text:
    Ark. State Board of Pharmacy v. Fey.
    5-2730
    357 S. W. 2d 658
    Opinion delivered June 4, 1962.

      Warren & Bullion, for appellant.

      Bose, Meelc, House, Barron, Nash & Williamson, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant is a State Board created by statute and charged with the administration of the laws pertaining to the practice of pharmacy in this State. On July 13, 1961, the appellant brought an action in the Garland Chancery Court to enjoin the appellee, David L. Fey, from practicing pharmacy.

The appellee answered and the cause was presented to the Garland Chancery Court where the chancellor denied the plea for a restraining order against the appellee and from that action comes this appeal.

The appellant in this case denies that it issued a license to the appellee authorizing him to practice as a pharmacist and that the appellee has no legal right to practice without a valid license issued by the appellant Board; on the other hand, the appellee contends that the Board of Pharmacy did issue him a license to practice and presents a document which reads as follows:

“TO WHOM THIS MAY CONCERN:
THIS IS TO CERTIFY THAT THE ARKANSAS STATE BOARD OF PHARMACY IN SPECIAL SESSION DID ON MAY 17, 1961 APPROVE THE APPLICATION FOR LICENSURE AS A REGISTERED PHARMACIST UNDER THE PROVISIONS OF ACT 59 OF THE 1955 LEGISLATURE OF
DAVID LEONARD FEY
AND THAT CERTIFICATE OF LICENSURE WILL BE ISSUED TO THE SAID
D. L. FEY
WHEN ENGRAVED.
SIGNED
M
THOMAS E. MATTAX
SECRETARY”

The minutes of the appellant Board on which the certificate is predicated are as follows:

“May 17, 1961. D. L. Fey, who had been denied reciprocity to Arkansas from Tennessee, presented a reciprocity application and asked that it be considered for approval under Act 59 of 1955. With Mr. Fey’s application was an opinion from the Attorney General’s Office that if all the statements on the reciprocity application were proven true, Mr. Fey did qualify for registration under Act 59 of 1955, with the approval of the Board. A motion was made by Mr. Waddle, seconded by Mr. Peters, and passed unanimously that Mr. Fey be granted registration, subject to the review of his experience and residency qualification, and with the notation on the face of the Certificate that the registration was made under Act 59 of 1955. The Board went on record at this meeting to recommend to the next General Assembly of the Arkansas Legislature the repeal of Act 59 of 1955.”

At the hearing before the chancellor the appellant contended that the document exhibited by the appellee was intended only as a temporary license which would automatically expire at the next meeting of the Board.

No such limitation appears upon the certificate issued by the Board nor do we find any limitation in the action of the Board as reflected by its minutes.- The motion which was passed unanimously at the Board Meeting was that the appellee be granted registration subject to review of his experience and residency qualification and that the registration was made under Act 59 of the Acts of 1955. We do not view the words “that if all the statements on the reciprocity application were proven true” as being a limitation. That general statement would apply to any application that came before the Board and viewing the wording in any light, there was a certificate issued to the appellee which is not conditioned in any way, and, under the statute, so long as he is thus licensed he has the right to practice as a pharmacist and until that certificate is revoked, there is no limitation placed upon him.

If, as the appellant contends, there are disqualifying conditions that would have made the appellee ineligible for a certificate, his certificate nevertheless can be can-celled only in the manner provided by the statute. Being a creature of the Legislature, the Board has only those powers and rights which are specifically granted by the Legislature. Ark. Stat. § 72-1025 provides for the revocation of certificates obtained by false representation and reads as follows:

“If any person shall procure registration as a registered pharmacist under this act, by making, or causing to be made, false representations, the registration and certificate thus fraudulently obtained may, in the discretion of the board be revoked, and the name of the person so registered stricken from the register. Provided, That the person charged with the fraud be first allowed a hearing by the board. Act Mar. 13, 1891, No. 50, § 10, p. 80; C. ■& M. Dig., § 3676; Pope’s Dig., § 4612.”

And Ark. Stat. § 72-1028 pinpoints the procedure which the Board must follow in the revocation of a license :

'“Procedure for revocation by the board. — Before revoking the certificate of registration of any registered pharmacist, the Board of Pharmacy shall give such person ten [10] days notice in writing to appear before such board, at such time and place as the Board may direct, to show cause, if any he has, why his or her Certificate should not be revoked, said notice shall be signed by the Secretary of the State Board of Pharmacy and shall set forth in clear and concise language the nature of the charge against such person. Mailing a copy of such notice by registered mail, addressed to such person at his address appearing upon the records of the State Board of Pharmacy concerning the issuance of his certificate or the last renewal thereof shall be sufficient service of such notice. At such hearing, the Board shall have power to subpoena witnesses and the President or Chairman of said Board shall have power to administer oaths and such Board shall hear evidence. If the Board finds after such hearing that the certificate of registration or license of such person should be revoked, the same shall be done forthwith. [Acts 1939, No. 120, § 2, p. 278.”]

This statute is not only a grant of power to the Board, but it is also the grant of a right to the license holder. It is his guarantee of his day in court, it is the grant of a right by the Legislature and cannot be taken from him by the Board. He has a right to insist on the ten days notice of the Board Meeting at which the matter of the revocation of his certificate will be considered. He may be present and the testimony of witnesses will be taken and it is further provided in Ark. Stat. § 72-1029 that an appeal will lie from the action of the Board to the Circuit Court of the county in which the alleged offense was committed.

“Appeals from decisions of the board — Procedure.— Any person whose certificate of registration or license has been revoked by the State Board of Pharmacy as herein provided may appeal from the action of said Board to the Circuit Court of the County in which the offense was committed by filing with the Clerk of said Court within thirty [30] days from the order of the revocation, his affidavit to the effect that said appeal is not taken for the purpose of delay but that justice may be done him and by causing summons to be issued from said Court and served upon the Secretary of the State Board of Pharmacy. Such person appealing shall, at the time of filing his affidavit, give bond with security to be approved by said Clerk to cover the costs of said appeal and shall likewise cause to be prepared and filed with the Clerk of said Court'a transcript of the proceedings, including stenographic record of all evidence, at said hearing. When an appeal has been taken as aforesaid, the same shall stand for trial de novo upon the record thus presented at the next day of said Court inore than twenty [20] days after service of summons upon the Secretary of the State Board of Pharmacy as herein provided. Appeals from the judgment of the Circuit Court on such trial shall be taken and had in accordance with the rules of appellate procedure now or hereafter provided by the laws of this State with respect to appeals in civil causes. [Acts 1939, No. 120, § 3, p. 278.”]

The appellee has the right to practice pharmacy as long as he is the holder of the Board’s certificate and that certificate can be cancelled only by following the provisions of the statute just quoted. None of these statutes were followed and of that there is ample proof. This case involves the determination by the chancellor of a question of fact and we have so many times stated:

“On the fact question: we try the case de novo here; unless the preponderance of the evidence appears to be against the chancellor’s findings we must affirm. See Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686. Our rule also is ‘that the judgment of the chancellor on the question of the preponderance of the evidence will be considered as persuasive when the evidence is conflicting, and evenly poised, or nearly so. ’ City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750. Also see Brown v. Ozark Black Marble Go. et al., Ozark Black Marble Co. v. Stephenson, et ux, 222 Ark. 280, 258 S. W. 2d 882.” Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831.

The chancellor’s decision is supported by a preponderance of the evidence and that decision we do not disturb.

The cause is, accordingly, affirmed.

George Bose Smith, J., not participating.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Relaford v. Relaford.
    5-2741
    359 S. W. 2d 801
    Opinion delivered September 10, 1962.

      B. D. Bouse, for appellant.
    No brief filed for Appellee.
   Carleton Harris, Chief Justice.

This is a divorce action. Appellant, Mildred Lucille Relaford, instituted suit against appellee, James William Relaford, alleging general indignities. The husband answered, denying the allegations, and filed a cross-complaint alleging that “plaintiff became interested sexually in divers men * * * That plaintiff persists in her association with divers men. ’ ’ The parties are the parents of six minor children, and each sought custody of said children. On trial, the court held that neither party was entitled to a divorce, in that both “have been guilty of such indignities to the person of the other as to render either of them unable to come into court asking for relief with clean hands.” Custody of the six children was granted to appellant, and appellee was directed to contribute the sum of $10 per week toward the maintenance of the children. From the decree so entered, appellant brings this appeal.

Actually, the only question posed is whether appellant was entitled to a divorce. The parties were married in May, 1946, and lived in Nevada County before moving to Little Rock in October, 1959. They separated in June, 1960. According to appellant, appellee offered indignities almost from the commencement of the marriage. “Well, he was all the time talking about me to other men. I would go to town after things and he was all the time saying he didn’t know how much money I had when I left — I didn’t have any money when I left, but he didn’t know how much I’d come back with and on occasions he would tell them I would drink anything I could get my hands on, and then in one instance he told me I was tired of him and said 'You ought to try Fred, he may be the “coon-dog” you are looking for.’ ” This was a reference to Fred Virden, supposedly a friend to both parties. Mrs. Relaford testified that on occasions when some man would be in the house to spend the night, her husband would invite the visitor to sleep with her, and she mentioned a very vulgar statement made when the Relafords and Virden, on one occasion, were visiting the zoo. Appellant stated that her husband “made out like he was joking,” but she did not consider it very humorous. Mrs. Relaford testified that her husband did quite a bit of drinking. She stated that on an occasion, she visited the doctor for an examination. The doctor sent a bill for $11. According to her evidence: “He said I had a baby done away with — said no Doctor would charge $11.00 for an examination,” and he “harped” on the subject constantly. This accusation was the “final straw” that caused Mrs. Relaford to leave her husband, and return to Nevada County. She further testified that on an occasion when she, Virden, and her husband were at home, that appellee told Virden ‘ ‘ she had your baby done away with. ’ ’ This statement, along with several other accusations, was verified by Virden.

