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

text:
    STATE of Arkansas v. Randy BOCKSNICK
    CR 79-214
    593 S.W. 2d 176
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for petitioner.

      Robert E. Irwin, for respondent.
   Frank Holt, Justice.

A jury found respondent not guilty of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]) and guilty of interference with a law enforcement officer (Ark. Stat. Ann. § 41-2804 [Repl. 1977]). His punishment was assessed at 5 years’ imprisonment and a fine of $1,-000. The Court of Appeals reversed his conviction on the ground that it was not supported by substantial evidence. We granted certiorari. See Ark. Stat. Ann. Vol. 3A, Rules of the Supreme Court, Rule 29, 6 and 4b, (Repl. 1977). The thrust of respondent’s argument is that even though he may have committed some criminal offense, his conduct did not constitute a violation of § 41-2804, which provides:

(1) A person commits the offense of interference with a law enforcement officer if he knowingly employs or threatens to employ physical force against a law enforcement officer engaged in performing his official duties.

The state argues that the evidence required by this statute has been fully met and the existence of other statutes, such as resisting arrest, does not preclude applicability of this statute.

The facts surrounding the incidents which led to the filing of the charges are not in dispute. When the city marshal, who knew respondent, first saw him, he smelled of alcohol. He placed the respondent in his patrol car and drove him to respondent’s parents’ house but did not attempt to place him under arrest. Later that evening, the marshal saw the respondent carrying a rifle and demanded he surrender it. The marshal suspected that the respondent had been involved in an incident at a local trailer park and wanted to prevent the respondent from returning there. The respondent refused to surrender the rifle and threatened to kill the marshal if he did not stand back. The marshall made no attempt to arrest or detain the respondent. Local officers responded to the marshal’s call for assistance. In the meantime, the respondent proceeded to a nearby grocery store and attempted to obtain some rifle ammunition. This incident, of which the officers were unaware, resulted in the aggravated robbery charge. By the time the other officers arrived, respondent had moved into a wooded area. When they ordered him to surrender, he fired two shots at them. Respondent’s refusal to comply with the officers’ order, the threat to kill the marshal and the firing of the shots led to the filing of the charge of interference with a law enforcement officer.

We find, as did the Court of Appeals, that Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978), is dispositive of the issue here. There the only evidence that the officer was in the performance of his official duties was his statement that, at the time the offender entered the jail, he was “attempting to interview the complainants” in connection with an offense allegedly committed by the offender’s brother. Upon resisting arrest, a physical encounter, accompanied by the offender’s threat to kill, followed outside the jail before the offender was subdued. We held this evidence insufficient to support a conviction for interfering with a police officer in the performance of his duties and that the offender should have been charged with resisting arrest or disorderly conduct, or both. There we noted no statute existed defining resisting arrest before the recent adoption of the new criminal code. Ark. Stat. Ann. § 41-2803 (Repl. 1977) supplies this deficiency and reads in pertinent part:

(1) A person commits the offense of resisting arrest if he knowingly resists a person known by him to be a law enforcement officer effecting an arrest.
(2) ‘Resists,’ as used in this section, means using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person.

Clearly, this statute prohibits resisting arrest. The next section, § 41-2804, supra, addresses a different subject by proscribing interference with an officer who is performing his official duties. Here, there was no evidence that the officers were performing any duty other than effecting respondent’s arrest. We have long recognized, as stated in Breakfield, that penal statutes must be strictly construed. Therefore, we think the legislature did not intend that § 41-2804 would be applicable when one, as here, resists his arrest. Consequently, we do not find substantial evidence to support a conviction of the respondent for interfering with a police officer in the performance of his duties. Therefore, we affirm the Court of Appeals’ reversal of respondent’s conviction.

Fogleman, C.J., and Stroud, J., concur.

John A. Fogleman, Chief Justice,

concurring. I concur simply because of the decision in Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729, even though it is my opinion that Breakfield was wrongly decided. The idea that the same act cannot constitute a violation of two different statutes is a strange one and I trust that this theory will not be followed in treating other sections of the Criminal Code. The fact that one could be charged with resisting arrest does not mean that he could not be charged with interfering with an officer in the performance of his official duties. No one has ever attempted to explain, and I submit no one can explain, how an officer’s arresting one who commits a criminal offense in the officer’s presence is not performing his official duties.

Whenever a lesser offense is not necessarily included in a higher offense, the state has the option of charging the more serious offense and ignoring the lesser. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. The same act may constitute two or more distinct offenses and in such case the state may elect to prosecute for either offense. 22 CJS 20, Criminal Law, § 9 (1), at p. 20.

I am authorized to state that Mr. Justice Stroud joins in this opinion.


source: Caselaw Access Project

author: John F. Stroud, Justice. John I. Purtle, Justice, Richard L. Mays, Justice,

license: Public Domain

text:
    Charles D. DAVIS, Individually and as Regular Guardian of Theresa D. DAVIS, a Minor v. Sondra D. COX and Carl COX
    79-306
    593 S.W. 2d 180
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Laser, Sharp, Haley, Young & Huckabay, for appellants.

      Haskins, Eubanks & Wilson, by: Gary Eubanks and James Swindoll, for appellees.
   John F. Stroud, Justice.

This is a damage suit by a passenger against the driver for injuries sustained in an automobile accident, which was submitted on a motion for summary judgment and a stipulation of all relevant facts. The stipulation would have precluded recovery because of the Arkansas guest statute, but the trial court held the statute void.

On August 1, 1978, appellee Sondra Cox was injured in an automobile accident while a passenger in a car driven by appellant Theresa Davis. The parties stipulated that Sondra Cox was a “guest” in the Davis vehicle at the time of the accident and that Theresa Davis was guilty of simple negligence in the operation of her vehicle, which was the proximate cause of appellee’s damages of $25,000.00. Appellants moved for summary judgment based on the Arkansas guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1979), which prohibits a “guest” from recovering damages from an owner or operator of a vehicle for injury or loss resulting from an accident in which the operator of the vehicle was guilty of no more than simple, or ordinary, negligence. The trial court found that the guest statute was violative of Article 2, §§ 2, 3 and 18 of the Arkansas Constitution and the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. In addition, the trial court ruled that the guest statute had been repealed by the Arkansas General Assembly by the passage of Act 367 of 1975 which, in pertinent part, provides for the comparison of the fault of the parties in all actions for damages for personal injury or wrongful death or injury to property in which recovery is predicated upon fault. Appellee was awarded damages in the amount of $25,000.00 for her injuries and losses. From that judgment appellants take this appeal, alleging two points for reversal.

I.
THE GUEST ACT IS NOT CONTRARY TO EITHER THE ARKANSAS OR UNITED STATES CONSTITUTIONS.

The Arkansas guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1979), provides as follows:

No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others.

On several occasions this court has been called upon to rule on the constitutionality of our guest statute. Each time we have upheld the statute as not violative of the Arkansas or United States Constitutions. Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961 (1937); White v. Hughes, 257 Ark. 627, 519 S.W. 2d 70 (1975), appeal dismissed 423 U.S. 805, 96 S. Ct. 15, 46 L. Ed. 2d 26; Rone v. Miller, 257 Ark. 791, 520 S.W.2d 268 (1975). Our view on this question was unanimously reaffirmed less than five years ago in White v. Hughes, supra, where we announced our intention to “await the views of the United States Supreme Court on the subject” before altering our position on the equal protection clause and its effect on our guest statute. We think it significant that that court dismissed the appeal of our decision in White v. Hughes, supra, due to “want of a substantial federal question.”

There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634 (1973); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973); Bush v. Martineau, 174 Ark. 214, 295 S.W.9 (1927). If it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Stone v. State, supra; Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785 (1972).

In determining whether a classification denies equal protection of the law, we have held, pursuant to Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974). Appellants cite the legislative objectives of prevention of collusive lawsuits, promotion of hospitality, Good Samaritanism and encouragement of car-pooling as justification for the classification under attack. Contrariwise, the trial court in his written opinion reasoned that although there may have been a fair and rational legislative purpose when the guest statute was enacted in Arkansas, such factors as the gasoline shortage and the prevalence of liability insurance have caused the guest classification to now be unreasonable and without a far and rational relation to the legislative objectives sought to be achieved. We acknowledge that legislative classifications can become unreasonable with the passage of time, but we find that the social changes recounted by the trial court have not been sufficiently broad and sweeping to have done so at this time in Arkansas.

Since the California Supreme Court struck down the California guest statute in 1973 in Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P.2d 212 (1973), six other state courts have declared their guest statutes unconstitutional, while another half dozen states have repealed theirs. However, the Texas Court of Civil Appeals later upheld their guest statute as not contrary to the equal protection clause and criticized the decision in Brown v. Merlo, supra. Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973). At least four states have followed the decision in Tisko. Brown can be distinguished from Tisko and the present case in that California had previously abandoned the common law tort doctrine that a person’s status determines the duty owed him, while Arkansas, Texas, and many other states retain the concept. The guest statute merely extends this doctrine from one’s home or real property to his automobile.

It is not our function to rule on the wisdom or practicality of an act of the General Assembly; rather, we must limit ourselves solely to consideration of its constitutionality. Resolving any doubt about our guest statute in favor of constitutionality, as we must, we cannot say that the statute has. no fair and rational relation to the objectives of the legislature. Therefore, we hold that the Arkansas guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1979), is not violative of Article 2, §§ 2, 3, and 18 of the Arkansas Constitution, nor is it contrary to the Fourteenth Amendment to the United States Constitution.

II.
THE ARKANSAS GUEST STATUTE WAS NOT REPEALED BY ACT 367 OF 1975.

In addition to ruling the guest statute unconstitutional, the trial court also held that it was repealed by Act 367 of 1975. Act 367 (Ark. Stat. Ann. § 27-1764 [Repl. 1979]) provides as follows:

... In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.

