author: Carleton Harris, Chief Justice.

text:
    Harding Glass Co. v. Moore.
    5-1874
    327 S. W. 2d 8
    Opinion delivered September 7, 1959.

      Shaw, Jones $ Shaw, for appellant.

      Luke Arnett, for appellee.
   Carleton Harris, Chief Justice.

The sole question in this litigation is whether there was substantial evidence to support the finding of the Workmen’s Compensation Commission that the condition of Earl J. Moore, who died from cirrhosis of the liver, was aggravated by the examination and/or treatment incident to an accidental injury (admittedly compensable) occurring on June 10, 1955.

Moore was injured during the course of his employment, while lifting a box of glass, and a diagnosis of back strain, or herniated disc, was made. He was first examined by Dr. James V. Thompson, who was Moore’s family physician. Moore was admitted to the hospital, under a diagnosis of possible ruptured disc, and placed in traction. The patient did not respond to this treatment, continuing to have pain, and x-rays were taken on June 16, and also on July 5, at which time a myelogram was made by Drs. E. A. Mendelsohn and Hoyt Kirkpatrick. The doctors agreed that Moore had a large defect in the spinal canal at the region of the fourth and fifth lumbar vertebrae, representing a ruptured intervertebral disc pressing on a nerve, and on the basis of such diagnosis, referred Moore to Dr. Prank Padberg in Little Bock for surgery. Dr. Padberg performed the operation. He testified that at the time of the operation, he noticed some suspicious tissue, grayish in color, and a laboratory analysis was made. According to his evidence, it appeared to be tumor, but the pathological report did not show tumor, but a markedly degenerated tissue. Dr. Padberg stated he found other suspicious tissue, which was sent to the laboratory, and detérmined to be degenerated cartilage. Following the operation, performed July 29, 1955, Moore was discharged to his home in Fort Smith on September 14, 1955, but returned to the hospital in January, 1956, because of severe nasal hemorrhage, occasioned by the cirrhosis of the liver. He remained in the hospital until April 29, 1956, when he died. As indicated in the opening paragraph, appellee does not contend that the accidental injury and subsequent treatment caused the death of the deceased, it being admitted that he died of cirrhosis of the liver, but appellee’s position is that the preexisting disability was aggravated by the accident, medical treatment, and operation, and thus hastened Mr. Moore’s death. Appellants simply contend that Moore died by reason of cirrhosis of the liver, and that the injury, examination, operation, and treatment were not an aggravation of his existing condition, and did not operate to hasten his death.

All physicians agreed that the deceased was afflicted with osteomyelitis at the time of his death, and that this infectious condition aggravated the existing case of cirrhosis of the liver. No point would be served in detailing the testimony of the physicians, but in brief, Doctors Padberg, John M. Hundley, and Dr. Alfred Kahn, Jr., of Little Rock, appearing for appellants, testified that the osteomyelitis was present at the time of surgery. Dr. Padberg would not give an opinion as to whether the infection preceded the date of the accidental injury, June 10, 1955; however, he did state that he thought the infectious process antedated the myelogram, which was done on July 5, 1955. According to Dr. Padberg:

“I took the patient to the x-ray department and fluoroscopic examination was carried out and we were able therefore to go ahead with the myelogram under our own direction here, and went ahead and identified this large filling defect at the L4-5. It was my impression that the — I thought the patient probably had a herniated nucleus pulposus in his lower lumbar spine and he was okayed and cheeked through with internal medicine clearance that I should subject him to medical operation. * * *”

He then stated:

“I had Dr. Hundley to come in and see this patient at operation. I had found something here that was, to me, not common for a ruptured disc by any sense of means, which didn’t go along with — I couldn’t explain on that basis the emptiness of the disc space.” According to Ms evidence, the deceased did not in fact have a herniated disc, but instead, this condition was dne to the osteomyelitis, which was present at the time.

Dr. Hundley then testified as follows:

“Instead of there being a ruptured disc, there was an infection. We know that, in retrospect because at the operation it was obvious an infection was present and not a ruptured disc.”

