 requires that the vacancy be filled at the next general election.” This inconsistency emphasizes the fallacy of the majority’s premise that we are dealing with a vacancy, even after it seemed to be conceded by everyone that the vacancy had been filled and that the Governor’s appointee was a holdover.

I further submit that the majority is not warranted in extracting two sentences of dictum from Glover v. Henry, 231 Ark. 111, 328 S.W. 2d 382, and reading them out of context in an effort to bolster its tenuous position. Even if these words were not dictum, and even if the context in which they were used did not serve to limit their effect, they do not say that the successors to the Governor’s appointees may only be elected in a General Election, and certainly do not imply that this is the case where the term of the Governor’s appointee has expired.

We said in Justice v. Campbell, 241 Ark. 802, 410 S.W. 2d 601, that we were of the opinion that Article 19, Section 5, contemplates the filling of the new term, where the incumbent is a holdover, by election, and that the words “until their successors are elected and qualified” are susceptible of no other reasonable implication but that the office be filled by a vote of the people. Nothing has persuaded me that these words were then inappropriate or that they are now inapplicable. We should adhere to them.

I am authorized to state that the Chief Justice and Mr. Justice Brown join in this dissent.

      Act 20 of 1877 was carried forward from Kirby’s Digest, § 7991, to Crawford & Moses Digest, § 10334, and then to Pope’s Digest, § 14334. It was not carried forward into Ark. Stat. Ann. (1947) but the digesters recognized that it had been superseded by Constitutional Amendment 29. This statute was repealed outright in 1953 as an obsolete and conflicting section of the statutes. Act 62, 1953.

      The Governor had precedent for this procedure. See Cobb v. Hammock, 82 Ark. 584, 102 S.W. 382.

      We might well have added “but this is not one of them.”

      Because Judge Campbell, as an incumbent, was holding over.

      To this extent, I do not agree that it is abundantly clear that Amendment 29 completely eliminated and superseded Article 7, Section 50. (See Compiler’s note Supp. 1971; Laster v. Pruniski, 228 Ark. 132, 306 S.W. 2d 123.) It is our duty to so harmonize the various provisions of, and amendments to, our constitution to give effect to all, if it is possible to do so. Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002; State v. Donaghey, 106 Ark. 56, 152 S.W. 746; Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269. Repeal of constitutional provisions by implication is not favored, and the legal presumption is against such a repeal. Faubus v. Miles, 237 Ark. 957, 377 S.W. 2d 601; Ferrell v. Keel, supra. Before one constitutional provision can be said to be abrogated by another, there must be an irreconcilable conflict between the two. Ferrell v. Keel, supra. I do not find this conflict to exist, except as to some provisions of Article 7, Section 50, not material here. The two provisions can be read together so that Article 7, Section 50, is only partially superseded.


author: Conley Byrd, Justice.

text:
    Dorothy BESHARSE v. CITY of BLYTHEVILLE, Arkansas
    73-36
    493 S.W. 2d 708
    Opinion delivered April 30, 1973
    [Rehearing denied May 25, 1973.]

      Jake Brick and Oscar Fendler, for appellant.

      Bill Rose and Gardner & Steinsiek, for appellee.
   Conley Byrd, Justice.

Upon petition of appellee City of Blytheville, Arkansas, a writ of mandamus was issued directing appellant Dorothy Besharse, the city clerk, to comply with ordinances No. 869 and 870 of the City of Blytheville. For reversal she contends: that the ordinances are illegal, unlawful and without legal effect; that the city had an otherwise adequate remedy; and that in the exercise of its discretion the trial court should have denied the petition for mandamus.

One of the ordinances creates the office of “Finance Director” to be in charge of the city’s financial affairs and provided the city’s moneys should be paid out upon the signature of the “Finance Director” and the Mayor. Appellant who had been in charge of the city’s finances was directed by the other ordinances to turn over to the “Finance Director” bank accounts, bookkeeping records, etc., used in connection with such duties.