Section 4 of Act 367 expressly repealed Act 303 of 1973 (unrelated to this appeal) and “all other laws inconsistent therewith.” As the guest statute was not expressly repealed by Act 367, the trial court must have found that it was repealed by implication. Repeals by implication are not favored in the law, and the repeal will not be allowed unless the implication is clear and irresistible. Rightsell v. Carpenter, 188 Ark. 21, 64 S.W. 2d 101 (1933); Babb v. El Dorado, 170 Ark. 10, 278 S.W. 649 (1926). Furthermore, the courts will not adjudge a statute to have been repealed by implication unless a legislative intention to repeal or supersede the statute plainly and clearly appears; the implication must be clear, necessary and irresistible. McDonald v. Wasson, 188 Ark. 782, 67 S.W. 2d 722 (1934).

As the General Assembly clearly expressed its intention in Section 4 of Act 367 to repeal Act 303 of 1973, but failed to so mention the Arkansas guest statute, we cannot say that it clearly intended to repeal Ark. Stat. Ann. § 75-913 (Repl. 1979). These enactments are not hopelessly at odds, as they must be to sustain a repeal by implication. Act 367 establishes a method of comparing fault to reduce the amount of recoverable damages, while the guest statute may entirely eliminate a cause of action. The two concepts are compatible as illustrated by the Arkansas Model Jury Instructions (Civil), which provide in AMI 2112 in part:

If you should find that plaintiff guest was not guilty of negligence which was a proximate cuase of the occurrence, then he is entitled to recover the full amount of any damages you may find he has sustained which were proximately caused by any willful and wanton conduct of defendant driver.
If you should find that the occurrence was proximately caused by negligence on the part of plaintiff guest and also by willful and wanton conduct on the part of defendant driver, then you must compare the percentages of their fault.

We, therefore, hold that the Arkansas guest statute was not repealed either expressly or impliedly by Act 367 of 1975.

Reversed and dismissed. Purtle and Mays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I disagree with the majority veiw because it appears to me that Ark. Stat. Ann. § 27-1764 (Repl. 1979) means what it says:

In all actions for damages for personal injuries ... in which recovery is predicated upon fault, liability shall be determined by comparing the fault. . . .

A guest suing for injuries would seem to me to fit into the above language. Therefore, it is my opinion the guest statute as such has been repealed by the General Assembly through enactment of the above statute.

Richard L. Mays, Justice,

dissenting. Although we have been confronted with the issue of the constitutionality of the guest statute several times, we have never subjected it to the rule of reason. That certainly is the standard of judicial review which the court subscribed to in White v. Hughes, 257 Ark. 627, 519 S.W. 2d 70 (1975), and to which the court pays homage today. As the majority properly acknowledge, for the classification scheme created by the guest statute to withstand judicial scrutiny under the equal protection provisions of our state and federal constitutions, the classification must be “reasonable” and have a “fair and substantial relation to the object of the legislation.”

We obviously recognize this legal principle but have consistently refused to apply it to the guest statute. In Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961 (1937), we sustained the guest statute against constitutional challenge relying upon a Michigan Supreme Court case, Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581 (1931), which has since been overruled by the Michigan Supreme Court. Manistee Bank and Trust Co. v. McGowan, 394 Mich. 655, 232 N.W. 2d 636 (1957). In White v. Hughes, supra, we relied on Roberson v. Roberson, supra, to sustain the constitutionality of the guest statute. Today, we rely on White v. Hughes, supra, and suggest that we await the views of the United States Supreme Court before we undertake a more indepth constitutional analysis. I reject this approach and would hold, consistent with the constitutional principle enunciated today but not applied, that the guest statute violates Art. 2, § 3 of the Arkansas Constitution which provides in part:

The equality of all persons before the law is recognized and shall ever remain inviolate.

The guest statute abrogates the duty of ordinary care by automobile driver/hosts to their passenger/guests. Ordinary care is simply the duty to act reasonably in relation to the health and safety of others. It prescribes a standard of conduct which is fundamental in any civilized society and without which our basic social fabric might be irreparably damaged.

Between 1927 and 1939 when this country was experiencing unprecedented economic stress, twenty-seven states, including our own, enacted guest statutes. These statutes have traditionally been justified in the name of the protection of hospitality and the prevention of collusive lawsuits. Although these may be noble objectives and well within the exercise of the legitimate legislative power, they can hardly be enhanced by the abrogation of the duty of ordinary care for the safety and wellbeing of our fellow brethren. Why should automobile guests be treated any differently than other recipients of hospitality or generosity? Does not the prevalance of liability insurance undermine any rational connection between the prevention of lawsuits and the protection of hospitality? Why eliminate all automobile guests’ right to recover for negligence simply because a few may abuse the right?

The requirement of rationality is one of the most fundamental limitations which our constitution imposes upon our government when it singles out any group of citizens for special treatment or special burdens. The guest statute does not yield to this requirement and, therefore, must fail. Since their enactment, ten states have held the guest statute unconstitutional and others have repealed it. We should join their ranks.

I respectfully dissent.


author: PER CURIAM

text:
    Wilmeda I. LaRUE v. Elbert L. LaRUE
    79-331
    593 S.W. 2d 185
    Supreme Court of Arkansas
    February 11, 1980

      B.W. Sanders, for appellant.

      Janice Williams, for appellee.
   PER CURIAM

On December 6, 1979, appellant sought to lodge a transcript of the record on her appeal from an order of the Chancery Court of Clark County, Arkansas entered on July 25, 1979. The clerk of this court declined to accept the transcript because notice of appeal was not filed within 30 days of the entry of the order or within ten days of the entry of an order on September 26, 1979, denying appellant’s motion for reconsideration of the order entered July 25, 1979. Appellant then filed a motion for rule on the clerk to require the acceptance of the transcript, which was endorsed with a certificate of the attorney for the appellee that he had no objection to the granting of the motion. It was alleged in the motion that neither of the attorneys in the case “or anyone else involved in this matter at the trial court level was aware of the special ten-day provision of Ark. Stat. Ann. § 27-2106.5 [Repl. 1979] and that a strict application of this rule by the clerk would substantially effect the substantive right of the appellant to have her issue decided on the merits.” This motion was denied by this court on January 7, 1980. Appellant then filed a motion for rehearing of her motion for rule on the clerk. In that motion, she does not, as required by Rule 20(g) call attention to any specific error of law or fact. The motion was largely a repetition of the previous motion for rule on the clerk. Instead of calling attention to any error of law or fact, appellant sought to “remind the Court that although procedure is a necessary requirement of the conduct of business and the affairs of Court, it is not and should not be so strict and unrelenting in its minor functions that it becomes a wall over which the subjective interests of the Petitioners to the Court cannot overcome.” Appellant later refers to consistency in abiding by procedural rules, but urges that the court should not “lose the essence of the law which is to provide the citizen with a fair, and impartial forum for a decision on the subject matter of her prayer for relief.” Appellant states that she thinks that appellee’s joining in the motion is the key to our allowing the matter to be submitted on its merits. As we read the certificate of appellee’s attorney, it is a statement he has no objection to the present motion. Although this certificate does not seem to justify a statement that appellee joins in the motion, we accept it as such, because that is not the key to the matter.

We are faced with problems of this sort infrequently, but since there are isolated instances where the court has been compelled to deny a motion such as this, we have decided to depart from our previous practice of entering a simple denial of the motion in order to eliminate the possibility of any further doubt about the matter.

No one contends that the clerk erred in the application of § 27-2106.5, which has been in effect since 1963, or Rule 4 of the Arkansas Rules of Appellate Procedure, which, ¿lthough it superseded the statute on July 1, 1979, is virtually a repetition of the statutory language. Appellant only says that there was a “mutual mistake between all parties dealing with the procedure” and that this court has summarily denied her right to file the transcript.

We had thought the application of this rule had been made quite clear by our stating that it was necessary that we dismiss an appeal in Horton v. Eaton, 258 Ark. 987, 530 S.W. 2d 669, because notice of appeal was not given within 30 days of the entry of the judgment or within ten days of the date a motion for new trial was disposed of. Appellant misconceives the rule of the statute and the rule of appellate procedure as a matter of procedure only. The timely filing of a notice of appeal is, and always has been, jurisdictional. Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S.W.2d 324; Pinnacle Old Line Insurance Co. v. Ellis, 228 Ark. 458, 307 S.W.2d 882; Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 307 S.W.2d 73. See also, Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709; General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W. 2d 40.

We have previously denied relief in a situation where our clerk refused to file a record because the notice was not timely filed, saying that the timely filing of a notice of appeal is “essential to our jurisdiction.” City of Hot Springs v. McGeorge Contracting Co., 260 Ark. 636, 543 S.W. 2d 475.

The fact that appellee does not object or joins in the motion is of no significance. Although a party may consent to jurisdiction over his person, jurisdiction cannot otherwise be conferred by consent. Thornton v. Commonwealth Federal Savings & Loan Ass’n., 202 Ark. 670, 152 S.W.2d 304; Knox v. Beirne, 4 Ark. 460; Arkansas Savings & Loan Ass’n. v. Corning Savings & Loan Ass’n., 252 Ark. 264, 478 S.W. 2d 431. In the case last cited, we said that whether the question is raised by the parties or not, it is not only the power, but the duty of a court to determine whether it has juisdiction of the subject matter.