Mr. Relaford denied most of the testimony of his wife. As to the last mentioned accusation, after learning about the $11 doctor bill, Relaford stated that he did not say she had done away with a baby. “No, sir, I didn’t accuse her of it, I just said it was a good sign.” Obviously, this was, in effect, an admission of making the charge.

Twelve witnesses testified on behalf of appellant, and seven witnesses appeared for appellee. Without detailing the testimony, which would serve no useful purpose, suffice it to say that not a single witness testified to any illicit relationship between Mrs. Relaford and any man, nor to circumstances that would establish that such a relationship existed. The strongest testimony was that Virden, divorced from his wife, had often visited in the Relaford home, and that Mrs. Relaford at times laundered her clothes in the Virden home. As to the first, Virden frequently visited when Relaford was present, and according to appellee’s own evidence, was a close friend. Relaford likewise testified that Virden had endeavored to help him obtain a job, and had assisted in other ways. As to the laundry, Mrs. Relaford stated that her own washing machine was out of order, and that all children were present on each occasion when she went to the Virden home to use the washing machine; that at times, she did her ironing there at night in order for the children to watch television. In fact, the only evidence that suggests in any manner an improper relationship between Mrs. Relaford and any man was contained in the depositions of Paul M. Adams and C. D. Tomlin, both former employers of Relaford. That evidence consisted of answers to the following interrogatories:

(To Adams) “State whether or not James William Relaford, the defendant, exhibited to you several letters bearing the purportedly written name of Fred Virden of Prescott, Nevada County, Arkansas, as writer, to plaintiff, Mildred Lucille Relaford?
A. I saw the letters.
Q. If any such letters were presented to you, state whether or not the name of Fred Virden was affixed to the envelopes and/or as signature to said letters?
A. They were affixed to the envelopes as return addresses and he signed the letters by his first name.
Q. State whether or not you read all or any part of said letters?
A. I read all of them.
Q. State whether or not the contents of said letter or letters reflected any amorous statement or assertions by Fred Virden to Mildred Lucille Relaford?
A. Yes.”
(To Tomlin) “State whether or not James William Relaford, the defendant, exhibited to you several letters bearing the purportedly written name of Fred Virden of Prescott, Nevada County, Arkansas, as writer to plaintiff, Mildred Lucille Relaford?
A. One is all I read.
Q. If any such letters were presented to you, state whether or not the name of Fred Yirden was affixed to the envelopes and/or as signature to said letters?
A. They was.
Q. State whether or not you read all or any part of said letters ?
A. I read all of one.
Q. State whether or not the contents of said letter or letters reflected any amorous statement or assertions by Fred Yirden to Mildred Lucille Relaford?
A. They did.”

The letters were not exhibited (Relaford testified that he gave. them back to his wife); no questions were propounded as to contents of the letters; the witnesses could not state, of their own knowledge, that the letters came from Yirden, or bore his signature, nor was there any further effort to explain what was meant by ‘ ‘ amorous statement”. In any event, whatever was written, of course, was not written by Mrs. Relaford, and without further illumination of the contents of the letters, appellant cannot be held responsible for assertions or sentiments expressed by the writer. ' "

The testimony reveals that Mrs. Relaford was employed during the time the parties were living together, enabling a better living for the family, and that she worked hard after the separation to take care of the six children. During the marriage, she labored in the hay fields with other farm employees for Mr. Owen G-arrett, and hauled hay to Little Rock and Shreveport with Mr. Garrett. This was done, according to appellant’s testimony, at the request of her husband, and he admitted that he did not object to her doing this work.

This case was tried on August 7th, 1961, and Mr. Relaford stated that he had only given his wife $13 since January 1, 1961, for child support. In fact, according to the sheriff of Nevada County, Relaford had been tried and convicted in the Justice of the Peace court for non-support of the children. The evidence reflected that friends, including Virden, and members of the Christian and Methodist churches, helped in supporting the children. Mrs. Relaford was employed at the Prescott Manufacturing Company, earning $38.80 net per week.

Even though it should appear that Mrs. Relaford had engaged in improper conduct with some man, the evidence would indicate that these alleged offenses were condoned, since Mr. Relaford continued to live with his wife during, and after, the period of appellant’s alleged immoral behavior.

Be that as it may, the record falls far short of establishing adultery, or that his wife had become “interested sexually in divers men”. The charge of sexual promiscuity or infidelity is probably the most offensive charge one spouse can make against the other, and it has been frequently held that to make such a charge without basis is an indignity entitling the person charged to a divorce. As stated by the Court of Appeals of Kentucky in the case of Wiggins v. Wiggins, 104 S. W. 2d 1097:

‘ ‘It has been repeatedly held by us that the husband’s making of an unfounded charge of lascivious conduct against an innocent wife is in itself evidence of and constitutes cruel and inhuman treatment within the meaning of the statute, entitling the wife to divorce, except where the charge is made, not maliciously but in good faith, upon reasonable grounds for believing it, even though held untrue, (citing cases) Also, we have held that accusations in pleading of spouse as to improper conduct of the other spouse, where not supported by such evidence as to imply good faith, constitutes cruel and inhuman treatment where false and malicious. * * *
* ‘ Clearly, the testimony of the husband and his witnesses as to instances of alleged misconduct on the part of his wife, upon which he here based his charge that she was loose and lascivious in her behavior, was found to be altogether without substance or of the quality to induce conviction, and therefore, his baseless charge having only such support (which amounted to no support), it must needs have been made by him not in good faith but maliciously, and as such constituted, as set out supra, cruel and inhuman treatment within the meaning of the statute and entitled her, we conclude, to an absolute divorce and reversal of the judgment as erroneous, in so far as it failed to grant her such. ’ ’

Also, in Land v. Land (Kentucky), 132 S. W. 2d 742.

‘ ‘ Clearly the venomous character of defendant’s accusations and charges made against the chastity of his wife, when unsupported by any substantial and probative evidence, in itself constitutes cruél and inhuman treatment of her.”

Appellant’s charges, at the most, could have been based on no more than suspicion, and suspicion is not sufficient to justify one in maligning the character of his spouse, either by spoken charge, or by written pleading. Since the charge was unsupported by any substantial evidence, we consider it an indignity entitling appellant to an absolute divorce, and so hold. The awarding of the custody of the children to appellant, being indicative of the fact that the trial court found no substantial evidence of immorality on the part of the mother, is upheld.

"While the custody of the children is not at issue in this appeal, it is interesting to note that Mrs. Relaford demonstrated her interest in both the physical and spiritual welfare of the.children. The pastor of the First Christian Church in Prescott, along with his wife, the Mayor of Prescott, and a member of the City Council, all testified that the mother and children attended chnrch and Sunday school, and that the children were well behaved, polite, well supervised, and appeared to be happy.

The decree is reversed, insofar as it fails to grant appellant a divorce, and the cause is remanded with directions to enter a decree not inconsistent with this opinion.

       According to her testimony, he had only given the $13 since June, 1960.


author: Ed. F. McFaddin, Associate Justice.

text:
    Bland, Adm’r v. Belle Point Lodge No. 20.
    5-2731
    359 S. W. 2d 804
    Opinion delivered September 10, 1962.

      Luke Arnett, for appellant.

      Gean, Gean '& Gean, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question posed is whether the appellee is liable for contributions under the Arkansas Employment Security Act. The appellant is J. L. Bland, Administrator of the Employment Security Division of the Department of Labor of the State of Arkansas; and the appellee is Belle Point Lodge No. 20, which, on November 15,1848, received a charter as a subordinate lodge of the Most Worshipful Grand Lodge of Masons, which Grand Lodge was incorporated by act of the Arkansas Legislature on November 25,1848 (see page 136 of the 1846 Acts). The Belle Point Lodge is an unincorporated association and its proper officers are also appellees.

On February 3, 1961 the appellant Bland, acting in his official capacity and proceeding under § 81-1117 Ark. Stats., filed in the Office of the Circuit Clerk of Sebastian County a certificate of assessment against said Belle Point Lodge for delinquent contributions levied by the Arkansas Employment Security Act. On February 9, 1961, and pursuant to § 81-1117 (e) Ark. Stats., the Belle Point Lodge applied to. the Sebastian Chancery Court to review the said assessment. At the trial from which comes this appeal it was shown that Belle Point Lodge is a regular subordinate lodge and annually elects a secretary, to whom is paid a salary. For the past fourteen years this secretary has been, and still is, Cicero Lewis; and he is the only person in said lodge who receives any compensation. The reason for the assessment against the lodge was because of appellant’s contention that Cicero Lewis, as secretary of the Lodge, was an employee of the Lodge and, therefore, the Lodge was liable for unemployment compensation payments.