In his opinion, the osteomyelitis had been present for some time before surgery, and the injury could not conceivably have caused this condition. He stated that the spine is very deep, and in order for an injury to cause the osteomyelitis, there would have to be a break in the skin directly over bone. Since there was no break caused by the injury, it was his opinion that the bacteria had to come through the vascular veinous system; in other words, the osteomyelitis was systemic. Dr. Hundley was of the opinion that the operation was of great benefit to Moore, and prolonged his life; that the discovery of osteomyelitis in the advanced stage and the surgery offset any trauma from the surgery or from the injury, for the reason that treatment was given for the osteomyelitis which would not have been discovered except for the operation.

Dr. Kahn stated that in his opinion the infection was present prior to the June 10th injury. He testified, and in fact, all the doctors agreed, that there is a trauma from anesthetic, and trauma from operation, both of which were relatively serious in this particular case because of the existing cirrhosis of the liver. For that reason, Moore was given a spinal anesthesia rather than a general anesthetic, which resulted in a mild trauma, but in the opinion of Dr. Kahn, had no effect upon the life span of Moore. The doctor testified that the post-operative shock was negligible, and that Moore was definitely better when he left the hospital after the operation, than when he entered. It was his opinion that the operation lengthened Moore’s life span.

To summarize appellants’ evidence, osteomyelitis was present at the time of the operation, and therefore could not have been occasioned by the operation, and the osteomyelitis was not caused by the June 10th injury.

Doctors Thompson, Albert S. Koenig, and E. A. Mendelsohn testified on behalf of appellee. Dr. Thompson stated that in his opinion, Mr. Moore’s cirrhosis was definitely aggravated by the anesthetic, surgery, and the infection. He stated that Moore would have eventually died from the liver condition, but it was his opinion that death would not have come so soon. He cited the fact that Moore had been afflicted with cirrhosis for quite some time, and yet had continued about his work, worldng until the time of the accident. He was of the opinion that the infection followed the surgery, but he likewise stated he considered that the surgery, anesthetic, and infection, all hastened Moore’s death. He further testified he felt that even though no osteomyelitis had been present, the trauma from the surgery and anesthetic would have hastened the patient’s death. His opinion that the osteomyelitis followed the surgery was based on the report by Dr. Mendelsohn, hereinafter discussed, to the effect that there was no evidence of osteomyelitis at the first examination.

Dr. Koenig performed an autopsy on the body of Moore, and testified that he found osteomyelitis in the vertebrae which lay under the incision. From his testimony :

“Well, osteomyelitis in the vertebrae could be due to one of several causes. It was my impression at the time, not knowing anything about the man’s previous history, that the infection could possibly have been secondary to the surgical procedure. In other words, there may have been contamination of the wound during the period of the surgical procedure and that the osteomyelitis followed that.”

Further: “I certainly feel that the operative procedure didn’t do him any good, and I certainly, feel that the cirrhosis was aggravated by what he had been through. ’ ’

He testified that he could not state whether the osteomyelitis existed prior to the operation, but would positively state that both the operation and the infection hastened death. He was further of the opinion that the surgery contributed more to the hastening than the infection. It was also his belief that the injury received at the time of the accident contributed to an earlier demise.

Dr. Mendelsohn was of the opinion that the initial injury had nothing to do with the osteomyelitis because there was no exposure of the bone. He considered the time element as significant in that the x-ray of June 16, 1955, was negative, and there was no evidence of bone infection in the x-ray of July 5th, though there was some evidence of pressure between the fifth lumbar vertebrae and the sacrum, but the osteomyelitis clearly showed in an x-ray two months later. It was therefore his opinion that the osteomyelitis was occasioned by some source of medical infection, specifically, either at the time the myelogram was made or at the time of surgery. He testified that he could not determine which, but stated on cross-examination that if the infection was present at the time of surgery (as testified to by appellants’ witnesses), the bacteria must have been introduced into the body at the time of the myelogram. He admitted that an osteomyelitis infection caused from myelogram was remote, “but it may happen.” He stated that osteomyelitis is demonstrable on x-rays within two to three weeks from its inception.

“I (still) can state that on July 7th no infection was present older than two or three weeks and apparently at the time of surgery the infectious process was rather early as far as the bone is involved, as far as the bone involvement goes, and would be very eompatible with my findings that an early osteomyelitic process was present at the time of surgery and the three week interval would again suggest the myelogram as a possible cause because the operation was performed exactly three or two and a half weeks following the myelogram. ’ ’

He also testified that the infection was in the “* * * very same location * * * the infectious process developed at the same level the myelogram was made.”