We must deny the motion for rehearing.


text:
    Willis FULLER et ux v. William H. NORWOOD
    80-14
    610 S.W. 2d 265
    Supreme Court of Arkansas
    February 11, 1980
   PER CURIAM

This case was decided by the Court of Appeals by opinion delivered on December 12, 1979. A petition for rehearing was filed on December 20, 1979 and denied on January 16, 1979. Thereafter, a petition for review was filed in this court on January 25, 1980, and inadvertently docketed. The petition for review is denied and ordered stricken from the docket because it was not timely filed. Rule 29(6) of the Rules of the Supreme Court and Court of Appeals clearly provides that a petition for review by the Supreme Court of a decision of the Court of Appeals must be filed within 17 calendar days from the date of the decision. The last day for filing a petition for review in this case was December 29, 1979.


author: George Rose Smith, Justice.

text:
    Richard PEEL, Judge of the Municipal Court of Pope County v. Gene KELLEY
    79-292
    594 S.W. 2d 11
    Supreme Court of Arkansas
    Opinion delivered February 19, 1980

      Jon P. Shermer, Jr., for appellant.

      Witt & Donovan, for appellee.
   George Rose Smith, Justice.

Under the Small Claims Procedure Act, may a resident of Pope county maintain a suit in the municipal court of Pope county against a resident of Yell county upon a contract that was to be performed in Pope county? No, answered the circuit court of Pope county, and entered an order prohibiting the municipal judge from proceeding further in a $300 contract action brought by Harrell Motors, Inc., against the appellee, Gene Kelley. The municipal judge appeals from that order. We agree with the appellant: The suit is maintainable in Pope county.

The Small Claims Procedure Act of 1977 provides a simple and inexpensive procedure by which any person (with a few exceptions, such as collection agencies) may bring suit, without a lawyer, by filing a short affidavit in a municipal court. Act 725 of 1977; Ark. Stat. Ann. §§ 22-758 et seq. (Supp. 1979). Service of process is ordinarily by certified mail, sent out by the clerk of the court. § 22-758.6. If either side employs a lawyer, the case is to be transferred to the regular municipal court docket (which was done in the case at bar after Kelley employed counsel). § 22-758.8.

Section 4 of the act (§ 22-758.3) is the only provision pertinent to the question now presented:

The venue of civil actions instituted under the Small Claims Procedure shall be as follows:
(1) When a defendant has contracted to perform an obligation in a particular county, an action based on such obligation may be commenced and maintained either in the county where such obligation is to be performed, or in which the defendant, or any such defendant, resides at the commencement of the action.
(2) When the action be for injury to person or to personal property, either the county where the injury occurred, or where the defendants, or any of them, reside at the commencement of the action, shall be the proper venue.
(3) In all other cases, actions shall be commenced and maintained in the county in which the defendant, or any such defendant, resides.

The Constitution provides that municipal courts may be invested with jurisdiction concurrent with justices of the peace. Art. 7, § 43. It follows that municipal courts cannot be given jurisdiction greater than the constitutional limit for justices of the peace, which is $300 in civil cases. Art. 7, § 40; United Loan & Inv. Co. v. Chilton, 225 Ark. 1037, 287 S.W. 2d 458 (1956). The statutory jurisdiction of municipal courts, however, need not be exactly coextensive with the statutory jurisdiction of justices of the peace. It may be coextensive with whatever jurisdiction could be vested in justices of the peace. State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915). That is the controlling consideration in this case.

The appellee relies upon two cases, both cited by the circuit judge, holding that a justice of the peace cannot issue process to be served upon a defendant in another county. Markham v. Evans, 239 Ark. 1154, 397 S.W. 2d 365 (1965); Ashby v. Milligan, 126 Ark. 118, 189 S.W. 1059 (1916). Neither case involved a constitutional question, because the Constitution fixes no express territorial limits to the jurisdiction of justices of the peace. Both cases merely construed an 1873 act, still in effect, which provides that the jurisdiction of justices of the peace shall be coextensive with the county and that the venue shall be in the township in which the defendant resides. Ark. Stat. Ann. §§ 26-305 and -301 (Repl. 1962). The important point is that the legislature, in that statute, made no attempt to allow a justice of the peace to issue process against a resident of another county; so we held he could not do so. In a later act, which has never been challenged, the legislature provided that where there are defendants residing in two or more counties, suit may be brought before a justice of the peace in either county, and process may be served outside the county. § 26-304.

To this point we have been discussing the issues raised by the briefs. In our conference, however, it was argued that the Small Claims Procedure Act is concerned only with venue —the place of trial—and was not intended to confer upon a municipal court any personal jurisdiction over nonresidents of the county.

Such an argument is answered by the statute itself. If there is a valid basis for personal and subject-matter jurisdiction, there has never been any reason why the legislature cannot authorize the service of process upon a defendant outside the court’s territorial jurisdiction. The Uniform Interstate and International Procedure Act was enacted for that sole purpose. Ark. Stat. Ann., Title 27, Ch. 25 (Repl. 1979). Act 21 of 1941 accomplishes a similar purpose as to intrastate actions, by providing that in any action which may lawfully be brought only in a particular county, summons may be served on the defendant in any county in the state. § 27-618.

Many statutes similar to the Small Claims Procedure Act, establishing a court’s jurisdiction over person, have been enacted. The Civil Code of 1869 provides that an action for the partition of land must be brought in the county where the land is. § 27-601. The Civil Code did not specifically say that process may be served outside the county, but that practical consequence of venue necessarily exists. It cannot be supposed that an owner of an interest in land in Arkansas is powerless to obtain partition because his cotenant lives in another county. Again, the 1939 Venue Act, which was approved by popular referendum, provides that actions for personal injury or wrongful death shall be brought in the county where the accident occurred or the injured person resided. § 27-610. Only by implication did that act authorize the service of process on a defendant outside the county, but no one would suppose that the legislature meant to destroy the remedy for personal injury or wrongful death unless the wrongdoer could be served within the county fixed as the venue.

The Small Claims Procedure Act does fix venue, but it necessarily contemplates correlative personal jurisdiction. Section 4 of the act, quoted above, expressly states that when a contract is to be performed in a particular county, the suit may be maintained either in that county or in the county where the defendant resides. That section also provides that in an action for an injury to the person or to personal property, either the county where the injury occurred or that where the defendant resides shall be the proper venue. If the statute does not authorize the service of process outside the county, then the language permitting the suit to be brought in either of two counties is meaningless, because it would have been enough to specify the county of the defendant’s residence, which the same section of the act actually does for “all other cases.”

The purpose of the Small Claims Procedure Act is at once apparent and worthwhile. The act deals with municipal courts, which have no necessary connection with county lines. Such a court may sit in a town lying just inside a county line and having a trade area that crosses that line. If a small grocer and his customer have a dispute involving a charge account of a few dollars, they may want the matter settled by the municipal judge without having to employ lawyers. That the grocery is on one side of the county line and the customer on the other is absolutely immaterial. It is certainly not this court’s place to thwart the legislature’s commendable effort to provide a simple procedure for the settlement of such minor disputes.

Reversed.

Fogleman, C.J., dissents.


author: Darrell Hickman, Justice.

text:
    W. H. L. WOODYARD, III, Insurance Commissioner for the State of Arkansas v. ARKANSAS DIVERSIFIED INSURANCE COMPANY
    79-335
    594 S.W. 2d 13
    Supreme Court of Arkansas
    Opinion delivered February 29, 1980
    Rehearing denied March 31, 1980

      Frank B. Sewall, Rick Halinski and Sarah M. Bradshaw, Arkansas Insurance Department, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

The appellant is Arkansas Insurance Commissioner W. H. L. Woodyard, III. The appellee is Arkansas Diversified Insurance Company (ADIC).

ADIC sought a certificate of authority from Woodyard to sell group life insurance to Blue Cross and Blue Shield, Inc. subscriber groups. Woodyard denied the application. On appeal his decision was reversed by the Pulaski County Circuit Court as being arbitrary and not supported by substantial evidnce. We find on appeal the circuit court was wrong and reverse the judgment. We affirm the commissioner.

The only evidence before the commissioner was presented by ADIC. The appellee candidly admitted it was a wholly owned subsidiary of a corporation named Arkansas Diversified Services, Inc. (ADS) which is a wholly owned subsidiary of Blue Cross and Blue Shield, Inc.

The question, to put it simply, is, was the commissioner justified in refusing ADIC’s application. That requires an examination of the evidence, the findings, the statutory law and the rules for reviewing a decision by the commissioner.

ADIC candidly admitted it was created solely to serve Blue Cross customers. It would provide services that could not otherwise be provided by law. While ADS, the parent subsidiary of ADIC and child of Blue Cross, did offer life insurance in conjunction with Blue Cross and Blue Shield plans, the life policies offered were not ADS’s. Some were with American Foundation Life; the rest were with a Mississippi company. ADS wanted its own life company to better compete in the market place.

Blue Cross owns all the stock of ADS, which in turn owns all the stock of ADIC. The president of Blue Cross is the president of both ADS and ADIC. Other Blue Cross officials hold positions in ADS and ADIC. The companies use the same location and similar stationery. ADIC will use Blue Cross employees to sell insurance. Underwriting for ADIC will be done by a division of ADS.

There was no real controversy over the commissioner’s findings of fact. He concluded that:

(2) That Ark. Stat. Ann. 66-4910(d) and 66-2618, would apparently authorize a hospital and medical service corporation to invest in a wholly owned subsidiary insurance corporation with the Commissioner’s consent.
(3) That Blue Cross is limited by Ark. Stat. Ann. 66-4902 to transact business as a non-profit hospital and medical service corporation.
(4) That ADIC is not a separate corporate entity from Blue Cross since Blue Cross through ADS owns all the capital stock of ADIC. ADIC has common Officers and Directors with Blue Cross, Blue Cross pays the salary for the Officers and employees of ADIC, ADIC will sell its products only to Blue Cross subscriber groups and the record indicates that ADIC is to be treated as a division of Blue Cross. The evidence indicates that ADIC’s management will not act independently but will conduct the affairs of ADIC in a manner calculated primarily to further the interest of Blue Cross.