The Chancery Court held that the Belle Point Lodge was not liable for the tax; and from that holding, the appellant prosecutes a direct appeal, and appellee prosecutes a cross-appeal. A careful study convinces us that, the Chancery Decree should be reversed since under our statute the appellee is liable for the tax unless exempted, and the appellee is not within the provisions of any exemption. The applicable law, in Ark. Stats. § 81-1103, defines ‘ ‘ employing unit ’ ’ and ‘ ‘ employer ’ ’ as follows:

“81-1103 . . . (g) Employing unit. ‘Employingunit’ means any individual or type or organization . . . which has . . . one or more individuals performing services for it within this State.’’ (Italics our own.)
“81-1103 . . . (h) Employer. ‘Employer’ means: . . . for the calendar year 1942 and thereafter, any individual or employing unit which, for some portion of ten (10) or more days, . . . has ... in employment one or more individuals ...”

Therefore, it is clear that Belle Point Lodge — in employing Mr. Lewis as secretary — was an “employing unit” and an “employer” within our statute. The Federal statute, as contained in United States Code Annotated, Title 26, § 3306, defines an employer as one who has four or more individuals in the employment; but the State of Arkansas had the right and power to make its Act apply to the employer of only one individual.

Therefore, Belle Point Lodge was and is an employing unit and an employer within the applicable Arkansas statute and is liable for the tax unless it comes within one of the exemption provisions of the Arkansas statute. The burden of showing matters of exemption was upon Belle Point Lodge. See McKinley v. R. L. Payne & Son Lbr. Co., 200 Ark. 1114, 143 S. W. 2d 38. In Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S. W. 2d 1007, in speaking of exemptions from taxation, we quoted with approval from Cooley on Taxation, 4th ed., Vol. 2, p. 1403, § 672, as follows:

‘ ‘ ‘An intention on the part of the Legislature to grant an exemption from the taxing power of the State will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it is a well-settled principle that, when a special privilege or exemption is claimed under a statute, charter, or act of incorporation, it is to be construed strictly against the property owner and in favor of the pnhlic. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed, and cannot be made out by inference or implication, but must be beyond reasonable doubt. In other words, since taxation is the rule and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing is upon him who claims it. ’ ”

Ark. Stats. § 81-1103 (i) (6) lists the various exempted employments in alphabetical subdivisions “(A)” to “ (P) ” inclusive. The only language claimed to have any application, on either the direct appeal or cross-appeal in this case, is the paragraph lettered “ (O) ” which reads as follows:

‘ ‘ Service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual.
“Also any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under Federal law.”

The concluding sentence of the above quotation refers to the exemption terms of the Federal statute, and we find these exemption terms in U.S.C.A. Tit. 26 § 3306 (c), in which are listed seventeen numbered paragraphs concerning exemptions, but the only one of these paragraphs which is claimed to be applicable is “ (8) ” which reads:

“Service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation;”

It will be observed that this Federal provision, for all purposes here involved, uses the same words as § 81-1103 (i) (6) (0) of the Arkansas statute; so we consider them together. The Arkansas statute urged by appellee on cross-appeal provides for the following exemption: ‘ ‘ Service performed in the employ of a corporation . . . or foundation . . . organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, ...” In the case at bar, Belle Point Lodge entirely failed to prove that it was organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes. Mr. Lewis was the witness for Belle Point Lodge, and he testified:

“Our organization is religious in that it requires a religious belief for membership. It is of a religious nature in its work. It is educational in that we have branches who study the history of the Order, even politics, for that matter. And it is charitable, primarily, inasmuch as we are organized for the purpose of assisting the brethren in the case of need. . . . We do not consider ourselves a religion inasmuch as it refutes another religion, but we do require a religious belief for membership, and we practice religion in the Lodge in the prayers and invocations.”

A careful search of the transcript fails to show that Mr. Lewis ever used the word “exclusively”. Belle Point Lodge may be organized for religious and charitable purposes, but it may also be organized for fraternal purposes. The point is that Belle Point Lodge failed to show that it was organized and operated “exclusively” for the purposes mentioned within the statute. In the case of Grand Lodge, F. & A. M. v. Taylor, 146 Ark. 316, 226 S. W. 129, emphasis was placed on the word “exclusively”; and so in the case at bar the proof fails to show that Belle Point Lodge is a corporation organized and operated exclusively for the purposes mentioned in the Arkansas statute allowing exemptions.

It therefore follows that the decree of the Chancery Court is reversed and the cause is remanded for the entry of a decree in keeping with this opinion. .

       The said Certificate of Assessment reads as follows:

        “CERTIFICATE OF ASSESSMENT of CONTRIBUTIONS LEVIED BY THE ARKANSAS EMPLOYMENT SECURITY ACT

      “TO THE CLERK OF THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS: I, J. L. Bland, Administrator of the Employment Security Division of the Department of Labor of the State of Arkansas, hereby certify:
      “That on the 23rd day of January, 1961, I certified to the Commissioner of Labor of the State of Arkansas an assessment of delinquent contributions levied by the Arkansas Employment Security Act, past due and unpaid by: Belle Point Lodge No. 20 of Fort Smith, of the County of Sebastian, State of Arkansas; and on said date delivered a copy of said assessment to said Belle Point Lodge No. 20.
      “I further certify that ten days has expired since said certification to said Commissioner and delivery to said delinquent taxpayer, and I now hereby certify to you, as Clerk of the said Circuit Court, that the amount of said delinquent contributions due by the said Belle Point Lodge No. 20 is $342.26. Cost of filing this assessment, $1.00 — Total $343.26.
      “NOTICE OF LIEN: Notice is hereby given that Section 18(e) of Act 162 of the Acts of Arkansas 1953, creates a lien upon all real and personal property owned by the above named defendant to secure the payment of the amount above shown.
      “WITNESS MY HAND as such Administrator on the 2nd day of February, 1961. (Signed). J. L. Bland, Administrator, Employment Security Division, Department of Labor of State of Arkansas.”

       We copy the Chancellor’s opinion iñ extenso: “This petition for review is filed pursuant to Title 81, Section 1117 (e) of the Employment Security Act. It is an undisputed fact that Belle Point Lodge No. 20 has only one employee. From the evidence it is clear that this Lodge of Free and Accepted Masons is not operated ‘exclusively for religious, charitable, scientific, literary or educational purposes.’ If it were so operated it would be exempt under the provisions of the first paragraph of Title 81, Section 1103 (i) (6) (0). The second paragraph of the above section provides: ‘Also any service or employment now exempt under terms of Federal Unemployment Compensation laws so long as the same is exempt under Federal Law.’
      “Federal Unemployment Compensation Act, Chapter 23, I.R.C. Section 3306 (a) and Regulation Section 31, 3306 (a)-l exempts all persons or organizations employing less than four (4) persons. Research by the write of this opinion has not disclosed any interpretation of this section by the Supreme Court of this State.
      “The Legislature, in the enactment of the Employment Security Act, provided for a review by a Court of Equity and in so doing, in my opinion, had in mind an equitable construction of these provisions to protect some organizations who might not be exempt by reason of exclusive operation for charitable purposes, but exempt under Federal Law.
      “Considering the provisions of Sub-section (0) along with the provisions of Sub-section (1) which exempts services performed in the employ of Chambers of Commerce, baseball clubs, and civic organizations, and labor unions, excepting those liable for tax under the Federal Unemployment Tax Act, it leads this Court to the conclusions that the Legislature did not intend that organizations such as Belle Point Lodge No. 20 should bé liable under the Act.
      “It is, therefore, the opinion of the Court that Petitioners, Belle Point Lodge No. 20 is exempt for liability under the Employment Security Act, by reason of the provision of the second paragraph of Title 81, Sec. 1103 (i) (6) (0).”

       Appellant urges on direct appeal two points:
      (a) The Court erred in holding that appellee was exempt from the payment of the tax assessed under the provisions of Ark. Stats. § 81-1103 (i) (6) (0), and the Federal Unemployment Tax Act, U.S.C.A. Tit. 26, § 3306.
      (b) The Court erred in finding that the Petition for Review should be sustained and in quashing the assessment.

       On cross-appeal, the appellee urges that the Belle Point Lodge is exempt under Ark. Stats. § 81-1103 (i) (6) (0) as a “foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earning of which inures to the benefit of any private shareholder or individual.”


author: George Rose Smith, J.

text:
    Girard v. Kuklinski.
    5-2758
    360 S. W. 2d 115
    Opinion delivered September 10, 1962.
    [Rehearing denied October 8, 1962.]

      Wootton, Land & Matthews, for appellant.

      Richard W. Hobbs, for appellee.
   George Rose Smith, J.

This is an action by Kuklinski and his wife to recover damages for personal injuries and loss of consortium sustained when the husband’s ear, while stopped at an intersection, was struck from behind by a vehicle driven by the appellant. There was a $12,000 verdict for Kuklinski. We find it necessary to consider only the appellant’s contention that the court permitted the plaintiffs to introduce incompetent and prejudicial evidence.