We can find nothing in Sections 3 and 4 of Article 12 of our Constitution that would prohibit the General Assembly from permitting cities and towns to handle their finances as the appellee here proposes to do.

We find nothing in ordinances 869 & 870 contrary to the general laws of the state. Appellant relies upon several sections of Act 1 of 1875, as placing the duties of financial management upon the clerk. We do not necessarily agree with appellant’s interpretation thereof but any doubt as to the right of the City of Blytheville to legislate on the matter is removed by Acts 1971, No. 266 which provides:

“Section 1. Any city of the first class is hereby authorized to perform any function and full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs including but not limited to the power to tax.”

Neither does appellant have a vested right to prevent the city from changing the duties imposed upon her through its legislative processes. See Hunter State Bank v. Mills, 90 Ark. 10, 117 S.W. 760 (1909).

Appellant also contends that by virtue of some outstanding bonds the city is prevented from moving the financial affairs from her office. On this issue, we find that she as city clerk has no standing to complain.

It thus appearing that the transfer of the funds, books and bookkeeping machinery involved only a ministerial function, the writ of mandamus was properly issued. See Ghent v. State Use School Districts, 189 Ark. 747, 75 S.W. 2d 67 (1934).

Affirmed.


text:
    Earnest SMITH et al v. Van Parks GILES et al
    73-6
    494 S.W. 2d 108
    Opinion delivered April 30, 1973
    [Rehearing denied June 4, 1973.]

      Mays & Landers, for appellant.

      Shackleford ir Shackleford, for appellees.
   Conley Byrd, Justice.

Involved here is the construction of the will of Vera Murphy which provides:

“...This bequest of the five acres to my niece, Ruby Marie Giles, is to be for her lifetime, to use in any way she may see fit, but not to sell or dispose of the same, and the remainder shall go to her heirs...”

The trial court ruled that Ruby Marie Giles took only a life estate. Appellants Mr. 8c Mrs. Earnest Smith as purchasers from Ruby Marie Giles contend that under the rule in Shelley’s Case, Ruby Marie Giles took the fee. Appellees Van Parks Giles and Rosemary Downs, the children and heirs at law of Ruby Marie Giles contend the Rule in Shelley’s Case is not applicable because of the restraint against alienation of the life estate and because the term “heirs” is used in its non-technical sense. We agree with the appellants.

The rule in Shelley’s Case is a rule of property and not a rule of construction. The history and reasons for its application are set forth in Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893). It was pointed out that whenever there is a limitation to a man which, if it stood alone, would convey to him a particular estate of freehold, followed by a limitation to his heirs (or equivalent expressions), either immediately, or after the interposition of one or more particular estates, the apparent gift to the heirs, according to the rule in Shelley’s Case, is to be construed as a limitation of the estate of the ancestor, and not as a gift to his heirs. The theory was that, in cases which come within the rule, the heirs take by descent from the ancestor, and they cannot do so unless the whole estate is united and vests as an executed estate of inheritance in the ancestor.

In discussing the scope and extent of the rule in the Hardage case, we quoted approvingly from Doebler’s Appeal, 64 Pa. St 9, as follows:

“...The rule in Shelley’s Case is never a means of discovering the intention. It is applicable only after that has been discovered. It is then an unbending rule of law, originally springing from the principle of the feudal system, and though the original reason of it, the preservation of the rights of the lord to his relief, primer seisin, wardship and marriage, has passed away, it is still maintained as a part of the system of real property which is based on feudalism and as a rule of policy. It declares inexorably that where the ancestor takes a preceding freehold by the same instrument, a remainder shall not be limited to the heirs, qua heirs, as purchasers. If given as an immediate remainder after the freehold, it shall vest as an executed estate of inheritance in the ancestor; if immediately after some other interposed estate, then it shall vest in him as a remainder. Wherever this is so, it is not possible for the testator to prevent this legal consequence by any declaration, no matter how plain, of a contrary intention. That is a subordinate intent which is inconsistent with, and must therefore be sacrificed to, the paramount one. Even if he expressly provides that the rule shall not apply — that the ancestor shall be tenant for life only and impeachable for waste — if he interpose an estate in trustees to support contingent remainders — or, as in this will, declare in so many words that ‘he shall in nowise sell or alienate, as it is intended that he shall have a life interest only,’ it will be all ineffectual to prevent the operation of the rule. ...”