The commissioner, when acting as a hearing officer, is governed by the Administrative Procedure Act. Ark. Stat. Ann. § 5-701 (Supp. 1979). In order for his decision to stand, it must not be arbitrary and must be supported by substantial evidence. These tests are slightly different. Ark. Stat. Ann. § 5-713.

The requirement that administrative action not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. To be invalid, under the former standard, the action must lack rational basis. First Nat. Bank of Fayetteville v. Smith, 508 F. 2d 1371 (8th Cir. 1974) cert. den. 421 U.S. 930, or hinge on a finding of fact based on an erroneous view of the law. Williams v. Celebrezze, 243 F. Supp. 103 (E.D. Ark. 1965). Action is not arbitrary simply because the reviewing court would act differently. Harding Glass Co. v. Ark. Public Service Comm., 229 Ark. 153, 313 S.W. 2d 812 (1958).

Whether a decision is supported by substantial evidence means, is it supported by relevant evidence a reasonable mind might accept as adequate to support a conclusion. Cummins v. Celebrezze, 222 F. Supp. 285 (W.D. Ark. 1963). This determination, we have held, should be made after a review of the whole record. Ark. S. & L. Bd., et al v. Central Ark. S. & L., 260 Ark. 58, 538 S.W. 2d 505 (1976).

The commissioner found that since Blue Cross could not sell life insurance itself, it should not be able to do so through corporate subsidiaries. We find that decision neither arbitrary nor unsupported by substantial evidence.

Blue Cross is essentially a medical service corporation as defined in Ark. Stat. Ann. § 66-4902. Such a corporation must meet the criteria set out in Ark. Stat. Ann. § 66-4905, which reads:

66-4905. Certificate of authority—Requirements.
(1) The Commissioner shall issue an initial certificate of authority authorizing the applicant to issue contracts to its subscribers when it is shown to the satisfaction of the Commissioner that:
(a) The applicant is established as a bona fide, nonprofit hospital service corporation or medical service corporation or combination of the two [2];
(b) The contacts, if any, between the applicant and the participating hospitals or physicians obligate each hospital or physician executing the same to render service to which each subscriber may be entitled under the terms of the contracts to be issued to the subscribers;
(c) The amounts provided as working capital of the corporation are repayable, without interest, out of operating expenses;
(d) The amount of money actually available for working capital is sufficient to carry on the plan for a period of six (6) months from the date of issuance of the certificate of authority; and
(e) The applicant has secured contracts of participation from sufficient hospitals or physicians or both to provide ample protection for its subscribers within the area proposed to be served by the applicant.
(2) The certificate of authority shall expire or terminate and be subject to annual continuation, as provided in section 55 [§ 66-2213] for insurers in general.
(3) The certificate of authority shall be subject to suspension or revocation as provided in sections 56 through 59 [§§ 66-2214—66-2217]
[Acts 1959, No. 148, § 675, p. 418.]

We agree with the commissioner’s finding that this statute limits the power of medical corporations to providing medical service. If it did not, they could not only sell life insurance, but automobiles or anything else. Clearly, an insurance company organized under a charter or statute empowering it to sell one kind of insurance lacks authority to sell another kind. Appelman, Insurance Law and Practice, § 10002 (1945).

The appellees argue that even if the commissioner was right in ruling Blue Cross could not market its own life in surance policies, Blue Cross could, under Ark. Stat. Ann. § 66-4910 (Supp. 1979) and § 66-2618 (Repl. 1966), invest in a wholly owned subsidiary which would. The statutes, however, provide that such an investment can be made only with the commissioner’s consent. While the commissioner may not act arbitrarily, we cannot say he was wrong here simply because he did not question the quality of ADIC’s management or product. Other factors support the commissioner.

Blue Cross is a tax exempt, non-profit corporation enjoying a financial advantage over conventional insurers. Allowing it to sell, through subsidiaries, its own life insurance policies, could be unfair to competitors. While the commissioner did allow Blue Cross to invest in ADS, we can see why he disapproved of ADIC. ADS, unlike ADIC, could sell only policies written by insurance companies which lacked the competitive advantages of Blue Cross.

The appellee argues the commissioner arbitrarily pierced the corporate veil of these subsidiaries and cites the case of Conn. Gen. Life Ins. Co. v. Superintendent of Insurance, 10 N.Y. 2d 42, 217 N.Y.S. 2d 39, 176 N.E. 2d 63 (1961) as authority for upholding the trial court’s decision. In fact, both parties cite it as authority.

In Connecticut General, the New York Court of Appeals held that a state law prohibiting foreign life insurance companies from selling fire insurance in New York did not prevent a foreign life insurance company from buying controlling interest in a New York fire insurance company. Nevertheless, courts will ignore the corporate form of a subsidiary where fairness demands it. See, Aetna Casualty & Surety Co. v. Stover, 327 F. 2d 288 (8th Cir. 1964). Usually, this will be where it is necessary to prevent wrongdoing and where the subsidiary is a mere tool of the parent. Zaist v. Olson, 154 Conn. 563, 227 A. 2d 552 (1967). We believe both criteria were met here. We do not find Connecticut General controlling. The degree of control likely to be exercised there by the parent company was less than what we find here.

Blue Cross, through its president and other officials, candidly admitted why they wanted ADIC to sell insurance. Blue Cross can, through its total control of both subsidiaries by stock, officers and directors, direct all efforts and endeavors of ADIC, and collect all profits.

We cannot say the commissioner was wrong in piercing the corporate veil or in denying the application. The facts are clearly there to support his findings. This order is not contrary to law.

Reversed.

       The standard of review applied to the commissioner’s action depends on the type of certificate sought. Compare this case with that covered in Section 17 of Act 942 of 1979.


author: John I. Purtle, Justice. George Rose Smith, Justice, James F. Stroud, Justice,

text:
    Richard Lee SANFORD v. OTASCO, INC.
    79-243
    590 S.W. 2d 285
    Supreme Court of Arkansas
    Opinion delivered February 19, 1980

      James Carfano, Jr., for appellant.

      Baim, Baim, Gunti, Mouser & Bryant, by: Noel F. Bryant, for appellee.
   John I. Purtle, Justice.

Appellee secured a default judgment on contract against the appellant, who was a resident head of a family, and caused a writ of garnishment to be issued directed to appellant’s employer. The garnishee duly responded that certain wages were being held pending further orders of the court. Appellant filed a schedule and claimed his total wages in the amount of $293.13 as exempt and also the balance of the $500 exemption as head of a household was selected from personal property owned by him. The court held appellant could not schedule any of his wages as part of the $500 exemption allowed by Ark. Const. Art. 9 § 2 because his schedule of personal property was in excess of $500. Appellant appeals from the ruling of the court and alleges Ark. Stat. Ann. § 30-207 (Repl. 1979) is unconstitutional and Ark. Stat. Ann. § 30-209 (Repl. 1979) allowed him to claim his wages as part of his exemption. We do not reach the constitutional question because we agree that appellant should have been allowed to schedule his wages as claimed.

The facts are not disputed. The garnishment was properly issued on the judgment. The garnishee promptly responded that certain wages were being held subject to further order of the court. Appellant then listed his wages due and the personal property owned by him. The property had an unencumbered value in excess of $800. Appellant selected his total wages in the amount of $293.13, plus his automobile valued at $200; together with a $7 equity in a lawn mower as the exemptions allowed by art. 9 § 2. The exemptions were selected using the method set out in Ark. Stat. Ann. § 30-209 (Repl. 1979).

We will first examine art. 9 § 2 which states:

The personal property of any resident of this State who is married or the head of a family, in specific articles to be selected by such resident, not exceeding in value the sum of five hundred dollars in addition to his or her wearing apparel, and that of his or. her family, shall be exempt from seizure or attachment, or sale on execution, or other process from any court on debt by contract.

The constitution simply allows a person to select personal property, having a value not in excess of $500, as exempt from seizure or attachment or sale or execution. Personal property is not defined in the constitutional exemption.

We next examine Ark. Stat. Ann. § 30-209 (Repl. 1979) which reads in part as follows:

Whenever any resident of this State shall, upon the issue against him for the collection of any debt by contract of any execution or other process, of any attachment except specific attachment against his property, desire to claim any of the exemptions provided for in Article 9 of the Constitution of this State, he shall prepare a schedule, verified by affidavit, of all his property, including moneys, rights, credits and choses in action held by himself or others for him and specifying the particular property which he claims as exempt under the provisions of said article,. . . Provided further that, if in any such schedule, it shall appear that the debtor has more property in value than is exempt by law, he shall select his exemptions, and the remainder of such property shall be subject to the levy of the execution, whether the same be included in any former schedule or not. . . .

This statute specifically refers to the procedure for scheduling exemptions mentioned in art. 9 § 2. Money is specifically mentioned as property which may be scheduled. This statute further states that when the property listed exceeds $500 the remainder of the property is subject to levy of execution or garnishment.

We also consider Ark. Stat. Ann. § 30-207 (Repl. 1979) which reads partially as follows:

(a) The wages of all laborers and mechanics, not exceeding their wages for sixty (60) days, shall hereafter be exempt from seizure by garnishment, or other legal process. Provided that, the defendant in any case shall file with the court from which such process is issued a sworn statement that the said sixty (60) days’ wages, claimed to be exempt, is less than the amount exempt to him under the Constitution of the State, and that he does not own sufficient other personal property, which, together with the said sixty (60) days’ wages would exceed in amount the limits of said constitutional exemption. ... If the claim of exemption is not valid either in whole or in part, then the garnishment proceedings shall be stayed only as to such amount as the court may determine. . . .

Apparently, this statute intended to apply to persons who owned little, if any, personal property other than wages due for services performed. However, the statute continues and allows other property to be scheduled, provided the property and wages together do not exceed $500. Again the statute provides that property above the $500 claimed as exempt is subject to garnishment proceedings.