Two police officers who investigated the accident gave their opinion that the defendant Girard was drunk at the time. Over an objection one of these witnesses also testified that he placed a charge against Girard for driving while under the influence of intoxicants.

The latter testimony was inadmissible. It is generally held that evidence of an arrest or of the filing of a charge, without proof that a conviction resulted, is incompetent. Blashfield, Cyclopedia of Automobile Law and Practice (Perm. Ed.), § 6196. The minority view was taken in Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876, hut that case was overruled in Billington v. Schaal, 42 Wash. 2d 878, 259 P. 2d 634.

The exclusionary rule is sound. The fact of arrest was not in itself a significant act for the jury to consider. It merely indicated the officer’s belief at that time and thus corroborated his testimony that he thought Girard to have been drunk. It is, however, ordinarily improper for a witness’s testimony to be reinforced by proof that he made the same statement upon some earlier occasion. Rogers v. State, 88 Ark. 451, 115 S. W. 156, 41 LEANS 857. There we held the admission of such bolstering testimony to he prejudicial.

Here the proof was especially objectionable, for our Uniform Act Regulating Traffic on Highways, Act 300 of 1937, provides that no record of a conviction under the act shall be admissible as evidence in a civil case. Ark. Stats. 1947, § 75-1012; Garver v. Utyesonich, 235 Ark. 33, 356 S. W. 2d 744. The appellees argue that the charge of drunken driving did not involve a violation of the Uniform Act, since the charge was lodged under a later statute, Act 208 of 1953. Ark. Stats., § 75-1027. The latter act, however, was in substance an amendment and restatement of § 49 of the Uniform Act, and consequently the later statute should properly be treated as falling within the purview of the general provisions of the Uniform Act. Since the record of a conviction under the act is inadmissible there is still less reason for admitting proof of a mere charge.

We cannot say with confidence that the inadmissible evidence was not prejudicial. The jurors may well have supposed that the placing of the charge was an indication of its truth, in the absence of an affirmative showing by Girard that he was not convicted. If he really was convicted, as appears to have been the case, then he was powerless to rebut the jury’s inference, and proof of the mere charge was just as damaging as proof of the conviction would have been.

We do not agree with the trial court’s conclusion that the inadmissible testimony was invited by Girard’s attorney, who conceded in his opening statement to the jury that his client had consumed three or four bottles of beer before the accident. Inasmuch as proof that Girard had been drinking was undoubtedly admissible, we fail to see why counsel’s reference to that proof should be considered as an invitation for the use of incompetent and prejudicial evidence.

Reversed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Bachman v. State.
    5036
    359 S. W. 2d 815
    Opinion delivered September 10, 1962.

      W. G. Wiley, for appellant.

      Frank Holt, Atty. General, by Dennis W. Horton and Sam H. Boyce, Asst: Attys. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Richard D. Bachman, was convicted in the Municipal Court of Batesville and fined $25 for maintaining an ‘ automobile graveyard” within 500 feet of State Highway 69, which is paved. On appeal to circuit court his conviction was affirmed, and this appeal follows.

Appellant was charged with violating Act 212 of 1955. Section 1 defines an automobile graveyard as “any place where five (5) or more junk, wrecked or non-operative automobiles or other vehicles are deposited, parked, placed, or otherwise located”. Section 2 says it shall be unlawful for any person to maintain or operate an automobile graveyard within one-half mile of any paved, highway of this State. Section 3 allows four months after the act becomes effective to remove the junked cars. This section also provides “that the provisions of this act shall not apply to any automobile wrecking yard or graveyard which is now being actively operated as a going business.” (Emphasis added.) (Ark. Stats. §§ 76-129 — 76-133)

Because of the disposition we are making of the case it is unnecessary to discuss at length or pass upon all the points appellant relies on for a reversal. It is our conclusion that said Act 212 is unconstitutional, and that the judgment of the trial court must be reversed.

There can be no dispute about the fact that any right the legislature has to prevent the location of an automobile graveyard along a public highway stems from its police power. This is true because every citizen has a common right to own and possess property so long as it does not interfere with the general health and welfare of the public. In the case of Beaty v. Humphrey, State Auditor, 195 Ark. 1008, 115 S. W. 2d 559, this Court, in construing Act 313 of 1937 (Ark. Stats. §§ 71-501 — 71-522) which, regulated barbers, quoted with approval the following:

“ ‘If it has any such right, it comes within what is termed the police power. There have been many definitions of the term ‘police power’ and many cases before the courts of the country assailing statutes as not being within that power.’ ”

It is just as well settled by many decisions of this and other courts that when a state exercises its police power to regulate a lawful business such regulation must bear a direct relation to the general welfare. In the Beaty case, supra, the Court found such a relationship existed, and consequently upheld said Act 313. Four years later the legislature passed Act 432 of 1941 which complemented said Act 313 by giving a Board the right to fix minimum wages which a barber could charge. This act was tested in the case of Noble v. Davis, 204 Ark. 156, 161 S. W. 2d 189, where we held it was an invalid exercise of the police power. The Court reached this conclusion even though Section 1 of Act 432 specifically provided that ‘ ‘ The purpose of this Act is the protection of the public safety, health, welfare and general prosperity. . . .” After referring to the above language the Court said:

“The fact that the Legislature so declared the purpose of the act does not make it so, if, in fact, the declared purpose has no substantial connection with the real purpose of the act.”

The Court then went on to point out that no such connection did exist in fact.

In the case under consideration a very sound argument could be made to show that an automobile graveyard, although located near a public highway, in no way affects the public safety, health, welfare, and general prosperity of the people. If that argument be accepted it must be concluded that only the esthetic senses of the traveling public would be offended or affected. There is respected authority that the police power of the state is not broad enough to include only esthetic considerations. This line of reasoning would necessarily result in declaring said Act 212 unconstitutional. We do not choose, however, to base our decision in this case upon the above line of reasoning, because it appears to us that the general trend of modern judicial thinking is to broadening the scope of the police power to include esthetic considerations, especially when connected with other considerations. Both the narrow and the broad views are well and sufficiently expressed in a quotation from the case of W. C. Farley, etc. v. Patrick C. Graney, State Road Commissioner, etc., W. Va., 119 S. E. 2d 833, which dealt with a state of facts similar to those of this case. The Court there said:

“It would serve no useful purpose to engage in an extended discussion of the place of esthetic considerations in the enactment of legislation under the police power. It can not be gainsaid that at this time the great weight of authority is to the effect that esthetic considerations alone will not justify the exercise of legislative authority under the police power. But on the other hand, it is perhaps just as well established that esthetic considerations may be given due weight in connection with other factors which support legislative exercise of the police power. It is clear also that there is in this day a marked tendency to accord greater importance to esthetic considerations.”

In this modern age when our highway system is being expanded and improved, and when more attention is being given to their beautification for the attraction of tourists, we deem it wise not to close the door on the aforementioned tendency to broaden the scope of the state’s police power.

2. We have concluded, however, that the judgment of the trial court must be reversed because said Act 212 is arbitrary and unreasonable in attempting to effect its intended purpose, which could only be to protect the traveling public from unsightly views. The courts have many times held that the operation of a junk yard or an automobile graveyard is a lawful business. The Act itself recognizes this fact by allowing the continuance of those already actively in business. See also: Town of Vestal v. Bennett, 199 Misc. 41, 104 N. Y. S. 2d 830; City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523; and State v. Brown, 250 N. C. 54, 108 S. E. 2d 74.

The state cannot of course destroy or injure a person’s private property without just compensation and without due process of law. It may regulate its use under certain circumstances but only if the imposed regulations are reasonable and not arbitrary. The state cannot by statute, under the guise of the police power, impose arbitrary or unreasonable restrictions upon private property or its use. Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 Law Ed. 385; Anderson v. Jester, 206 Iowa 452, 221 N. W. 354; Merrill v. City of Wheaton, 356 Ill. 457, 190 N. E. 918. To the same effect, the United States Supreme Court in the case of Williams v. Arkansas, 217 U. S. 79, 30 Sup. Ct. 493, 54 Law Ed. 673, at page 88 of the U. S. Reports, quoted with approval the following:

“Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the State to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and the personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary interfered with or destroyed. ...”

The Act under consideration here, in effect, imposes a penalty of $100 a day for each day a person keeps or maintains 5 “non-operative” automobiles within one-half mile of any paved highway, regardless of whether they can be seen or not. By no stretch of the imagination could it be maintained that 5 such cars located one-half mile away from the highway, hidden behind a hill, a forest, a high fence, or in a building, could offend the esthetic senses of a traveler along' sáid highway, and certainly not Ms peace, health or happiness. To that extent, then, it must be concluded that the Act is arbitrary and unreasonable, and bears no relation to the purpose intended to be achieved, which could only be to keep travelers from having to look at an unsightly junk yard.