We find this language to be controlling of the issues here presented.

The cases of Letzkus v. Nothwang, 170 Ark. 403, 279 S.W. 1006 (1926) and First National Bank of Ft. Smith v. Marre, 183 Ark. 699, 38 S.W. 2d 14 (1931), have held restraints on alienation similar to that here involved, unenforceable and void for repugnancy.

We find no merit to the contention that the term “heirs” is used in its non-technical sense to mean children. See Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912).

Reversed and remanded.


author: Frank Holt, Justice.

text:
    SOUTHWESTERN UNDERWRITERS INSURANCE COMPANY v. Mark P. MILLER
    5-6244
    493 S.W. 2d 432
    Opinion delivered April 30, 1973
    [Rehearing denied June 4, 1973.]

      Ball, Gallman ir Martin, for appellant.

      Shelby R. Blackmon and, of Counsel, James R. Pate, for appellee.
   Frank Holt, Justice.

This appeal stems from a judgment adverse to the insurer appellant under an uninsured motorist provision in its automobile policy issued to the insured appellee. The appellee was injured in a collision involving a car operated by Evins Cogshell and owned by Ethel Norrell. Cogshell and Norrell were named as co-defendants with the appellant. The appellant admitted the accident and coverage of the appellee’s automobile but denied liability under the uninsured motorist provision. Cogshell and Norrell filed a general denial and failed to appear at the trial. The jury, in response to interrogatories, found that Cogshell was driving an uninsured automobile at the time of the accident and assessed damages of $10,000 plus interest, penalty, attorney fees and costs in favor of the insured appellee and against Cogshell and the appellant insurer. Cogshell does not appeal.

For reversal the appellant first contends the “lower court erred in admitting testimony of the appellee concerning a conversation between the appellee and the driver [Cogshell] of the allegedly uninsured vehicle.” We quote from the pertinent part of the transcript:

“Q. Now, Rev. Miller, this is what’s called an uninsured motorist case. Did this fellow, Cogshell, that you had the collision with, did he have any insurance?
MR. MARTIN:
Objection.
THE COURT:
You are objecting, are you, Mr. Martin? On what grounds?
MR. MARTIN:
I don’t think he’s laid any foundation for the basis of this man’s knowledge.
THE COURT:
You will have to establish that he has reason to know whether or not Mr. Cogshell had insurance, I suppose, Mr. Blackmon.
Q. Did you have occasion to talk to Cogshell about his insurance?
A. Imediately after the accident, I asked him if he had any insurance.
Q. What did he tell you?
MR. MARTIN:
Objection.
THE COURT:
He may answer this, this is the defendant himself responding and inasmuch as the insurance company is involved in this lawsuit by virtue of the uninsured motorist provision, it stands in the same shoes as the insured. I think he could make the declarations, in other words, as against the interests of the insurance company. The objection will be overruled.
Q. What did he tell you?
A. He told me that it was his mother’s car, that they had just bought it. That he had insurance to fix my car up and said, ‘You’ve got insurance to fix my car up if you say you’ve got insurance.’ So, I asked them where they bought the car and he told me at Twin City Motors and I called them on the telephone and said, ‘I remember selling the car but we didn’t sell him any kind of insurance.’ I went back and talked to him and he said. . .
MR. MARTIN:
Objection.
THE COURT:
You can’t testify what the man at Twin City Motors may have told you, that is hearsay, they are not parties to this lawsuit. That part of the testimony of this witness will be disregarded by the members of the jury.
Q. You made inquiry about his insurance, did you not?
A. Yes, sir.
Q. Did you talk to Cogshell again about his insurance?
A. I talked to him right after I talked to the other people.
Q. And what did he. . .
A. He said he didn’t have any.
MR. MARTIN:
Same objection, your Honor.
THE COURT:
Cogshell may make statements against his interest and against the insurance, uninsured motorist carrier. That will be admissible.
MR. MARTIN:
I don’t mean to be interrupting, but I’d like to make my record.
THE COURT:
Quite all right.
Q. Do you feel that you made a reasonable effort to determine whether Cogshell had insurance or not?
A. Yes, sir, he said he didn’t, that’s all I know.”