Both statutes and the constitution allow the debtor to select the items which he wishes to claim as exempt. We find nothing in any of these provisions which would prohibit a debtor from selecting money or wages due as part or all of his exemptions. Likewise, there is no reason why the debtor cannot schedule both money and property as exempt so long as the total does not exceed the $500 limit. We have held that laws relating to exemptions are to be liberally construed in favor of the debtor. Pemberton v. Bank of Eastern Arkansas, 173 Ark. 949, 294 S.W. 64 (1927). We have also held that funds in the hands of a garnishee are subject to being scheduled as exempt even after the funds in the hands of the garnishee have been reduced to judgment. Blass v. Erber, 65 Ark. 112, 44 S.W. 1128 (1898). The General Assembly has the power to direct the method by which exemptions should be established. Andrews v. Briggs, 203 Ark. 714, 158 S.W. 2d 269 (1942). The General Assembly has designated the method to be used for scheduling by enacting Ark. Stat. Ann. § 30-209 (Repl. 1979). It was proper for appellant to amend his schedule of exemptions. Williams v. Swann, 220 Ark. 906, 251 S.W. 2d 111 (1952).

We do not find it necessary to rule on the constitutionality of Ark. Stat. Ann. § 30-207 in view of our opinion that the appellant properly and legally claimed both money and personal property in his schedule as provided by Ark. Stat. Ann. § 30-209 and art. 9 § 2 of the constitution. Both of the above statutes clearly state that whatever the debtor has above the $500 exemption remains subject to levy, execution, garnishment or other process. Therefore, it is not necessary for the creditor to obtain any additional writ because the writ of garnishment properly applies to any of the appellant’s scheduled property above the $500 exemption.

Reversed and remanded with directions for the trial court to allow the appellant to schedule his exemptions in conformity with the reasons stated above.

Reversed and remanded.

George Rose Smith and Hickman, JJ., concur.

Stroud, J., dissents.

George Rose Smith, Justice,

concurring. I concur in the reversal on the ground that Section 30-207 is unconstitutional in that it denies a debtor the right to claim his wages as exempt only if he does not own sufficient other property which, together with his wages, would exceed the constitutional exemption. As I read Article 9, Section 2, of the Constitution, the debtor has an absolute right to select the particular personal property, including wages, that he wishes to claim as exempt.

Hickman, J., joins in this concurrence.

James F. Stroud, Justice,

dissenting. Construing Ark. Stat. Ann. §§ 30-207 and 30-209 (Repl. 1979) liberally in favor of the debtor, I still cannot reach the conclusion that the debtor may claim all of his wages as exempt when those wages together with his other personal property exceed $500.00 in value. Ark. Stat. Ann. § 30-207 is unmistakably clear that for wages (not exceeding 60 days wages) to be exempt from garnishment or other legal process, they must not exceed the constitutional exemption when added together with the value of the other personal property of the debtor.

These two statutes must be reconciled, as they were simultaneously adopted as a part of the same act, Ark. Stat. Ann. § 30-207 being Section 1 of Act 164 of 1953, and Ark. Stat. Ann. § 30-209 being Section 2 of the same act. Ark. Stat. Ann. § 30-207 sets out the requirements for the exemption of wages, and Ark. Stat. Ann. § 30-209 sets out a method of claiming the constitutional exemption by the filing of a schedule. The two statutes are reconcilable only if the reference in the latter statute to “moneys, rights, credits and choses in action” is construed to include wages only when the wages and other personal property of the claimant do not in the aggregate exceed $500.00. I do not believe the Arkansas General Assembly intended to repeal Section 1 of Act 164 of 1953 by the adoption of Section 2 of the same act.

This construction is not violative of Article 9, Section 2 of the Arkansas Constitution as contended by appellant. As was pointed out in Andrews v. Briggs, 203 Ark. 714, 158 S.W. 2d 269 (1942):

. . . that although the constitution does not prescribe the method of selecting property claimed to be exempt from execution, authority was vested in the legislature to regulate the claim.

These two statutes are a valid exercise of that right by defining what personal property may be claimed as exempt, under what circumstances the property may be claimed as exempt, and how the property may be claimed as exempt.

I would affirm the trial court.


text:
    Nancy M. BETHELL v. John P. BETHELL, Jr.
    79-332
    609 S.W. 2d 894
    Supreme Court of Arkansas
    February 19, 1980
   PER CURIAM

The motion of appellee to submit a responsive brief is denied. Appellee in his motion correctly quotes the recent revision of Rule 29, subsection 6, adopted on December 17, 1979, which in part provides: “Fourteen additional copies of the briefs previously filed shall be filed with the Clerk within two weeks after such notification.” Our rule contemplates that the briefs filed with this court shall not be revised, but shall be the same as those filed with the Court of Appeals. Appellee contends that the brief filed by appellant in the Arkansas Supreme Court contains new points and arguments and is an entirely different document from the brief filed by appellant in the Court of Appeals. Appellee is mistaken. The brief filed by appellant in the Court of Appeals on July 20, 1979, is identical to the brief filed by appellant in the Supreme Court on January 17, 1980.


author: John A. Fogleman, Chief Justice. Darrell Hickman, Justice,

text:
    Jack FILES v. Woodrow HILL et al T. K. ARNOLD, III, As An Individual and As A Class Representative v. STATE BOARD OF ELECTION COMMISSIONERS et al
    79-254
    594 S.W. 2d 836
    Supreme Court of Arkansas
    Opinion delivered February 25, 1980
    Rehearing denied March 31, 1980

      Wright, Lindsey & Jennings, for appellant.

      Philip K. Lyon and Donald H. Henry, for appellee, Lee Munson.

      Steve Clark, Atty. Gen., by: David L. Williams, Asst. Atty. Gen., for appellee Pulaski County Board of Election Commissioners.
   John A. Fogleman, Chief Justice.

This case involves appeals in two cases which were consolidated for trial because both involve issues arising from the election of a chancellor for Position 1 in Judicial District 6 at the general election held on November 7, 1978. Jack Files filed the first one against Lee Munson, who was certified as the successful candidate, and the Perry County and Pulaski County Boards of Election Commissioners. Files asked that the votes in the election be recounted and that he be declared the winner of the election or that the election be set aside. The second was a suit brought by T. K. Arnold, III, a voter in the general election, as a class action for a declaratory judgment that the certification of the results of the election were null and void and for writs of mandamus to restrain the Secretary of State from canvassing the election returns and the Governor from issuing a commission to Munson, and to require the Pulaski County Board of Election Commissioners to conduct a new election for the office. In the alternative, Arnold asked that the office be declared vacant and filled under Amendment 29, § 1 of the Constitution of Arkansas.

The trial court sustained general demurrers in both cases and dismissed the complaints. We agree that neither complaint stated a cause of action and affirm.

Files made the following allegations in his amended and substituted complaint:

Munson was the Democratic candidate and Files a duly qualified write-in candidate for Chancellor of District 6, Position 1. The Perry County Board of Election Commissioners certified the results showing that Munson received 1,246 votes and Files, 331 votes on the day after the election and Files did not have an opportunity to demand a recount prior to the certification. Files alleged that ballots properly cast for him in Perry County were not counted and that the action of the board and the election officials constituted fraud. The Pulaski County Board of Election Commissioners recounted the votes in Pulaski County at Files’ request, and certified that Munson had received 23,320 votes and Files 22,504 votes. Files actually received 609 votes that the Pulaski County Board refused to count so that the total vote actually cast for Files was 23,113. Files had received reports from hundreds of voters complaining about the manner in which the election was conducted in Pulaski County. The following is a list of some of the problems that prevented electors from casting their ballots in favor of Files:
A. Instructions concerning write-in votes were not sufficiently clear.
B. Pencils were not furnished for the convenience of voters.
C. Voting machines did not function properly and it was impossible for many voters to cast a write-in vote for plaintiff Files.
D. Voters were instructed that long lines waiting at the polls were caused by write-in voters and that electors could vote more quickly by using machines that were not functioning to accept write-in votes.
E. Instructions for voting for write-in candidate Files were given by election officials, resulting in ballots not being counted although the instructions were followed.
F. Electors, attempting to vote for plaintiff Files and following instructions of election officials, wrote plaintiffs name on masking tape, and on parts of the voting machine in an effort to cast votes for plaintiff Files, with the result that said votes were not counted.
G. In some instances it was physically impossible for a voter to cast his ballot for plaintiff Files on a voting machine.
A total of 1,522 persons who were registered voters in Pulaski County either advised Files by telephone, or in writing, or executed affidavits attesting that, although they were present at the polling places making every reasonable effort to case a ballot for Files, they were unable to do so. If all the electors desiring to do so, and presenting themselves at the polls had been permitted to cast ballots for Files and if all such ballots were counted, Files would have been declared elected.
During election day, Files made a complaint to the Pulaski County Board of Election Commissioners and requested, pursuant to Ark. Stat. Ann. § 3-1231 (Repl. 1976), that paper ballots be made available in order that electors might vote, but the request was refused.
Because of all the irregularities in the election which prevented Files from being elected chancellor, in the event the court believes it is unable to declare Files the winner of the election, another election ought to be held in Pulaski County, or, because so many electors were denied their constitutional rights under Art. 3, § 2, of the Constitution of Arkansas to participate in a free and equal election, the result of the election is uncertain, and it is impossible to determine who would have been selected in a free election.

Munson filed an answer, demurrer and motion to strike. He denied that the suit was properly instituted in accordance with Ark. Stat. Ann. § 3-1001 et seq (Repl. 1976) in that: the complaint was not properly verified by affidavit, and the plaintiff did not list the names of persons who actually cast ballots for Files which were not counted; the court was without jurisdiction to grant any of the relief requested due to defects in the complaint; and the complaint did not state facts sufficient to constitute a cause of action for the relief sought.