The Commission, in its opinion, under “Statement of the Case”, inter alia, stated as follows:

“While there is a divergence of medical opinion in this case as to whether deceased’s death was in any way related to injury, there is nevertheless unanimity of medical opinion that osteomyelitis will aggravate an existing case of cirrhosis of the liver. There is also medical evidence of record that surgical procedures and anesthesia are factors which may aggravate an existing cirrhosis of the liver. In view of the unanimity of medical opinion that osteomyelitis will aggravate a liver condition, such as this deceased suffered, it becomes important to establish the time when this deceased contracted osteomyelitis. In this connection we know that the osteomyelitis was first discovered at surgery on July 29, 1955. Now let us turn to the testimony of the radiologist, Dr. E. A. Mendelsohn. Dr. Mendelsohn testified that he made x-ray examination of deceased’s back on two occasions prior to deceased’s operation, the first being June 16, 1955, and the second being July 5, 1955, on which latter date, as has been set out hereinabove, Dr. Mendelsohn performed myelographic examination. It is the testimony of Dr. Mendelsohn that the presence of osteomyelitis can accurately be determined by x-ray examination; that when he examined deceased on June 16, 1955, and on July 5, 1955, there was no x-ray evidence of osteomyelitis; that osteomyelitis can be detected by x-ray within two or three weeks after the osteomyelitis is first contracted; that upon x-ray examination of deceased on September 22, 1955, which was after deceased’s operation, a typical picture of osteomyelitis of the spine was found. * * * Our interpretation of all the evidence herein leads us to the conclusion, based on the time element in x-ray disclosures of osteomyelitis and the sequence of events pertaining to examination and treatment of deceased, that most likely deceased’s osteomyelitis was from a blood stream infection which localized as a result of the trauma inflicted by myelographic examination.”

Appellants point out that the medical witnesses for appellee disagreed with each other’s findings, %.e., Dr. Thompson felt that the infection was caused by the surgery, but further testified that the trauma from the surgery and anesthetic would even more have hastened death. Dr. Koenig felt that the surgery was the hastening cause of death, and that the infection was caused by the operation: also that the injury received at the time of the accident contributed to the aggravation of the liver condition, while Dr. Mendelsohn was of the opinion that the osteomyelitis was probably caused by the myelogram of July 5th. ¥e accordingly have expert evidence that the osteomyelitis was present before the injury, and to the contrary, that it was not present until after July 5th. But appellants argue that the Commission, in its opinion, rejected the contention that the osteomyelitis was occasioned by the surgery (since they apparently accepted the testimony of appellants’ medical witnesses that osteomyelitis was present before the operation); that they could not have found it was occasioned by the injury because they accepted Dr. Mendelsohn’s testimony; that they gave no credence to aggravation by anesthesia or surgery, and that accordingly, the Commission’s award was based entirely upon Dr. Mendelsohn’s testimony that the osteomyelitis probably resulted from the myelogram of July 5th — and appellants say this witness’ testimony did not constitute substantial evidence. It is then pointed out that Dr. Mendelsohn was far from positive in his evidence. After explaining that a myelogram is a traumatic procedure because a needle is introduced through normal tissues, the doctor was asked: “I want to put you on the record, Doctor. You come back with the proposition that in yonr opinion this osteomyelitis that you found was caused by the injection of the needle upon the giving of the myelogram. Is that your opinion? A. It is a possibility.” While we recognize that this was certainly not positive evidence, we are unable to agree with appellants’ contention. Dr. Mendelsohn was very positive that neither the x-ray of June 16th nor July 5th showed any osteomyelitis, and we consider that this testimony constituted substantial evidence that this infection was not present at that time. Of course, Dr. Mendelsohn could not positively state what caused the osteomyelitis, or when it occurred, but he was emphatic that it occurred subsequent to July 5th. Medical experts, not infrequently, are less than positive in their declarations when diagnosing causes of physical disabilities. In many instances they are forced to speculate, for a particular condition could have been reached from several causes. Furthermore, we do not agree that the Commission, in its opinion, completely discarded, as unfeasible, the evidence that Moore’s death was hastened by surgery or anesthetic. Were this true, there would have been no occasion to include the statement heretofore quoted, vis., “there is also medical evidence of record that surgical procedures and anesthesia are factors which may aggravate an existing cirrhosis of the liver”, — and their conclusion is as follows: “As a consequence of the evidence of record, we think it inescapable to conclude that deceased’s cirrhosis of the liver, which disease occasioned death, was aggravated by examination and treatment incident to deceased’s injury of June 10, 1955.” Actually, -we consider that the Commission found that examination and treatment subsequent to the injury hastened Moore’s death, and then proceeded to speculate as to what particular phase of the subsequent examination or treatment aggravated his condition; in their words, “ # * # that most likely deceased’s osteomyelitis was from a blood stream infection which localized as a result of the trauma inflicted by myelographie examination.”