Nor are we convinced by the argument that the Act is valid as it applies to appellant’s situation who maintains more than 5 non-usable cars in open view within 500 feet of the highway. The only alternative left to appellant under the terms of the Act is to abandon his business or subject himself to a fine of $100 a day. The Act is arbitrary and unreasonable because it affords him no opportunity at all to save his business by obstructing it from the view of those persons who travel the Mghway. This could be done by erecting a high wall or fence or by inclosing the cars in a building. If he did not of these things he would still be subject to the penalty provided in the Act. Putting it another way, we hold Act 212 to be arbitrary and unreasonable because it could injure or destroy a lawful business while it affords the owner no opportunity to preserve the same by making changes or alterations without offending the intended purpose and purview of the Act.

Consequently the judgment of the trial court must be, and the same is hereby, reversed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice

(Concurring). I agree that the Act here under consideration is unconstitutional. See State v. Brown, 250 N. C. 54, 108 S. E. 2d 74.

The purpose of this concurrence is to indicate my view that the State can accomplish what it is seeking to do — i. e., police junk yards on or near highways — by declaring the operation of such yard to be a privilege, and by designating some agency or authority to grant permits, upon reasonable rules and regulations as to conditions, sanitation, maintenance, etc. For the benefit of those interested, I cite the following: State v. Kievman, 116 Conn. 458, 165 A. 601, 88 A.L.R. 962; and see also annotations entitled, “Regulation of Junk Dealers,” in 88 A.L.R. 970, and 45 A.L.R. 2d 1391; and annotation entitled, “Automobile Wrecking Yard or Place of Business as Nuisance,” in 84 A.L.R. 2d 653. See also generally Vt. Salvage Corp. v. Village of St. Johnsbury (Vt.)., 34 A. 2d 188.


author: Sam Robinson, Associate Justice.

text:
    Cunningham v. Stockton, County Judge.
    5-2723
    359 S. W. 2d 808
    Opinion delivered September 10, 1962.

      Garner, Shaw & Kimbrough, for appellant.

      James H. Pilhinton and Nabors Shaw, for appellee.
   Sam Robinson, Associate Justice.

Appellants, Bill Cunningham and Harold Berg, filed this action in the Chancery Court to enjoin Roy Stockton, County Judge of Polk County, from “using, loaning, letting, hiring, or otherwise using” county road machinery in making improvements for private citizens. It appeared that the County Court had approved the action of the County Judge in the use of the equipment and the Chancellor ruled that the Chancery Court did not have jurisdiction to grant the relief sought; that such jurisdiction was in the Circuit Court.'

The issue on appeal is whether the Chancery Court has jurisdiction to enjoin the County Judge from using the county equipment for unauthorized purposes.

During March and April, 1961, the County Judge 'used heavy earth moving equipment belonging to the county to do work for certain individuals. Only one of those individuals paid for such work.

On August 15, the County Judge entered into a purported contract with his secretary, Grace Bell Smith, whereby all the county road equipment of Polk County was leased to Miss Smith for the consideration of one dollar per year, and other consideration.

Later, the County Judge used the road equipment for doing work for other individuals. At the trial in Chancery Court, the County Judge testified that unless prohibited by a court order, he would continue to do such work for individuals.

On October 16, 1961, this Court decided the case of Needham v. Garner, County Judge, Law Reporter, Vol. 108, No. 10. There the Court said: “One, there is no contention here by appellee that he was acting in the capacity of the County Court. The record show that the parties stipulated ‘there have been no orders of the County Court made, entered or placed of record confirming or affirming any of the dirt moving project contracts’. Two, because of the above stipulation, we need not and do not affirm or deny the powers of the county court to enter into contracts such as here questioned. Three, there is no contention that the County Court ratified the contracts made by the County Judge.”

The next day, October 17, the County Court entered what was designated as a nunc pro tunc order approving and ratifying the work done by the County Judge for private individuals, and on the 7th or 8th of November, the County Court entered another such order.

Now as to the jurisdiction of the Chancery Court to enjoin and restrain the County Judge or County Court from using the county equipment for unauthorized purposes, Art. 16, Sec. 13 of the Constitution of Arkansas provides: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”

In the Needham case, in referring to Art. 16, Sec. 13, we said: “The above quoted section of the constitution has been interpreted in more than forty decisions of this Court. A casual reading of just a few of these decisions clearly indicates a liberal interpretation of said section not only for the protection of citizens against specific ‘illegal exactions’ but for protection against unlawful official acts which could logically result in illegal exactions. We think there can be no doubt that if a county judge is given the right, limited only by his own discretion, to use county road machinery for private purposes, it could result in the need for more tax money to repair and replace the road machinery.”

In McLellan v. Pledger, County Treasurer, 209 Ark. 159, 189 S. W. 2d 789, there was a contention that the Chancellor did not have jurisdiction; that there was a remedy at law. This Court said: “Appellees insist that the Chancery Court was without jurisdiction, as the plaintiffs had a remedy at law — i.e., appeal from the County Court order allowing a claim or salary warrant under either of the acts. Appellees cite Bowman v. Frith, 73 Ark. 523, 84 S. W. 709; and Sadler v. Craven, 93 Ark. 11, 123 S. W. 365, to sustain their contention. But in Bowman v. Frith it was pointed out that a taxpayer could not proceed in equity to prevent a county from entering into a contract claimed to be improvident, but could proceed in equity to restrain the county from entering into a void contract. Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L.R.A. 353, was there cited as authority for such equitable proceeding in the case of a void contract. In the case at bar it was alleged that the legislative acts were void; so the Fones case applies, rather than the Bowman case. Sadler v. Craven, supra, involved an attack on an allegedly improvident contract, and not one claimed to be void. In short, the cases cited on this point by appellees are without application.”

Likewise, in the case at bar, it is alleged in the complaint that the use of the county equipment, as above mentioned, is illegal, unlawful and unauthorized by law. Furthermore, the order of the County Court approving and ratifying the action of the County Judge in the use of the machinery was not made or entered until months after the work was done. In a situation of this kind, a citizen would have no remedy unless it was by injunction.

The Chancery Court has jurisdiction to grant the relief sought by plaintiffs and should do so.

Reversed.


author: Neill Bohlinger, Associate Justice.

text:
    Donaldson v. Johnson.
    5-2727
    359 S. W. 2d 810
    Opinion delivered September 10, 1962.
   Neill Bohlinger, Associate Justice.

Clare M. Donaldson was the mother of the appellant, J. Earl Donaldson and Willie Johnson, an appellee herein, and the grandmother of Helen M. Johnson who is also an appellee.

Clara M. Donaldson was the owner of a home in Springdale, Arkansas and on January 17, 1958 she executed a deed conveying the homeplace to her granddaughter, Helen M. Johnson, subject to her life estate therein. The consideration recited was $1.00 and other valuable considerations.

At the time of the execution of this deed, Mrs. Donaldson was 81 years of age and was suffering from diabetes, arteriosclerosis, leukemia, secondary uremia and other diseases of old age. Nine days after execution of the deed in question Mrs. Donaldson died. Mrs. Donaldson had resided in her home in Springdale for many years and subsequent to her husband’s death had been cared for by her son, Earl Donaldson, appellant, who lived in her home with her. Earl had also cared for her and her husband and had lived with them from time to time.

On January 16, 1958, Mrs. Donaldson’s daughter, Willie Johnson, came to the Donaldson home and took Mrs. Donaldson to the Johnson home. The deed in question was executed by Mrs. Donaldson on January 17th in the office of a lawyer in Fayetteville.

After the death of his mother, appellant brought this suit to cancel the deed from Mrs. Donaldson to her granddaughter, Helen M. Johnson, and alleged that the appellees, Willie and Helen Johnson, exercised undue influence on Mrs. Donaldson to secure the deed and also that Mrs. Donaldson was incompetent to execute the deed.

Much testimony was offered both by doctors and laymen as to Mrs. Donaldson’s mental capacity, the doctors and laymen all testifying that in their opinions, because of her diseases and old age, Mrs. Donaldson did not have the competence to know the extent of her property and to realize the disposition she was making of it although they all testified that Mrs. Donaldson did have lucid intervals during which she was normal.