Appellee does not deny the hearsay character of the testimony as alleged by the appellant but simply responds that the appellant didn’t make a proper objection, i.e., the objections were insufficient inasmuch as a specific basis was not presented. We think the objections were sufficient when we review the pertinent portion of the transcript from which we have quoted extensively.

The function of an objection is to bring to the court’s attention the matter complained of for an appropriate ruling, to warn the adverse party, and to lay a foundation for an exception to an adverse ruling. Rinke v. Shackleford, 248 Ark. 941, 455 S.W. 2d 83 (1970). In the case at bar, it is obvious that the court was well aware that the matter complained of was hearsay as indicated by the court’s use of the language: “declarations, in other words, as against the interests of the insurance company”; “hearsay” and “statements against his interest and against the insurance, uninsured motorist carrier”. Also, the court, in effect, instructed the appellee to establish a proper foundation for his testimony. Also, it is apparent that the objections sufficiently warned the adverse appellee. Furthermore, we have held as sufficient objections which indicate, as in the instant case, that the evidence sought to be introduced was not admissible without a proper foundation or identification other than the plaintiff’s bare statement. Home Mutual Fire Ins. Co. v.Hagar, 242 Ark. 693, 415 S.W. 2d 65 (1967). The admissibility of evidence as being within one of the exceptions to the hearsay rule is discussed in Wilkins v. Enterprise TV, Inc., 231 Ark. 958, 333 S.W. 2d 718 (1960) and Home Insurance Co. v. Allied Telephone Co., 246 Ark. 1095, 442 S.W. 2d 211 (1969).

By interrogatory the issue was presented to the jury as to whether Cogshell was the driver of an uninsured vehicle. Appellee had the burden of proof to establish this issue by competent and substantial evidence. South. Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W. 2d 280 (1968); also see 26 ALR3d 892. In the case at bar appellee has not met that burden. In fact, Cog-shell (the declarant), driver of the allegedly uninsured vehicle, merely stated that he, himself, did not have insurance coverage. There is no evidence the vehicle was uninsured.

Appellant also argues that the judgment should be reversed and dismissed contending that the lower court erred in refusing to direct a verdict in its favor. We cannot agree. “[Q]ur ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where there can be no recovery that we consider it proper to dismiss the cause.” Hayes Bros. Flooring Co. v. Carter, Adm’x., 240 Ark. 522, 401 S.W. 2d 6 (1966). In the case at bar, even though the evidence is deficient as to appellant’s liability, “we think simple justice would require this cause to be remanded, for it is undisputed that [Miller] paid for the coverage***.” South. Farm Bur. Cas. Ins. v. Gottsponer, supra. Also, “there is no reason why the cause cannot be fully developed on retrial”.

Reversed and Remanded.

Jones, J., not participating.


author: George Rose Smith, Justice.

text:
    G. R. PALMER et al v. Dale CLINE, Director, Aekansas Department of Labor et al
    73-4
    494 S.W. 2d 112
    Opinion delivered May 7, 1973

      Hale, Hale, Fincher if Hoof man, P. A., for appellants.

      Herrn Northcutt, for appellees.
   George Rose Smith, Justice.