We are without authority to decide whether the osteomyelitis was occasioned by trauma, or was systemic in origin, or whether the surgery or anesthesia aggravated Moore’s condition. It is not within our province to determine which doctor, or doctors, were correct. All are prominent, and recognized as well qualified; nor are we required to agree with the findings reached by the Commission. We are only called upon to determine whether there was substantial evidence to justify the Commission in the conclusion reached. Since we are of the opinion that the record does contain evidence of a substantial nature to support the view of the Commission, the judgment of the Circuit Court is hereby affirmed.

       Deceased was paid compensation for 46 6/7ths weeks, and all medical expenses were paid until the date of death, April 29, 1956.

       In retrospect, Doctors Hundley and Padberg were of the opinion that this picture only simulated a herniated disc when in fact, it was the infectious process that was present at that time.

       Emphasis supplied.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Pogue v. Grubbs.
    5-1880
    327 S. W. 2d 4
    Opinion delivered September 7, 1959.

      Marvin P. Watkins ¡<3 Frierson, Walker $ Snell-grove, for appellant.

      Howard & McDaniel, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal involves an election contest. Appellant, Pogue, and appellee, Grubbs, were candidates for the office of Constable in the Democratic Primary Election on August 12, 1958. The official election returns as properly certified showed that appellant received 257 votes and appellee 252. In apt time, appellee, Grubbs, filed a complaint in the Poinsett Circuit Court in which he alleged that he had received a majority of all legal votes cast and should be declared the nominee. Appellant answered denying appellee’s allegations and prayed that the official returns, as above indicated, be upheld. A trial resulted in a finding by the court that the correct result of the election showed that appellant, Pogue, had received 207 votes and appellee, Grubbs, 225 legal votes and declared appellee the nominee. From the judgment is this appeal. For reversal appellant says: (a) The burden of proof rested on appellee, the contestant, to show that he received a majority of the legal votes cast, (b) The integrity of the ballots was destroyed, and the court erred in considering the ballots to determine the result of the election, (c) Appellee failed to sustain the burden of proving that he received a majority of the legal votes cast.

Our rule is well established that in an election contest the official returns are prima facie correct and the burden is on the contestant (appellee here) to show to the contrary by affirmative proof. “The official returns of the election are quasi records, and are prima facie correct. The burden is upon the contestant to show by affirmative proof that they do not speak the truth. * * * All the ballots cast by the voters and returned by the proper officers are presumptively legal, and their verity is not impeached by showing that contestant received a majority of the votes cast by persons who had become of age since the last assessing time. In order to succeed, he must prove that he received a majority of all the legal ballots cast at the election.”, Tucker v. Meroney, 182 Ark. 681, 32 S. W. 2d 631, and in Connelley v. Vester, 186 Ark. 393, 53 S. W. 2d 861, we re-announced this rule as follows: “. . . since the official returns of the election are quasi records and stand with all the force of presumptive regularity until overcome by competent evidence, all the ballots cast by the voters and returned by the proper officials are presumptively regular, in order to succeed, the contestant must prove that he received a majority of all the legal ballots cast at the election

The record shows that after appellee had completed the introduction of all of his testimony, appellant filed a demurrer to appellee’s evidence which the court overruled. Whereupon appellant declined to plead further, or to offer any evidence, but elected to stand on his demurrer. The court then found from appellee’s evidence that appellee, Grubbs, had received 225 legal votes and the appellant, Pogue, 207, and declared Grubbs the nominee.