At the close of appellant’s case in chief the chancellor sustained a demurrer as to the undue influence allegation. There was no testimony offered concerning undue influence and the fact that Mrs. Donaldson’s daughter, Willie Johnson, took her mother to her home the day before the deed was executed might offer an opportunity for the exertion of influence but there is none shown to have taken place. The daughter, Mrs. Johnson, seems to have been an infrequent visitor to her mother’s home and there is no testimony to support appellant’s allegation of a confidential relationship between Mrs. Donaldson and her daughter or granddaughter which would give rise to a presumption of undue influence, duress or fraud which the appellee would be required to rebut. We conclude the chancellor was correct in sustaining- the demurrer to the allegation of undue influence. The issue of confidential relationship and presumption of undue influence is covered well in an Iowa case, Arndt v. Lapel, 214 Iowa 594, 243 N. W. 605:

“What constitutes a confidential relationship has been recently passed upon by this court in Utterback v. Hollingsworth, 208 Iowa, 300, 225 N.W. 419. We quote the following, loe. cit. 302 of 208 Iowa, 225 N.W. 419, 421: ‘Plaintiffs take their main position on the proposition that defendants sustained to decedent a confidential relationship such as to shift to them the burden of proof. It is not claimed, of course, that the relationship was fiduciary as a matter of law, but that it existed in fact within the doctrine of Curtis v. Armagast, 158 Iowa, 507, 138 N.W. 873; Pruitt v. Gause, 193 Iowa, 1354, 188 N.W. 798; 2 Pon. Eq. (4th Ed.) § 956. This doctrine for the purpose of the matter now under discussion may be stated to be that one who in fact stands in a confidential relationship to another may not retain advantage of a transaction with the ceshd que trust which may reasonably be tbe result of tbe confidence reposed, unless he shows that the cestui acted with freedom, intelligence, and with full knowledge of all the facts. The purpose of the doctrine is to defeat and correct betrayals of trust and abuses of confidence. It is a prerequisite to the application of the doctrine that faith and confidence be reposed ; that the repository shall be thereby in a position of superiority or dominance, while the cestui is in a corresponding position of inferiority or subservience. * * * Before the doctrine can be applied, however, the existence of the confidential relationship or of the facts giving rise to it must be proved. The relationship must be such as to enable the one charged with having abused it, to have exercised it to his advantage. It must appear expressly or by implication that trust or confidence was reposed. The supposed trustee must be shown to have been in a position of advantage or superiority such as to imply a dominating influence over the cestui (citations omitted)

As was said in McNeer v. Beck, 205 Iowa, 196, loc. cit. 198, 217 N.W. 825, 826: ‘Mere blood relationship does not of itself create the legal trust or confidential relationship and change the requirement in the above regard. Krcmar v. Krcmar, 202 Iowa, 1166, 211 N.W. 699; Shaffer v. Zubrod, 202 Iowa, 1062, 208 N.W. 294.’ ”

The mere proof of kinship alone does not give rise to a confidential relationship. Cunningham v. Lockett, 216 Miss. 879, 63 So. 2d 401; Arndt v. Lapel, 214 Iowa 594, 243 N.W. 605; 26 C.J.S. § 64a, p. 774.

There is no set formula by which the existence of a confidential relationship may be determined, for each case is factually different and involves different individuals. As was said in Gillespie v. Holland, 40 Ark. 28, 48 Am. Rep. 1:

# # * # *
“* * * (confidential relationships) are supposed to arise wherever there is a relation of dependence or confidence; especially that most unquestioning of all confidences which springs from affection on one side, and a trust in a reciprocal affection on the other. The cases for the application of the doctrine can not be scheduled. They pervade all social and domestic life.” [Emphasis added]

The second allegation on which a reversal is prayed is that the preponderance of the evidence showed Mrs. Donaldson was incompetent at the time the deed was executed. The appellant offered the testimony of several of Mrs. Donaldson’s neighbors and Mrs. Donaldson’s doctors that she was mentally incompetent to execute the deed. The doctors, one of whom had been treating Mrs. Donaldson for about two years, testified that in their opinion, because of her diseases and advanced age, she did not have the competency to know the extent of her property and the disposition that she was making of it. They all testified, however, that Mrs. Donaldson did have lucid intervals.

The test of mental competency to execute a deed is found in Petree v. Petree, 211 Ark. 654, 201 S.W. 2d 1009, where we quoted Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510, as the applicable rule in cases of this kind.

“If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590; Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888.” [Emphasis added]

The Pledger case was also quoted approvingly in Hunt v. Jones, 228 Ark. 544, 309 S.W. 2d 22.

Even the doctors who testified that Mrs. Donaldson was mentally incompetent agreed that she could have lucid intervals. Since it is shown that Mrs. Donaldson had periods in which she was normal, it becomes a question as to her mental condition at the time the deed was executed. It is not a question as to mental condition before or on the afternoon of the day on which she executed the deed, but in the morning at the time the deed was signed did she have the capacity that is demanded by the authority quoted above.

There were but two witnesses that testified as to Mrs. Donaldson’s mental capacity the day she executed the deed. Taking the testimony of these witnesses in the order in which they were presented to the trial court and not the sequence of events, there was the testimony of Mrs. George Been, a next door neighbor to Mrs. Donaldson who had observed Mrs. Donaldson for many years and had noted a mental decline ever since the death of Mrs. Donaldson’s husband and who talked to Mrs. Donaldson on the evening of January 17th after the deed in question had been executed the morning of that day. Mrs. Been stated that Mrs. Donaldson’s mental and physical conditions were poor; that she wasn’t able to understand and could not carry on a conversation; that she had known Mrs. Donaldson for more than fifty years and that she and Mrs. Donaldson had many mutual friends and she enjoyed her conversations with her but there were times when Mrs. Donaldson’s mind did wander but there were times when she would be perfectly all right.

The only other witness in connection with Mrs. Donaldson’s mental condition at the time she executed the deed was the attorney who prepared the deed. He testified that Mrs. Donaldson had sought to make an appointment with him some weeks prior to the time the deed was executed and he was unable to see her on that occasion but did arrange to see her on the 17th of January, 1958, and that on the second occasion when she called him she stated that she wished to draw a deed. He saw her in the morning of January 17, 1958, at his office and there was no one in his private consultation room except he and Mrs. Donaldson. He did not know how she reached his office.

While part of this witnesses’ testimony is open to objection, his testimony is competent and relevant as to his observations on her mental condition. It appears from this testimony that Mrs. Donaldsoii was 81 years of age and the attorney said she was in his office for more than an hour and he enjoyed the conversation he had with her.

After the attorney’s secretary had gone to prepare the deed in question he and Mrs. Donaldson talked about the infirmities of age and she told him that she had her good days and some bad days but on this particular day she felt good. They discussed how things had progressed, about old relationships, and she told him about the store she and her husband once had. The attorney found that she was coherent, well oriented and knew exactly what she wanted and was quite lively to talk with. Mrs. Donaldson stated to the attorney that the grantee in the deed was her only grandchild and that she and her husband had wanted to give her something and she wanted to do it in a way that would be impervious to attack after her death.

Based on his experiences with Mrs. Donaldson and his conversation with her, the attorney was in a position to give an opinion as to her mental capacity on that day at the time the deed was executed. From her ability without prompting to remember the nature and extent of her property; to know what she was doing with it and who was the natural recipient of her bounty, the attorney formed an opinion that she was totally and completely competent and the deed was executed in his presence. There is no testimony that Mrs. Donaldson was incompetent at the time the deed was executed.

These matters might well have presented themselves to the consideration of the learned chancellor. One of the tests set forth in Petree v. Petree, 211 Ark. 654, cited supra, was the grantor’s ability to protect his own interest in dealing with another. In this case we find that Mrs. Donaldson provided for herself — fully protected her interest — by reserving a life estate in the property.

There is before us a photostatic reproduction of the deed in question showing the signature of Clara M. Donaldson which the chancellor had the opportunity to observe. The signature of Clara M. Donaldson on the deed is in a firm, clear hand. It has none of the waverings in the letters or lines that we might expect to be present in a person mentally and physically distressed at the time of the signing but is a clear, bold signature that bespeaks neither uncertainty or fear and is a mute witness but eloquent testimony which tends to sustain the testimony of the attorney that she was fully competent.

The proof before the chancellor fails to show undue influence or lack of mental capacity at the time the deed was executed. The chancellor so found and thé decree in this cause is accordingly affirmed.

Johnson, J., dissents.


text:
    Louisiana-Nevada Transit Co. v. Ozan Lumber Co.
    5-2736
    360 S. W. 2d 120
    Opinion delivered September 17, 1962.

      Weisenberger <& Wilson, by John L. Wilson, Moses, McClellan, Arnold, Owen & McDermott, by James R. Howard, for appellant.

      Tompkins, McKenzie é McRae, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Ozan Lumber Company, instituted an action for damages against appellant, Louisiana-Nevada Transit Company, and F. S. McGee. The action was filed as the result of a fire alleged to have been caused by the negligence of appellant and McGee, the fire resulting in damage to timber land owned by Ozan. The Circuit Court, sitting as a jury, awarded judgment against Louisiana-Nevada and McGee in the amount of $2,388, and apportioned the negligence as 80% to appellant and 20% to McGee. From the judgment so entered, Louisiana-Nevada brings this appeal. For reversal, appellant asserts first, that the acts of its employees were not the proximate cause of the damages suffered by appellee, and second, that there is no substantial evidence supporting the findings that the transit company was responsible for 80% of Ozan’s damages.

Appellant owns and operates a pipe line which, traverses lands owned by Ozan. The line is buried from 18 to 24 inches below the surface of the ground, and pressure on the line varies from 250 to 400 pounds per square inch. Louisiana-Nevada entered into an oral contract with McGee for the cleaning of the right-of-way, which was overgrown with brush, weeds, and grass, and the company agreed with McGee that its employees would precede his operations, and mark all connections and protrusions upon the line, in order that McGee’s bulldozer operator would avoid striking them.

McGee commenced work under the contract, starting at Cotton Valley, Louisiana, and working northward. A large diesel powered bulldozer, equipped with a nine-foot steel blade, was used, and the right-of-way was cleared to a width of eighteen feet. Connections on the line were located both above and below the ground, and on each day prior to September 12, 1960, an employee of the transit company preceded McGee’s employees, marking all connections and danger areas on the line, both above and below the ground. The markings were accomplished by placing a red flag on a stick, or by a transit company émployee standing on the connection and waving off the bulldozer operator. The latter, when coming to a marked connection, would go around it. Appellant company possessed a map of the line, prepared by its engineers, which supposedly pointed out all connections on the line, both above, and below, the ground.