Before taking up the propriety of the trial court’s action on the demurrer, we point out that we consider the allegations appearing on the face of the complaint only. Spaulding Mfg. Co. v. Chaudoin, 87 Ark. 418, 112 S.W. 1087.A demurrer does not admit any facts that are not well pleaded. Potter v. Citty, 257 Ark. 276, 516 S.W. 2d 597; Palmer v. Cline, 254 Ark. 393, 494 S.W. 2d 112; Caldwell v. St. Louis Joint Stock Land Bank, 187 Ark. 832, 62 S.W. 2d 39. See also, Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476; United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S.W. 2d 547; Wilburn v. Moon, 202 Ark. 899, 154 S.W. 2d 7. Legal conclusions are not admitted by demurrer. May v. Ryder Truck Rental, Inc., 264 Ark. 751, 574 S.W. 2d 264; United Interchange Inc. v. Rowe, supra; Seubold v. Fort Smith Special School District, 218 Ark. 560, 237 S.W. 2d 884; Main v. Drainage District No. 2, 204 Ark. 506, 162 S.W. 2d 901; Wilburn v. Moon, supra. A hearing, at which evidence was introduced, was held, according to an opening statement by Files’ attorney, to familiarize the court with the nature of plaintiffs complaint and the operation of voting machines, but Files agreed that proceeding with the hearing did not constitute a waiver of the demurrer of the defendants. None of the evidence produced at this hearing can be considered on this appeal. Hoggard & Sons Enterprises, Inc. s. Russell Burial Ass’n., 255 Ark. 576, 501 S.W. 2d 613.

In considering whether Files stated a cause of action, it must be remembered that election contests are governed entirely by statute. See Reed v. Baker, 254 Ark. 631, 495 S.W. 2d 849. The statement of generalities and conclusions of law is not sufficient to state a cause of action. Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306. A pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action. Hill v. Williams, 165 Ark. 421, 264 S.W. 964; Robinson v. Knowlton, 183 Ark. 1127, 40 S.W. 2d 450.

When the complaint of Files is stripped of generalities and conclusions, the remaining allegations fail to show that the result of the election should have actually been different. The returns showed that, in the two counties, Munson received a total of 24,566 votes and Files, a total of 22,835. The difference amounted to 1,731. Assuming, but not deciding, that the votes of the 1,522 persons named who said they offered to vote for Files but were unable to do so were counted as legal votes, Munson would still have 209 more votes that Files. The question then turns upon the only other allegation made as to any specific number of votes. This allegation was:

The Pulaski County Board of Election Commissioners has recounted the votes in Pulaski County, at the request of the plaintiff, and has now certified the results as official on Tuesday, November 13, 1978, declaring that Lee Munson had received 23,320 votes and Jack Files had received 22,504 votes. The plaintiff, Jack Files, actually received 609 votes that the Pulaski County Board of Election Commissioners refused to count for him, so that the total vote actually cast for Jack Files was 23,113.

Nowhere in the complaint were the 609 votes or voters identified in any manner. There was not even any suggestion as to the precinct or precincts in which these votes were cast. The statement of this conclusion without any identification of either the vote or the voters is not a sufficient factual allegation to state a cause of action. See Jones v. Etheridge, supra; McClendon v. McKeown, 230 Ark. 521, 323 S.W. 2d 542; Crawford v. Harmon, 149 Ark. 343, 232 S.W. 427.

There are no allegations in the complaint that bring this case within the purview of Govan v. Jackson, 32 Ark. 553, where the judges in one precinct had failed to canvass the returns of one box, or Dixon v. Orr, 49 Ark. 238, 4 S.W. 774, where the ballots had been counted in a particular precinct, but the returns had been stolen, lost or destroyed and those voters who participated were permitted to testify for whom their ballots had been cast.

Files also contends that he was prepared to show that the malfunctioning of voting machines and the failure of election officials to provide replacements were so pervasive that the certified result of the election is unreliable and the actual result uncertain, relying upon Patton v. Coates, 41 Ark. 111. Apparently, Files relies upon the alleged list of problems A through G set out hereinabove. These allegations are mostly statements of conclusions. They seem to relate to the 1,522 persons listed on exhibits to Files’ complaint. There is no specification as to the precincts where the specific problems existed. They certainly are not adequate statements of facts to indicate a clear and flagrant wrong, in its nature diffusive in influences, calculated to effect more than can be traced and sufficiently potent to render the result so uncertain as to defeat a free election, as would be necessary under the rule stated in Patton v. Coates, supra. As stated in that opinion, if the wrong be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes or the supply of particular legal votes rejected. So far as the allegations in this complaint go, they would justify at most only the addition of the particular votes of the 1,522 persons listed. Furthermore, the results reached in Patton would not have been reached had it not been for the elements of threats and acts of violence. Jones v. Glidewell, 53 Ark. 161, 13 S.W. 723, 7 LRA 831. Neither is there any allegation of coercion, which was essential to the holding in Jones.

Arnold sought to have the actions of the Boards of Election Commissioners of the State of Arkansas and of Pulaski . County and Perry County declared to be violative of Arkansas law and to have operated to deprive him, a citizen and resident and eligible voter of Pulaski County, and other persons, known and unknown, who were similarly situated, of their right to vote secured by the Fourteenth Amendment to the United States Constitution and Art. 3, § 2 of the Constitution of Arkansas. He also sought writs of mandamus to restrain the Secretary of State from canvassing the returns in the election for the office of Chancellor of District 6, Position 1, to restrain the Governor from issuing a commission for that office and to order the Pulaski County Board of Election Commissioners to conduct a new election for the office. In the alternative, he asked that the office be declared vacant. The demurrers of the Governor and of the Secretary of State were sustained and the complaint dismissed as to them. No notice of appeal from this order was filed within 30 days. Demurrers filed by the Boards of Election Commissioners were sustained and the complaint dismissed.

One of the grounds of the demurrers was that there was a defect of parties. Although the trial court did not address that ground, the sustaining of the demurrer was correct because neither Munson nor Files was made a party to the proceeding. Ark. Stat. Ann. § 34-2510 (Repl. 1962) requires that all persons who have or claim any interest which would be affected be made parties when declaratory relief is sought. Certainly Munson’s interest would be drastically affected by such a proceeding. Failure to include such a party is fatal to a declaratory judgment action. Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21; Laman v. Martin, 235 Ark. 938, 362 S.W. 2d 711. See also, McFarlin v. Kelly, 246 Ark. 1237, 442 S.W. 2d 183. Such a defect is reached by demurrer when it appears upon the face of the complaint, as it does here. Cairns v. Witt, 242 Ark. 735, 415 S.W. 2d 47; Block v. Allen, supra.

The action by Arnold can hardly be described as anything except an election contest, even though he protests that it is not, because he was not a candidate. An action to invalidate the results of an election is an election contest. Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476; Curry v. Dawson, 238 Ark. 310, 379 S.W. 2d 287. When there is a putative winner in an election, the mere fact that one bringing suit only seeks to have the election declared void and does not seek the office for himself, or even for the candidate he espouses, does not keep the proceeding from being categorized as an election contest. Witten v. Sternberg, 475 S.W. 2d 496 (Ky., 1971). See also, State v. Baxter, 28 Ark. 129. Ordinarily, it is no valid objection, in an election contest, that legal votes were rejected, if they were not numerous enough to overcome the majority. Swepston v. Barton, 39 Ark. 549

Arnold contends that the election should be voided on the basis of Art. 3, § 2 of the Arkansas Constitution, providing that elections shall be free and equal, and that no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage. He argues that this constitutional provision is self-executing and that, in the absence of legislative action to establish a procedure for enforcement of the rights established, the court may proceed according to the common law. He then asserts that mandamus is an appropriate common law remedy that a voter may pursue to enforce that right. We have several difficulties with appellant’s approach. A major one is that mandamus may not be used to confer power or authority that does not otherwise exist or to direct one to do that which he has no power or authority to do. Unless it clearly appears that the one to whom the writ is directed has the power to do that which is directed, it should not be issued. Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979). The Board of Election Commissioners has no power to call or hold a new election and for the court to direct it to do so would be to confer a power that does not exist. See McFarlin v. Kelly, supra; McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954; Langston v. Johnson, 255 Ark. 933, 504 S.W. 2d 349. Furthermore, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. McFarlin v. Kelly, supra.

Arnold asserts, however, that the court has the power to declare the election void and the office vacant. He argues that malfunction of the voting machines effectively excluded and rejected the votes of members of the class composed of those who wanted to vote for Jack Files by write-in ballot and thus was analogous to cases where there was discrimination on account of race.

Arnold’s allegations were that the voting machines used in the election would not perform their function of registering all lawful votes cast in the election for Files, and that the commission failed to be ready to deliver paper ballots, ballot boxes or replacement machines upon notice that a voting machine was out of order or failed to work, and that the election commissioners received notice that numerous machines were out of order or failed to work to record votes for Files. The specification of difficulties encountered by Arnold and his class was identical to those stated in Files’ complaint. There is no allegation that the result would have been different if the votes of Arnold and the class he represents had been counted.

The authority relied upon by Arnold for voiding the election, even in the absence of any allegation that the result would have been different had the votes of all his class been counted, is Bell v. Southwell, 376 F. 2d 659 (5 Cir., 1967). That action was brought as a class action by the defeated candidate. Voting lists and voting booths were racially segregated. The racial discrimination was described as state-imposed and state-enforced, gross, unsophisticated, significant and obvious and its nature as gross, spectacular and completely indefensible. Arnold’s allegations do not bring this case within the category dealt with in Bell. There is no allegation that the malfunctions of the voting machines or the failures of the election officials to provide remedies were fraudulent, or an intentional or deliberate effort to disenfranchise any voters or to discriminate against anyone. We do not find Bell persuasive here. Cf. Crawford v. Harmon, 149 Ark. 343, 232 S.W. 427; Sims v. Holmes, 191 Ark. 1033, 88 S.W. 2d 1012.