In a situation such as here presented, our long standing rule is settled that if we find any substantial evidence to support the judgment of the trial court, we must affirm it. We said in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, “The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in' cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.” Citing many cases. Appellee’s complaint alleged and appellant’s answer admitted that the official returns, as indicated, showed that Pogue received 257 votes and Grubbs 252, so obviously any net change of only 6 votes in favor of Grubbs would make him the winner. The complaint alleged and appellant’s answer admitted that 15 voters (8 in the “North Box” and 7 in the “South Box”), naming them, all cast their votes for Pogue and were counted for him. Grubbs challenged the legality of these 15 votes. He introduced the printed poll tax list which showed that not one of the above 15 voters appeared on that list. Appellant offered no evidence to rebut this showing, therefore, this proof of appellee made a prima facie showing that said votes were illegally cast and this shifted the burden to appellant to show their validity which he utterly failed to do. "We said in Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939, “It will, therefore, be seen that we have already held that evidence showing that certain named voters do not appear on the printed list makes a prima facie case that such votes are illegal and that the burden shifts to the contestee to show that they are legal by ‘other evidence’ mentioned in the statute. But, says appellee, we have many times held that the returns of the election officials are presumptively correct and that said presumption should not be overcome by the mere showing that the names do not appear on the printed list. "We have held that a presumption of verity attaches to the returns of the election officials, but we have also held in Purdy v. Glover, supra, that proof that the names of certain challenged voters do not appear on said list makes a prima facie case of the illegality of such votes and that the burden then shifts to the contestee to show their legality as provided by said statute, thus holding, in effect, that the presumption of verity of the returns has been overcome. Wilson v. Luck, 203 Ark. 377, 156 S. "W. 2d 795.

“Appellant also says that the allegation in the complaint, the first quoted above, that many votes were cast and counted for appellee by persons who were not qualified electors was insufficient to support proof that they were not found on the printed list. We think it is, but conceding that it was indefinite and uncertain in this respect, a motion to make more definite and certain would have reached the defect, and appellant could have amended by stating that they were not qualified electors because their names did not appear on the printed list. But no such motion was made.” Since there was substantial evidence, therefore, to support appellee’s claim that these 15 votes were illegally cast, they should be and must be discarded from appellant’s 257 votes, leaving Grubbs the winner by 10 votes.

After examining all the evidence presented, which we do not attempt to analyze here, we have concluded that the trial court was warranted in refusing to hold that the integrity of all the ballots had been destroyed by alleged misconduct on the part of the election officials, and in proceeding to consider those legally cast in determining the result of the election. We hold that appellee has sustained the burden of proof that he received a majority of the legal votes cast.

Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Taylor v. State.
    4944
    327 S. W. 2d 6
    Opinion delivered September 7, 1959.

      Roger L. Murrell & Wayne Foster, for appellant.

      Bruce Bennett, Atty. General, By: Clyde Calliotte, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant, Randolph Taylor, was tried and convicted of robbery (§ 41-3601 Ark. Stats.), and duly sentenced. His motion for new trial contains only these assignments:

“(1) That the verdict rendered is against law and/or the evidence.
“(2) That the Court misinstructed the Jury.
“(3) That evidence in favor of the defendant has been discovered subsequent to trial herein. That specific referred to improprieties cannot be effectively made until defendant has an opportunity to obtain a transcript of the trial of this cause from the Court stenographer.”

Assignment No. 1. A study of the record discloses that the evidence was sufficient to take the case to the jury, and also to support the verdict. It was shown by the State that Tom’s Liquor Store was robbed of $134.00 on the night of January 22, 1957; and the appellant was positively identified as the man who held the gun on the clerk and committed the robbery. See Jenkins v. State, 191 Ark. 507, 87 S. W. 2d 60, and White v. State, 226 Ark. 368, 289 S. W. 2d 900.

Assignment No. 2. The Trial Court gave five instructions requested by the State. These relate to (a) definition of robbery and punishment therefor; (b) presumption of innocence; (e) reasonable doubt; (d) credibility of witnesses; and (e) form of verdict. The appellant (defendant) offered only a general objection to these instructions; and, even assuming that the assignment in the motion for new trial was sufficient to present for consideration any question as to each instruction, still we do not find any instruction to have been inherently erroneous. See Keith v. State, 218 Ark. 174, 235 S. W. 2d 539. So this assignment is without merit.