B. Bullock, foreman for McGee, testified that Hale Bowden, district superintendent of Louisiana-Nevada Transit Company, told him there were no connections in the area worked on September 12th; that this was the only day that appellant company did not have an employee present, and engaged in marking. On that date, the bulldozer struck a connection and broke it off. The broken valve then released gas, and fire immediately broke out. McGee’s employees were unable to extinguish the fire until Bowden came out and cut off the gas. After arriving, it took Bowden at least an hour to accomplish this task, and fire burned over and damaged approximately five acres of timber land belonging to appellee. An employee of the transit company “beat out” the fire, and poured some water on the burning stumps. No fire lane was plowed around the burned area by either appellant’s employees or those of McGee. In fact, no further steps of any nature were taken to ascertain that the fire had completely ceased burning, or to insure against its recommencement. The whole area was left unattended, following repair of the line, completed about one o ’clock in the morning. The next day, aided by a strong wind, the fire broke out again, and burned over additional large portions of Ozan’s land. It was extinguished around six o ’clock of the evening of the second day, by forest rangers.

Appellant contends that it is not liable, because its failure to mark the location of the valve was not the proximate cause of the fire, but rather that the proximate cause was the breaking of the connection, and this last was due to the manner in which McGee’s employee operated the bulldozer. Appellant company asserts that it was only obligated under the contract to mark connections on the surface of the ground; that McGee’s dozer was only supposed to scrape along the surface, or not more than an inch or two beneath; that actually, the dozer dug down ten or twelve inches, thereby hitting the valve, which was about eight inches beneath the ground. The superintendent admitted that he told McGee’s employees that they would encounter no trouble on September 12th (when no company man was present marking the connections), but he testified that this statement was based on the fact that the bulldozer was only due to scrape the surface, rather than to cut down into the earth. Bullock, McGee’s employee, testified that when Bowden told him there was “clear sailing”, he took it to mean there was no danger ahead, either above the ground, or below it. McGee and his employees denied that the blade dug into the ground, but the court found that this did happen.

However, the fact that McGee’s driver operated the bulldozer in an incompetent or negligent manner, does not relieve appellant company of liability. Though Mr. Bow-den stated that he was only required, under the contract, to mark all connections on the surface of the ground, his actions, and other portions of his testimony, somewhat indicate to the contrary. He testified that the company had prepared a map of its line, supposedly showing all connections, both above and below the ground. He stated that the map did not show this particular valve, and he did not know that this valve was underground at the location. Mr. Bowden testified that the engineer who prepared the map simply missed that particular valve. The witness admitted that, in preceding McGee’s working crew, he marked every connection of which he had knowledge, whether on the surface, or under the ground. From the testimony:

‘ ‘ Q. Mr. Bowden, as I understand it, what you were actually doing, you were marking all connections that you knew of?
A. That’s right.
Q. Whether they were above ground or below ground?
A. That’s right.
Q. In doing that on below-ground connections, you had a map of the pipeline, is that correct?
A. Yes, sir.
Q. And that map supposedly showed—
A. That’s right.
Q. —all of your connections on the line?
A. That’s right.
Q. But your map didn’t show this particular connection?
A. That’s right.
Q. So for that reason you did not mark it?
A. That’s right.
Q. I think you answered this question indirectly, but let me ask you directly. Had you known the existence of this connection, would you have in the ordinary course of your duties out there notified Mr. McGee’s employees?
A. I sure would.”

Further:

“Q. That, of course, was a highly dangerous pipeline, if broken?
A. Yes, sir.
Q. Every connection on that pipeline was a potential danger spot, was it not?
A. Any place — any connection that is welded on is a danger spot, for machinery.
Q. It is a danger spot?
A. Yes, sir.
Q. That is the reason you mark them on the map, is it not?
A. Yes, sir.
Q. And the purpose for which you keep that map is to mark those danger areas?
A. That’s right.
Q. And whoever had charge of the map at the time this particular connection was installed apparently simply missed putting it on there, is that right?
A. Yes, sir.”

The testimony is in dispute between McGee and Bowden as to whether all connections were to he marked, or only those above the surface of the ground, but it would appear from the custom that had been followed on the days preceding September 12th, that McGee’s employees were justified in thinking that all valves were to be marked. At any rate, it definitely appears, even from Bowden’s own testimony, that the cleaning operation, involving the possibility of machinery coming into contact with a welded connection, was dangerous, and it is obvious that the company considered even the underground connections a dangerous area, because it marked them on the map. Appellant cites authorities which deal with intervening causes (contending that the negligent operation of the dozer was the sole and actual cause of the fire). We do not agree that these cases are applicable. Bather, the fire, and the resulting damage occurred from the concurring acts of each. There is substantial evidence that both appellant and McGee were negligent, and that such negligence on the part of each was a proximate cause of the fire and resulting damage to Ozan’s property. Appellant failed to mark a dangerous area — McGee operated the dozer carelessly and negligently. Of course, if McGee had not struck the connection, there would have been no fire, but, on the other hand, if McGee had been warned of the valve in that particular area, the driver would have gone around, and thus avoided striking it. See Temple Cotton Oil Co. v. Brown, 192 Ark. 877, 96 S. W. 2d 401. In addition, both were obviously negligent in permitting the fire to break out a second time, having taken no precautions to prevent this occurrence. This second fire caused even more extensive damage. We find no merit in appellant’s contention.

Appellant company complains, in the alternative, that the court committed error in apportioning the negligence between it and McGee. The company stoutly asserts that there is nothing in the record to indicate that it was more at fault in causing the fire than McGee. Of course, it is immaterial whether this Court actually agrees with the apportionment arrived at by the Circuit Court. Just as we are not permitted to substitute our judgment for that of a jury, we likewise are not permitted to substitute our own opinion for that of the trial court sitting as a jury. We are only concerned with whether there was substantial evidence to support the judgment rendered. There is no question of law involved; rather, the question of the degree of liability assessed to each defendant is, in this instance, purely a question of fact. We think there was substantial evidence, as heretofore set out, to support the findings of the trial court. While that court did not give its reasons for the manner of apportioning the overall degree of negligence, it is true, as pointed out by appellee, that had the transit company taken only one precaution, viz., marking the connection in question, the fire would not have occurred.

Finding no error, the judgment is affirmed.

Mr. Justice McFaddin not participating.

       The amount of judgment is not questioned in this appeal.

       McGee has not appealed, and the judgment, as to him, has already become final.

       Accomplished by making two trips.

       Mr. Bowden testified that it was not his duty to point out any connections under the ground unless it was a dangerous area, for instance, where the ground was boggy, or contained big rocks which, in being moved, could break a valve. The area where the valve was broken was not of that type.


text:
    City of Little Rock v. Garner.
    5-2738
    360 S. W. 2d 116
    Opinion delivered September 17, 1962.

      Joseph C. Kemp, City Attorney, by William M. Stocks, Asst. City Atty., for appellant.

      Barber, Henry, Thurman & McCaskill, by Guy Amsler, Jr., Holt, Park é Holt, by Jack Holt, Sr. and Conley Byrd, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a zoning case. Appellee Garner owns, either directly or through options to purchase, a tract of approximately six acres abutting Cantrell Road (State Highway No. 10) in the western part of the City of Little Rock. The tract has a frontage of approximately 530 feet on the highway, and an average depth of approximately 650 feet; and Mr. Garner desires to develop the tract into a modern shopping center. Three of the Garner lots fronting on Cantrell Road have already been zoned as “F” Commercial; but the remainder of the tract is zoned as “A” One-Family District. After several hearings, as hereinafter to be mentioned, the City Board of Directors of Little Rock denied the application for rezoning. Garner then filed complaint in the Chancery Court and, after a thorough hearing, the Court granted Garner his prayed relief — i.e., the City was enjoined from denying Garner’s right to use the tract for “F” Commercial purposes. The City prosecutes this appeal, presenting, inter alia, the matters herein discussed.

I. The Court’s Right To Reverse The City’s Decision. Appellant, in urging that this Court should reverse the Chancery Decree and reinstate the action of the City Board of Directors, claims that reasonable minds might differ as to the rezoning; and since there might be difference of opinion, no court should overrule the decision of the City Board of Directors and substitute its opinion for that of the administrative body. This argument necessitates a brief review of the applicable zoning procedure. A landowner applies to the City for rezoning; the application goes to the Little Rock Planning Commission, which studies the application and makes a decision or a recommendation to the City Board of Directors; and the City Board of Directors acts on the application by either granting or refusing, it, returuing.it to. the Planning Commission,. or by other appropriate action. If — as here — the City Board of Directors finally refuses the application for rezoning, then the property owner,'having exhausted his administrative-remedies, files — as here — a petition, in the Chancery. Court, alleging that the refusal of the City to rezone is arbitrary and amounts to depriving the landr owner 'of the use of his property for its best purposes.