This case presents a jurisdictional issue under the Employment Security Act. The appellants filed a petition in the Pulaski Chancery Court to review the appellees’ action in assessing delinquent contributions against the appellants in the sum of $42.80. The appellees demurred to the petition on the ground that the chancery court was without jurisdiction. This appeal is from an order sustaining the demurrer and dismissing the petition.

The petition is brief. It identifies the petitioners as the owners of Palmer’s Boutique and the respondents as the Director of the Department of Labor and the Administrator of the Employment Security Division of that department. After reciting the respondents’ assessment of delinquent contributions against the petitioners, the petition goes on to state: “Petitioners are not ‘employers’ as defined by Arkansas law and are therefore not liable for any contributions required by the state Employment Security Act, and the action of Respondents in filing the Certificate of Assessment is unlawful.” The petitioners pray that the respondents be restrained from collecting the assessment during the pendency of the suit and that the court determine whether petitioners are “employers” subject to the Employment Security Act.

The dispute turns upon which of two sections of the Act is controlling. The petitioners insist that their remedy is to be found in that section of the statute which provides for a review in the chancery court. Ark. Stat. Ann. § 81-1117 (e) (Repl. 1960). The respondents contend that the petitioners should have proceeded under a different section, which provides for an appeal either to the Board, of Review or to the Pulaski Circuit Court. Section 81-1114 (b, 2).

We agree with the respondents. The petitioners’ pleading asserts a right to relief upon one ground only, that the petitioners are not employers within the purview of the Act. Such a dispute, however, must arise under Section 81-1114 (b, 2), which provides that the Commissioner may, “upon his own motion, or upon application of an employing unit, . . . make findings of fact and on the basis thereof, determinations whether an employing unit constitutes an employer.” If the employing unit disagrees with the Commissioner’s determination, the section provides for an appeal to the Board of Review or to the Pulaski Circuit Court. That, in our opinion, was the petitioners’ proper remedy in the case at bar.

The petitioners are mistaken in their reliance upon Section 81-1117 (e). That section has nothing to do with the determination of whether an employing unit is an employer. Instead, it is concerned with the Administrator’s determination of the amount of contributions, interest, and penalties. The section presupposes that the complaining party is an employer. In fact, the sentence providing for a review in chancery so states: “An aggrieved, employer [our italics] may have a review of the action of the Administrator ...” The petitioners’ denial of their status as employers takes their dispute out of the scope of Section 81-1117 (e).

Despite the distinction between the two remedies provided by the statute, the petitioners earnestly insist that they are entitled to an equitable remedy, for the reason that the Commissioner’s determination of the petitioners’ status as employers was made without compliance with the statutory requirement that the employing unit be given notice and an opportunity to be heard. Section 81-1114 (b, 2). It is argued that compliance with the requirement of notice and a hearing is a constitutional prerequisite to the petitioners’ being confined to the circuit court review now insisted upon by the appellees.

We cannot reach the merits of the petitioners’ argument, because the point is not properly raised. There is no assertion in the petitioners’ brief pleading that the respondents failed to give the petitioners notice and an opportunity to be heard. There is no assertion of any constitutional issue, such as a denial of due process or the imposition of an illegal exaction. A demurrer does not admit any facts that are not well pleaded. Caldwell v. St. Louis Joint Stock Land Bank, 187 Ark. 832, 62 S.W. 2d 39 (1933). It is presumed that required official acts have been duly performed, until the contrary is shown. Haynes v. Butler, 30 Ark. 69 (1875). It is presumed, in the absence of a showing to the contrary, that all necessary steps have been taken by the officer. West Twelfth St. Imp. Dist. No. 30 v. Kinstley, 188 Ark. 77, 63 S.W. 2d 980 (1933). We must determine the issues upon the record that was made in the trial court. The facts essential to the question now argued were not pleaded in the court below and therefore cannot serve as the basis for a decision in this court.