Arnold also relies upon Foulkes v. Hays, 85 Wash. 2d 629, 537 P. 2d 777 (1975). That case is quite different. The governing statutes as to the powers of the court there are broader than ours. Equity jurisdiction was exercised there and was proper under the Washington constitution. In Arkansas, equity has no jurisdiction of any case involving the right to vote, or any political right, even where fraud is alleged. Catlett v. Republican Party, 242 Ark. 283, 413 S.W. 2d 651; Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C 980; Hester v. Bourland, 80 Ark. 145, 95 S.W. 992; Hutto v. Rogers, 191 Ark. 787, 88 S.W. 2d 68; Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002. There is no allegation, however, in Arnold’s complaint that anyone acted fraudulently. Arnold relies entirely on the assertion that an unknown number of people were deprived of their right to vote for Files as a ground for voiding the election. Nowhere in Arnold’s complaint does he allege that the irregularities enumerated were sufficient to render the outcome of the election really uncertain and such an inference drawn from those allegations would be strained indeed. Assuming that he and his class had standing to bring the suit, his allegations did not state a cause of action. Baker v. Hedrick, 225 Ark. 778, 285 S.W. 2d 910. In the cited case, we pointed out that it was a serious matter to void an entire election. We also stated that we had held in Patton v. Coates, 41 Ark. 111, that, in order to do so, the wrong must be clear and flagrant, diffusive in its influences, calculated to effect more than can be traced and sufficiently potent to render the result clearly uncertain. Otherwise, the court cannot safely proceed beyond the exclusion of particular illegal votes or the supply of particular legal votes rejected. It is desirable that election returns have a high degree of stability and finality. Reed v. Baker, 254 Ark. 631, 495 S.W. 2d 849. An election should not be voided for any wrong less grave than that described in Patton. The purpose of any contest of an election is to determine which candidate received the greatest number of votes, and we have held that exclusion of votes, even if erroneous, is not prejudicial unless there is a showing that, if counted, those would materially affect the result in an election contest. Horne v. Fish, 198 Ark. 79, 127 S.W. 2d 623. Appellant’s allegations do not establish that the result was really uncertain or name any particular votes, except his own, which could have been supplied in the proceeding. This would not be sufficient to justify the court in setting aside the election. See Wilson v. Ellis, 230 Ark. 775, 324 S.W. 2d 513.

There is no constitutional or statory authority for one in the status of Arnold to bring this suit. Even though it was attired in declaratory judgment raiment, the action was, in fact, an election contest, which is a special proceeding authorized only in accordance with constitutional or statutory provisions. Curry v. Dawson, 238 Ark. 310, 379 S.W. 2d 287; Baxter v. Brooks, 29 Ark. 173. See also, Storey v. Looney, 165 Ark. 455, 265 S.W. 51.

The judgment is affirmed.

Hickman, J., concurs.

Mays, J., not participating.

Darrell Hickman, Justice,

concurring. I agree that the appellant’s claim must fail for the reasons given by the majority. In an election contest one must be able to demonstrate that the results will be different; in the suit filed by Jack Files, admittedly there are not enough alleged votes for him to make a difference. It could only be that Files’ suit, added with the suit of Arnold, alleging generally other votes for Files, that a valid contest would exist, and the complaint of Arnold must fail for the reasons given by the majority.

However, the majority opinion in my judgment fails to answer certain questions raised in this case which ought to be answered. Quite often in matters of public interest we rule on issues even though they may have become moot. Cain v. CarlLee, 171 Ark. 155, 283 S.W. 365 (1926).

The first issue is how do you make a case in an election contest where voting machines are used. Specifically, since the people who attempt to write in a name are unable to do so, is an affidavit signed by those people sufficient under the Arkansas law to set up an election contest? Usually election contests present a question of a voter’s ballot being voided; there exists a ballot, evidence of a vote, to count or not count. The appellee argues that Files’ complaint should be dismissed because there is no evidence of votes cast. If the appellee is correct, then a person qualifying as a write-in candidate in a county that uses voting machines might never be able to successfully challenge an election; there are no paper ballots when machines are used and usually all you may have is a statement by voters that they tried to vote. I am of the view that, in terms of procedure, the appellant did file a proper complaint for an election contest.

The second question that we should answer is regarding the use of voting machines and the failure of those machines in an election like that before us. This election was very close. There is too much evidence of the failure of the machines or irregularities in the election process to ignore. In some instances tape was placed over the slot in the machines where Files’ name was supposed to have been written in; in other instances there is evidence that the machines were jammed in some way, voters being unable to write in Files’ name. The evidence of these irregularities is sufficient in my judgment to justifying our defining the rights of a write-in candidate in a county that uses voting machines.

I am one of those people who are suspicious of most all machines. It has been my experience machines tend to fail you when you need them most. I realize such an attitude is anathema to engineers and such people, however, this case is a good example of just such a failure. The voting machines used were not designed with a write-in candidate in mind and they failed in this instance to provide the write-in candidate a fair chance. It is our duty to see that the state’s valid and compelling interest in the fairness, efficiency and the orderly operation of its election machinery, as well as the integrity of the electoral process is protected. Walker v. Jackson, 391 F. Supp. 1395 (E.D. Ark. 1975).

A write-in candidate does not have much of a chance anyway, as everyone in politics knows. In a case such as this where the election is close, it is especially frustrating to the loser who happens to be a write-in candidate. I do not expect the voting machines to function any better in future elections. Consequently, the question we should answer is, what remedy, if any, should be available to future candidates? I have concluded there must be an alternative to the machines. Paper ballots ought to be furnished. I know of no other satisfactory alternative. Although the proponents of voting macines would probably disagree, there is enough evidence of failure by people, the process, or the machines in this case to convince me that an alternative should exist to preserve the integrity of our electoral process.

I do not mean to say write-in candidates are entitled to anything special. They are not. In fact, the law is pretty well designed to discourage write-in candidates but the law should not make it virtually impossible for a write-in candidate to get elected.

While I agree with the results the majority reaches, I respectfully suggest that it has failed to address the most important issues in this case so far as the law is concerned.

       We are not unaware of the rather ambiguous statement in Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449, that might be taken to support an argument that oral evidence might be heard in testing the sufficiency of allegations in a complaint on demurrer. The statement in Simms followed a reiteration of the rule that when conclusions must be drawn from the evidence the issue is one for the jury. Then the court said: “Certainly in testing, on demurrer, the sufficiency of the allegations in the complaint as regards status, the analogy would be that evidence should be allowed to clarify the allegations.***” The statement was followed by a restatement of the rule that, on demurrer, the complaint, with all reasonable inferences deducible therefrom, is to be construed most strongly in favor of the plaintiff. There are many reasons, when considered collectively, that the statement is not authoritative. They are: the statement, supposedly based upon one preceding it and another following it, is a non sequitur; it is not supported by the citation of any authority; there is an absence of any Arkansas authority to support it; it appears to be dictum - the case involved the propriety of sustaining a demurrer, but oral evidence was not considered; the decision was by a court divided 4-3; and it has never been cited as authority for considering oral evidence in testing the sufficiency of allegations of a complaint on demurrer. To the extent that the statement might be taken as authority for hearing evidence on demurrer, it is overruled. Under the Rules of Civil Procedure, effective July 1, 1979, demurrers were abolished but questions theretofore reached by general demurrer may be raised by motion. See Rule 12(b)(6).


author: John A. Fogleman, Chief Justice.

text:
    Dunavant Mason BOYLES v. Doris Cathryn Rowlett BOYLES
    79-276
    594 S.W. 2d 17
    Supreme Court of Arkansas
    Opinion delivered February 25, 1980

      Jake Brick, for appellant.

      Clint Saxton of Rubens, Rubens & Saxton, for appellee.
   John A. Fogleman, Chief Justice.

Appellant seeks relief from the payment of alimony awarded by the chancery court in a decree entered May 1, 1969, on the basis that Ark. Stat. Ann. § 34-1211 (Repl. 1962) is unconstitutional in the light of the decision of the United States Supreme Court in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), and that of this court in Hatchery. Hatcher, 265 Ark. 681, 580 S.W. 2d 475. The chancery court denied appellant this relief because his plea of unconstitutionality was too late to take advantage of the cases upon which he relies. We agree and affirm.

Appellee was granted a divorce from appellant by decree dated May 1, 1969. In that decree, appellant was ordered to pay $400 per month as alimony. At the time of the award, it could only have been based upon Ark. Stat. Ann. § 34-1211, because the inherent powers of a chancery court to award alimony had certainly not developed beyond an early embryonic stage. The record on appeal begins with that decree, but we feel confident in saying that appellant did not then raise the issue of unconstitutionality of the statute. Not only are his own subsequent pleadings indicative of the fact that he had not raised this question, but the decree from which this appeal arises contains a recital that appellant had not questioned the constitutionality of the statute prior to March 7, 1979. If the recital of the decree was not correct, we are confident appellant would have produced a record which demonstrated error in that statement. It was his burden to do so. Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979).

On January 22, 1979, the chancery court entered an order awarding appellee judgment for $1,800 arrearages in alimony payments, modifying the decree to reduce the alimony to $300 per month, holding appellant in contempt for failure to comply with an order of May 18, 1977 (not abstracted if it is included in the record), and ordering appellant to appear before the court on March 7, 1979, for sentencing on the finding of contempt. We can safely deduce that appellant had not, prior to the order of January 22, 1979, questioned the constitutionality of the statute. He raised the cry of unconstitutionality as closely on the heels of the decision in Orr on March 5, 1979, as one might be expected to react to that decision, by filing his petition for reconsideration of all the court’s orders pertaining to alimony on March 7, 1979. The chancery court continued the matter until April 18, 1979, the date on which the decree before us on appeal was rendered. It appears from the decree that appellant had filed a motion on April 16, 1979, for review of the orders of the chancery court concerning the allowance of alimony. That motion is not abstracted but the decree reveals that appellant pleaded that Ark. Stat. Ann. § 34-1211 was unconstitutional under the Orr decision because the statute provided only for the payment of alimony to the wife and made no provision for a needy husband. It is also clear from the decree that appellant asked that he be relieved of either the future payments ordered by the chancery court on January 22, 1979 or the arrearages in regard to alimony, or both.