The Chancery-Court hears the case and decides whether the action of the City was arbitrary.-.-In: that trial, the burden, of course, is on the landowner.to- prove hi's allegations by the preponderance of the evidence; and if the evidence makes a mere question of whether the chancery court thinks it would be fairer to rezone the property, then, .of course, the Chancery Court does not substitute its opinion for- that of the City. But when — as here — the Chancery Court finds from the preponderance of the evidence that the City acted arbitrarily in refusing the application for rezoning, then, on appeal to this Court, it is a question of whether the Chancery Court finding is contrary to the preponderance of the evidence. That is the question next to be considered, and we have gone into this point in some detail because appellant has urged that there is confusion in the language of some of our cases. Isolated sentences lifted out of context might indicate confusion; but we think a careful study of the cases will show the statements herein to be the governing rules. We reiterate what we said in Little Rock v. Henson, 220 Ark. 663, 249 S.W. 2d 118:

“In the recent case of City of Little Rock v. Hocott, ante, p. 421, 247 S. W. 2d 1012, it is said: ‘We have uniformly upheld the finding of the Chancellor on the question as to whether the classification of property by zoning authorities is unreasonable and arbitrary where such finding is supported by the preponderance of the evidence.’ Citing City of Little Rock v. Sun Building & Development Co., 199 Ark. 333, 134 S. W. 2d 582; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446."

II. Arbitrary Action Of The City. The Chancery Court found that the City .had acted arbitrarily in refusing Garner’s application for rezoning, and our problem is to decide whether such finding is against the preponderance of the evidence. A review of the record before- us shows the following:

(a) Garner applied to the-City on November 15,1960 for rezonihg from “ A ” One-Family District to “ F ” Commercial District all of the tract in question that was not already “F” Commercial. The City Planning Commission, after several delays, voted in March, 1961, that the •petition for rezoning, be denied,

(b) Mr. Garner .carried the matter to the City Board of Directors; and on April 3, 1961 it was voted to return the Garner application to the Planning Commission' for further study.

(c) On May 11,1961 the Planning Commission again voted to deny Mr. Garner’s application, giving nine reasons for such denial.

(d) The application for rezoning again went to the City Board of Directors, where, after a series of hearings, the matter was, on July 5,1961, returned to the Planning Commission. The minutes of the City Board of Directors on this point are as follows:

“Director Winburn stated that the members of the Planning Commission had not reviewed this Development Plan showing Parking Plans and Traffic Patterns which had been submitted by Mr. Garner, and made the following motion: ‘I hereby move that the Petition of D. H. Garner to the Board of Directors asking that certain property along the south side of Highway No. 10 in the City of Little Rock be rezoned from Residential to “F” Commercial be returned to the Little Rock Planning Commission with the request that said Commission review the site plan and all covenants to furnish improvements in connection with the proposed use of said property should it be rezoned. Further, that said Planning Commission furnish the Board of Directors its recommendations on said Petition after study of all matters iii relation thereto. ’ This motion was seconded by Director Blankenship. A roll call was then had on the motion, the result being as follows: Ayes — Directors Winburn, Brown, Blankenship, Morse, and Mayor Knoop — total 5; Noes — Directors Hewitt and Steinkamp — total 2; Absent — none.”

(e) The application thus went back to the Planning Commission from the City Board of Directors, the minutes of which, as above copied, reflected that the members of the Planning Commission had not reviewed this development plan, as submitted by Mr. Garner; and yet, on July 6,1961 (the next day after the Board of Directors ’ action), the Planning Commission again denied the Garner application, with assigned reasons similar to the nine heretofore copied.

(f) On July 17, 1961, the City Board of Directors finally voted to deny the Garner application for rezoning ; and this suit was filed on July 21,1961.

We have sketched the proceedings in considerable detail in order to show how the Planning Commission assigned first one, and then another alleged reason for refusing Garner’s application; and in the trial in the Chancery Court, the City pursued the same tactics. For instance, it was practically conceded by some of the City’s witnesses that the Garner property could not be used for “A” One-Family purposes; and the City sought to show that the best possible use of this property was “E-l” Quiet Business District, or “D” Apartment District. “E-l” Quiet Business, includes doctors’ offices, clinics,, insurance offices, or any office buildings; and “D ” Apartment means a multiple apartment house.

When it was shown by competent witnesses that these uses for the property had been explored and found unfeasible and financially impossible, the City then claimed that the proposed shopping center would create a traffic hazard on Cantrell Road; and this testimony was in the face of testimony that property abutting on Cantrell Road for a distance of a quarter mile west (away from Little Rock) was already zoned as “F” Commercial, and that the property east of and adjacent to the Garner tract was likewise zoned as “F” Commercial; and the Garner tract was almost an island of residential property with “F” Commercial property lying to the east and west of it. It was furthermore shown that the Garner tract could not be used to advantage for residential property, and that the refusal to allow it to be rezoned as “F” Commercial for a shopping center would amount to depriving the landowner of the use of his property, which already bore a commercial valuation assessment on the tax books.'

Without detailing all of the evidence, it is sufficient to say that it clearly preponderates in favor of the Chancery Decree, which finds:

“That the aforesaid property lies on and is adjacent to Highway No. 10, and that most of the property in the vicinity along said highway, both to the east and to the west of plaintiff’s property, is either zoned or used ‘F’ Commercial, or both; that said property is undesirable for residential purposes but that it has a high value for commercial purposes, and that its intended use for a community shopping center will not adversely affect the use or value of residential property in the vicinity.
“That the City of Little Rock . ... in refusing to classify the (Garner) property for zoning purposes as ‘F’ Commercial, is arbitrarily depriving the plaintiff of the use of his property. ”

The decree of the Chancery Court was correct and is in all things affirmed.

       The Zoning Ordinance of the City of Little Rock lists thirteen “Districts”, as follows: “A” One-Family District; “B” Residence District; “C” Two-Family District; “D” Apartment District; “E” Apartment District; “E-l” Quiet Business and Institutional District; “F” Commercial District; “G” Commercial District; “G-l” Commercial District; “H” Business District; “I” Light Industrial District; “J” Light Industrial District; and “K” Heavy Industrial District. The name of each lettered district tells the use to be made of property in such district.

       Some cases in which such allegations were made and sustained are:

        City of Little Rock v. Henson, 220 Ark. 663, 249 S. W. 2d 118; and City of Blytheville v. Lewis, 218 Ark. 83, 234 S. W. 2d 374.

       This was all discussed in Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, wherein we said:
      “This was a question about which reasonable minds might differ, and did differ sharply as reflected by the testimony in the case, and the ordinance constituted the council as the tribunal to pass upon this question. . . . But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action. North Little Rock v. Rose, 136 Ark. 298; Pierce Oil Corp. v. Hope, 127 Ark. 38.
      “The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears. This we are unable to say.”

       In December 1960 the Planning Commission deferred action for a “staff study”; in February 1961 the study was filed but no action taken; and in March 1961 the Planning'Commission voted to recommend denial of Mr. Garner’s application.

       The minutes of the City Board of Directors contain the following regarding the Garner application:
      “Upon question by member's of the Board of Directors, Mr. Julius Breckling, Planner, stated that the Petition had been denied after it was determined from the Zoning Study and Report made by the Staff of the Little Rock Planning Commission of the area in general, that there was sufficient property zoned as Commercial property in this area which was not being utilized for this purpose. Mr. Joseph Kemp, City Attorney, advised members of the Board of Directors that in an earlier court suit in Supreme Court, it had been determined that under Zoning Laws in the State, if a particular piece of property is requested for rezoning to Commercial District, and said property is abutting or adjoining property used as business property, it can be extended and not be denied if proposed use of property is not obnoxious and conforms to other regulations. Upon question by Director Morse, as to what amount of a proposed business building on the property was leased, Mr. Garner indicated that he had signed leases for approximately seventy-five percent of the total square footage of the building. After lengthy discussion on the matter, Director Winburn moved, that the Petition of Mr. Garner for rezoning of this property to ‘F’ Commercial District be referred to the Planning Commission for prompt reconsideration and study, so as not to delay applicant unnecessarily. This motion was seconded by Director Morse, and adopted. ...”

       There nine reasons are quite interesting.
      “1. This property is not adjacent to an established business district, nor has business been established on the lots zoned ‘F’ Commercial adjacent to this property.

        “2. The only satisfactory access presently available is from Highway No. 10, and the establishment of commercial uses on this property would create traffic hazards', during the busy time of the day in this vicinity. If future streets were extended to the South from this subdivision, heavy traffic would be extended into a most desirable residential district.
      “3. The land is suitable for other uses and has a most desirable view.

        “4. To rezone this property would result in an extension of strip zoning along Highway No. 10.
      “5. The land slopes sharply to the rear and would not provide a one level commercial development, the commercial development would be encroaching, however, on a future desirable residential area.
      “6. There is ample undeveloped ‘F’ Commercial property along Highway No. 10 that is located in a much more logical place for the development of districts. This was reflected in the Highway No. 10 Zoning Commercial Study prepared by the staff and Metroplan earlier this year.
      “7. This would be the establishment of a new business district with a total area much larger than the total business development in its vicinity.
      “8. The applicant for this rezoning request made little effort to justify the rezoning of this property, nor was a market analyses submitted.
      “9. The City Attorney’s office has advised the Commission that the denial of this rezoning petition, if appealed to the court would be defensible.”