Affirmed.


author: Lyle Brown, Justice.

text:
    HOME INSURANCE COMPANY, Ed LOLLIS, J. L. WARD v. Carroll P. WILLIAMS, Individually and as Father and Next Friend of Bruce WILLIAMS, A Minor, and Gene DARTER
    73-14
    494 S.W. 2d 110
    Opinion delivered May 7, 1973

      Griffin Smith, for appellants.

      Gordon, Gordon ir Eddy, for appellees.

      Cocknll, Laser, McGehee, Sharp ir Boswell, for appellee Darter.
   Lyle Brown, Justice.

This is a second appeal, the first appeal having resulted in a remand. Home Insurance Company v. Williams, 252 Ark. 1012, 482 S.W. 2d 626 (1972).

Appellee Carroll P. Williams, for himself and as next friend for his son, originally sued Home Insurance alleging that he was entitled to benefits of the uninsured motorists’ coverage in a policy issued to him by Home Insurance. The accident occurred while appellant J. L. Ward, who with appellant Ed Lollis, operated a service station at Morrilton, was operating a car owned by appellee Gene Darter, on which Ward had mounted four new tires. Ward was in the process of delivering the car to Mrs. Darter and struck the Williams boy who was a pedestrian. The car had been delivered to Ward-Lollis by Mrs. Darter with instructions to deliver it to her place of employment. The case proceeded against Home Insurance, Ward-Lollis, and Gene Darter. The latter named parties were brought into the case by Home Insurance as third party defendants. At the close of all the testimony the court directed a verdict in favor of Gene Darter, holding that the driver, Ward, was acting as bailee rather than as agent for the owner, Darter. Other factual details will be recited as the points for reversal are developed.

The principal point for reversal is that the court erred in instructing a verdict for Gene Darter, insisting that whether the driver, Ward, was bailee or agent of Darter, was a question of fact which addressed itself to the jury. The facts are fairly undisputed. Mrs. Darter took the family car to Ward-Lollis’ garage and station and asked that they mount four new tires which had been purchased at a tire store. Ward-Lollis agreed to mount the tires, for which of course they made a charge. WardLollis further agreed to deliver the car to Mrs. Darter’s place of employment. James Ward testified that it was customary to deliver customer cars (without charge) only if a request was made.

On the basis of our precedents we do not think the facts made a case on the borrowed servant theory. We have two cases which are fairly well in point. Andrews v. Bloom, 181 Ark. 1061, 29 S.W. 2d 284 (1930); Reynolds v. Bounds, 238 Ark. 610, 383 S.W. 2d 496 (1964).

In Andrews the wife of appellant called the garage and advised that she wanted her car serviced. At her request, Ragsdale, the garage owner, sent two of his employees for the car and while driving it to the garage by direct route a collision occurred. It was pointed out that Ragsdale sent his employees for customer cars when requested; that he did it as an accommodation to the owner; and that he made no extra charge therefor. In the described situation this court held that the driver of the car was acting as bailee of Andrews as opposed to the contention that the driver was the servant of Andrews.

The undisputed facts relating to the point before us are brief in Reynolds. Gordon Smith was an employee of appellants Reynolds & Williams Construction Company on a job near El Dorado. Smith drove a company truck into a service station in El Dorado to arrange for servicing. At Smith’s request one of the service station attendants drove with Smith several miles to near the job site. There the truck was turned over to the service station employee. On the return trip to the filling station the truck collided with a car belonging to appellees Bounds and wife. Judgment was obtained against Reynolds & Williams. The construction company appealed on the ground that the trial court erred in not directing a verdict in their favor. We sustained Reynolds 8c Williams’ position. In that case we quoted with approval the general rule stated in 35 ALR 2d 804:

In the great majority of cases involving negligent operation of a car by service personnel in connection with the work for which it has been placed in their custody, the courts have held that the owner is not liable.
This result is generally reached on the theory that the service establishment becomes the bailee of the car as an independent contractor, since the owner is concerned only with the results of the work and not with the detailed manner in which it is carried out.