The chancellor held that § 34-1211 was unconstitutional under Orr because, by imposing alimony obligations on husbands, but not wives, it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Any doubt about the correctness of that decision has been laid to rest by our decision in Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980). The chancellor held, however, that the order of January 22, 1979, was binding upon appellant by reason of his failure to raise the question of constitutionality prior to the entry of that order.

We have no hesitation in holding that the chancery court ruled correctly. Appellant’s argument that an unconstitutional statute is void from the date of its enactment is actually beside the point. The reason is that rights under an unconstitutional statute may have become vested. Certainly, where a judgment is based upon rights conferred by a statute later declared unconstitutional, the doctrine of res judicata bars the relitigation of the case in which it was rendered, or the reopening of the judgment after it has become final. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L. Ed. 329 (1940).

We recognize that, if the rights of appellee were dependent solely on the statute, she might have no vested rights, because we have held that no rights can be predicated upon an unconstitutional statute, because it must be treated as if it had never been passed. Road Improvement District No. 4 v. Burkett, 163 Ark. 578, 260 S.W. 718; Morgan v. Cook, 211 Ark. 755, 202 S.W. 2d 355; State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S.W. 2d 340; Cochran v. Cobb, 43 Ark. 180. In this case, however, appellee’s rights were vested by a decree of the chancery court, not by the statute, so the holdings in cases just cited are not controlling. The issue actually turns upon the effect of the chancery court decrees and orders.

Appellant recognizes the impact of the doctrine of res judicata, but argues that it is inapplicable, because alimony is a continuous allotment of sums, payable by a husband at stated and proper times, for the support of a wife, from year to year, continuing only during the joint lives of the parties or until the wife marries again, which should be reasonable and certain, having in regard her station in life, and his estate and income, but that it was always, and is now, subject to modification because of changed circumstances. See Birnstill v. Birnstill, 218 Ark. 130, 234 S.W. 2d 757. Appellant takes the position that, since the award of alimony becomes a judgment only after judgment has been rendered for delinquency in payment, it cannot be res judicata, as to future installments of alimony. In his case, he contends that the decree for alimony is not res judicata, at least as to installments coming due after April 16, 1979, when he squarely raised the constitutional issue.

It is quite clear that in both Orr and Hatcher it was recognized that not every decree for the payment of alimony would be invalidated by the decision in Orr. The decree in Orr itself was remanded in order that the Alabama courts might decide whether any grounds of gender neutral state law bound the husband to continue the alimony payments involved there.

It would be grossly inequitable to strike the provision for alimony from a decree such as the one before us now, where the allowance of alimony was but one element, which undoubtedly was arrived at after taking into consideration the fact that appellee was also awarded one-third of appellant’s personal property and possession of all household furniture and a dwelling house or property held by the parties as an estate by the entirety. In fixing the amount of alimony, the courts consider many factors. Among them are the financial circumstances of both parties, the financial needs and obligations of both the couple’s past standard of living, the value of jointly owned property, the amount and nature of the income, both current and anticipated, of both husband and wife, the extent and nature of the resources and assets of each of the parties, the amount of income of each that is “spendable,” the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses, the earning ability and capacity of both husband and wife, property awarded or given to one of the parties, either by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of health and medical needs of both husband and wife, the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both, the duration of the marriage and even the amount of child support. Evans v. Evans, 263 Ark. 291, 564 S.W. 2d 505; Raney v. Raney, 262 Ark. 747, 561 S.W. 2d 287; Reagan v. Reagan, 255 Ark. 458, 500 S.W. 2d 754; Rose v. Rose, 254 Ark. 605, 495 S.W. 2d 524; Bower v. Bower, 251 Ark. 953, 476 S.W. 2d 8; Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505; Dingledine v. Dingledine, 258 Ark. 204, 523 S.W. 2d 189; Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193; Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998; Johnson v. Johnson, 165 Ark. 195, 263 S.W. 379; Howard v. Howard, 252 Ark. 189, 477 S.W. 2d 838; Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631; White v. White, 228 Ark. 732, 310 S.W. 2d 216; Webb v. Webb, 262 Ark. 461, 557 S.W. 2d 878; Kelly v. Kelly, 264 Ark. 865, 575 S.W. 2d 672; Alexander v. Alexander, 241 Ark. 741, 410 S.W. 2d 136; Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311; Mickle v. Mickle, 252 Ark. 468, 479 S.W. 2d 563; Berger v. Berger, 222 Ark. 463, 261 S.W. 2d 259; Ray v. Ray, 192 Ark. 660, 93 S.W. 2d 665; Strang v. Strang, 258 Ark. 139, 523 S.W. 2d 887; Foster v. Foster, 216 Ark. 76, 224 S.W. 2d 47; Hoyt v. Hoyt, 249 Ark. 266, 459 S.W. 2d 65; Childers v. Childers, 229 Ark. 11, 313 S.W. 2d 75; Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339. The factors named are not all those that may properly be considered but they are illustrative of the fact that there is an interrelationship between all the issues in a divorce, and the circumstances considered are not all gender based. The award of alimony is only one of the factors.

A relationship between alimony and property division has been at least tacitly recognized in many cases. See, Childers v. Childers, supra; Riegler v. Riegler, supra; Strang v. Strang, supra; Dennis v. Dennis, supra; Knopf v. Knopf, supra. That relationship is quite apparent in cases in which allowances of alimony have been made, denied or influenced by reason of concealment of assets, or their disposition, by one party or the other. See Berger v. Berger, supra; Rose v. Rose, supra. It is also obvious where the amount received by a wife in a previous property settlement was considered in deciding whether there was an abuse of the trial court’s discretion in fixing the amount allowed for alimony. See Foster v. Foster, supra; Ray v. Ray, supra. Extraction of alimony from a previous decree after expiration of the term in which it was rendered would be exceedingly difficult.

It is true that an award of alimony is neither a final decree, in the sense that an execution may be issued or that it becomes a lien on real estate, nor a final determination of the rights of the parties, in the sense that it prevents review should there be a change in the circumstances of the parties. Jones v. Jones, 204 Ark. 654, 163 S.W. 2d 528. The chancery court may modify an award of alimony from time to time, but the power is to be exercised to meet changes in the relative circumstances of the parties. Warren v. Warren, 215 Ark. 567, 221 S.W. 2d 407. If there is no change in the situation of the parties, the court has no power to act. 2A Nelson, Divorce & Annulment, 51 and 52, § 17.07. Thus, we consider a decree for alimony to be res judicata on the circumstances prevailing at the time of the decree. This was indicated very early in this court’s consideration, in Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171, of a wife’s contention that the alimony allowance made to her in a divorce decree was inadequate. This court said that, insofar as alteration of the original decree upon the ground that the allowances of alimony and child support were meager and inadequate, no foundation was laid for relief, because if there were any ground for relief, it ought to have been, but was not, raised on appeal. This rule was followed in Wood v. Wood, 59 Ark. 441, 27 S.W. 641, where the court held the decree for alimony, which was determined by the court by hearing the evidence, to be conclusive as to the sufficiency of the allowance. It is true that the question was raised in both these cases by bill of review, but the same position has been taken by this court in cases where a wife sought to obtain alimony after she did not seek, or was not allowed, alimony in the original proceeding in which a decree of divorce was entered in her favor. See Ellis v. Ellis, 220 Ark. 639, 249 S.W. 2d 302; cf. Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6; Nelson v. Nelson, 146 Ark. 362, 225 S.W. 619 (overruled on another point). The basis for such holdings is that the decree was res judicata as to everything which might have been litigated when the divorce was granted. It is usually held that a decree for alimony is binding and conclusive on the parties as to the amount of alimony as to all conditions or facts existing when it was rendered. 24 Am. Jur. 2d 778, Divorce & Separation § 662; 27B CJS 69, Divorce § 251(4); Bates v. Bodie, 245 U.S. 520, 38 S. Ct. 182, 62 L. Ed. 444, LRA 1918 C 355 (1918); 2 Nelson, Divorce & Annulment 100, § 14.73; 2A Nelson, Divorce & Annulment 6, § 17.01.

It is only by reason of statute that the amount of alimony may be altered in this state. See Ark. Stat. Ann. § 34-1213 (Repl. 1962); 2A Nelson, Divorce & Annulment 6, § 17.01. It has been made clear, however, that when a decree is entered fixing and allowing alimony, that decree limits and defines the extent of the husband’s obligation, subject to the power of the court to increase or decrease the amount to meet the changed situation and condition of the parties. Pledger v. Pledger, 199 Ark. 604, 135 S.W. 2d 851. The burden of showing changes in circumstances justifying a change in the amount is always upon the party seeking the change. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468; Hurley v. Hurley, 255 Ark. 68, 498 S.W. 2d 887. The reason, of course, is the conclusive effect of the original decree as to the circumstances existing at that time. Furthermore, we said in Hurley that the liberality of the allowance in the original decree is not a ground for modification. This, too, is recognition of the conclusive effect of the original decree. “Change of circumstances” clearly means changes in the situation or condition of the parties. It does not include changes which do not relate to the situation, conditions or circumstances of the parties as to those factors which are pertinent in making an allowance of alimony. The decision in Orr was not such a change.

The decree is affirmed.