We hold that the two cited cases are controlling and that within the orbit of the particular facts in the case at bar, Darter, the car owner, was entitled to an instructed verdict.

Appellants make this concession in their brief: “True, had it been delivered back to the residence of the owner, the bailment would well have continued and no agency arises. . .” Appellants base their argument on the fact that the car was delivered to Mrs. Darter’s place of employment. We simply are unable to agree that the delivery of the car to the wife’s place of employment is so significant as to alter the applicable rule of law.

Appellants contend that the verdict for $10,000 which was for pain and suffering alone, is excessive. We would agree that it is liberal but we are unable to say it is excessive. The young man received a transverse fracture two inches above the knee; the doctor said such an injury is severely painful; a metal pin was driven through the bone and traction was applied; narcotics were administered for a number of days; the patient was on his back continuously for the first.four weeks; after the healing period he was placed in a cast from his chest to his toes for an additional six weeks; the doctor said the healing period involved soreness and tenderness of the tissues and joints; the doctor and hospital bills were very substantial; and the patient was forced to miss three months of school. The latter two items do not reveal pain and suffering of themselves, but they do bear out the contention that the trauma was major in nature.

The final contention is that the attorney’s fee of $4000 is excessive. We think that a fee of $2000 is adequate, and we so modify. In all other respects, including of course the statutory penalty, the judgment is affirmed.

Affirmed as modified.

Byrd, J., dissenting in part, would fix the attorney’s fee at $1000.


author: John A. Fogleman, Justice.

text:
    Joanne G. PYLE v. Jerry D. PYLE, George PYLE and Ruby PYLE
    73-19
    494 S.W. 2d 117
    Opinion delivered May 7, 1973
    [As amended May 24, 1973.]

      Sam Goodkin, for appellant.

      No brief for appellees.

   John A. Fogleman, Justice.

Appellant seeks reinstatement of an order defining visitation privileges rendered May 18, 1972, which implemented a custody and visitation award rendered November 24, 1971, which, in turn, resulted from a divorce granted appellee Jerry D. Pyle on July 29, 1965. Appellant alleges three points for reversal, which are:

I. The Trial Court was without jurisdiction to set aside or modify the decree of November 24, 1971, and the same is res judicata and should be enforced. Arkansas Statutes Sections 22-406.3, et seq.
II. Appellees have not come into Court with clean hands; they are estopped from attacking the decree of November 24, 1971, and should be held in contempt of court and required to pay appellant proper damages, including an attorney’s fee.
III. In any event, the order appealed from is too harsh and unreasonable.

Since we find reversible error in point I., and the contempt portion of point II. is premature, we will not discuss the clean hands or estoppel portion of point II. or point III. Joanne Pyle, the appellant, is a resident of Utah and is the mother of Deborah Pyle and Shirley Pyle, ages 11 and 9. Jerry D. Pyle, the father, George and Ruby Pyle the paternal grandparents of the two children, all residing in Fort Smith, are the appellees. The original Arkansas custody and visitation decree implemented a Utah decree and was rendered November 24, 1971. It awarded legal custody to the father with physical custody to the grandparents. The decree also granted visitation privileges to the appellant to be exercised in Utah for five calendar weeks in the summer of 1972, two calendar months each summer thereafter, and one week during the Christmas holidays each even numbered year. The implementation order of May 18, 1972, resulted from allegations that the children refused to go to Utah. This decree ordered the grandparents to present the children to the mother at a mutually agreeable time in Fort Smith to carry out the prior order, and commanded the sheriff to physically deliver the children to the appellant should the children refuse to go to Utah. A similar order was entered May 25, 1972, which enjoined the appellees from, in any way, interfering with the taking of the children by the mother.

The order from which this appeal comes was rendered upon a petition by the appellees filed July 3, 1972, seeking a modification of the visitation privileges so that the young girls would not be required to travel to Utah. The allegations of change in circumstances to justify modification were that the children “have become continually more distressed and concerned” and “are vigorously opposed to being forced to visit defendant, at least to the extent of being required to travel across the United States * * Pending disposition of this petition, an order was entered July 14, 1972, commanding the sheriff to pick up the children on July 15, 1972, and deliver them to appellant. This he was unable to do, allegedly because of the action of the appellees in removing the children from the Fort Smith area. However, on July 17, 1972, another temporary order was entered which held for naught the prior custody and visitation decrees of November 24, 1971, May 18 and 25, 1972, and enjoined the sheriff from aiding the appellant in picking up the children.

A hearing was held on July 19, 1972. The testimony principally went to the refusal of the children to visit in Utah, and their changed feelings. There was testimony that the girls’ refusal was due in part to the improper influence of the grandparents. Also, various witnesses gave conflicting testimony as to the harmful effect of residence away from the principal home in Fort Smith during the summer months. The chancellor then entered the order from which this appeal is taken, which modified all previous orders and materially changed the visitation privileges of the appellant.

As we read appellant’s first point for reversal, she is not contending that the Sebastian Chancery Court was without the judicial power to modify its prior decree, but that it improperly modified its prior decree since there was a failure by the appellees to show a change in circumstances which would warrant such extraordinary action. It is axiomatic that a trial court in custody proceedings retains jurisdiction of the cause and can modify a previous decree upon a showing of changed circumstances and in furtherance of the welfare of the child. Myers v. Myers, 207 Ark. 169, 179 S.W. 2d 865; Holt v. Taylor, 242 Ark. 292, 415 S.W. 2d 52. Appellees contended in the trial court that a change in the children’s desires with respect to traveling to Utah was sufficient in and of itself to constitute “changed circumstances.” Even if we were to recognize that such a condition constituted “changed circumstances” the appellees have failed to show by a preponderance of the evidence that such a change has in fact occurred. The testimony of the parties was conflicting, as was the testimony of a child psychologist consulted by Ruby Pyle. However, we find a visit to Utah made by one child subsequent to the decree, with no apparent ill effects, to be highly persuasive on the pertinent question. It appears that this visit was made without further order of the court, but an order of the court entered December 8, 1972, required that both girls visit with their mother in Utah for one-half of the Christmas vacation, thus, in effect, reinstating a portion of the prior decrees. The testimony of the child psychologist, that visits of the children with their mother in Utah would be quite beneficial to the children and that the chances that the younger child would be adversely affected were one in five that the older child would not be adversely affected, was also persuasive. Because of the factors recited, we find that the appellees did not show by a preponderance of the evidence that there were changed circumstances sufficient to justify modification of the earlier decree.

Appellant raises one other point which merits consideration. She would have us hold the appellees in contempt for violating the chancellor’s orders of May 18, May 25 and July 14, 1972, since they allegedly prevented the sheriff from delivering the children to her as ordered by the court. Since we have only the record before us, and no consideration was given to this phase of the case by the chancellor, it would be premature and improper for us to hold the appellees in contempt.

For the reasons stated, we reverse the order of July 19, 1972, reinstate the custody and implementation orders of November 24, 1971, and May 18 and 25, 1972, and remand the case for further proceedings not inconsistent with this opinion._

      The orders of November 24, 1971, May 18 and 25, 1972, July 14 and 19, 1972, were entered by three different chancellors.

      Other jurisdictions have recognized that a change in the child’s wishes as to custody is a factor to be considered by a court in modifying a prior custody award, along with,other considerations. See Allen v. Allen, 200 Ore. 678, 268 P. 2d 358 (1954); Graichen v. Graichen, 20 Wis. 2d 200, 121 N.W. 2d 737 (1963); Contra Stickler v. Stickler, 57 Ill. App. 2d 286, 206 N.E. 2d 720 (1965).