Assignment No. 3. This assignment says that the defendant has newly discovered evidence: we have searched the record in vain to find anything further about such evidence except this mere statement in the motion for new trial. It is, therefore, clear that on this matter of newly discovered evidence, the defendant has failed to comply with the statute (% 43-2203 Ark. Stats.), or to bring himself within the purview of our cases, some of which are: Rynes v. State, 99 Ark. 121, 137 S. W. 800; and Ary v. State, 104 Ark. 212, 148 S. W. 1032.

Additional Point Argued By The Appellant. In his brief in this Court, appellant argues a point not. contained in the motion for new trial. In Watkins et al. v. State, 222 Ark. 444, 261 S. W. 2d 274, we said:

“Under our long established rule, an error not preserved in the motion for a new trial cannot be considered by us on appeal . . . State v. Neil, 189 Ark. 324, 71 S. W. 2d 700; Suit v. State, 212 Ark. 584, 207 S. W. 2d 315.”

But even if the matter argued in the brief had been carried forward in the motion for new trial, still we would hold that the appellant had failed to show error.

Affirmed.


author: George Eose Smith, J.

text:
    Lovell v. Democratic Central Committee.
    5-1945
    327 S. W. 2d 387
    Opinion delivered September 7, 1959.
    [Rehearing denied October 12, 1959]

      Charles L. Carpenter, for appellant.

      Glenn G. Zimmerman and J. Frank Holt, for appellee.
   George Eose Smith, J.

This suit was brought by the Pulaski County Democratic Central Committee and the County Board of Election Commissioners for a declaratory judgment as to the constitutionality of Act 176 of 1959. The complaint alleges that the validity of the act must be determined so that the plaintiffs may know whether they should call and conduct municipal elections in North Little Eock in 1959. The appellants, as residents and taxpayers of the city, intervened to attack the constitutionality of the act, and several of the city’s elected officers intervened to defend the statute. This appeal is from a decree holding that Act 176 is valid and that therefore no municipal elections need be held in North Little Eock this year.

The appellants’ principal contention is that the act constitutes local legislation, in violation of Amendment 14 to the Arkansas constitution. It was formerly the rule that the mayor, aldermen, and other officers of all cities of the first class were elected for two-year terms, with about half of these officers being elected each year. Ark. Stats. 1947, §§ 19-1002, 19-1004, and 19-1015. Act 176 provides that in cities of the first class which have a mayor-council form of government and which may now or hereafter have a population of more than 50,000 the city officials shall be elected for four-year terms, with, elections to be held only in even-numbered years. It is conceded that the act now applies only to North Little Rock, for the mayor-council form of government does not prevail in Little Rock or Fort Smith, which are the only other cities having more than 50,000 inhabitants.

We are unable to say that the legislative classification is so arbitrary as to compel the conclusion that it was selected as a means of disguising local legislation in general language. The controlling question is whether the classification bears a reasonable relation to the purpose of the law; that is, whether there is a sound basis for having four-year terms of office in the larger cities and two-year terms in the smaller ones. Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991; Mankin v. Dean, 228 Ark. 752, 310 S. W. 2d 477. It is a matter of common knowledge that the principal officers of metropolitan governments must devote all or substantially all of their working hours to the performance of their public duties, while in the smaller communities a municipal office is ordinarily a part-time job that is not the incumbent’s principal livelihood. In view of these differing conditions the legislature may well have concluded that the stability of a four-year term of office is necessary, or at least desirable, as a means of attracting the best qualified candidates for office in the state ?s largest cities. If the legislators reached that conclusion— and the familiar presumption of constitutionality requires us to act on that assumption — it cannot fairly be said that their position is capriciously taken.

The appellants seek to bolster their argument by showing that on the day before the bill which became Act 176 was introduced in the legislature there was defeated a proposal which would have created four-year terms of office in all cities of the first and second class having a mayor-council form of government. We are not impressed by the notion that the defeat of the earlier bill somehow demonstrates that the General Assembly adopted Act 176 as a means of legislating for North Little Rock alone. In the construction of a bill that has become law little weight can be attached to the fact that some different measure was defeated at the same session of the legislature. See State v. Lancashire Fire Ins. Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348; Jefferson v. U. S., 4th Cir., 178 F. 2d 518, aff’d 340 U. S. 135. Here the only reasonable inference to be drawn from the disposition of the two bills is that the legislature did not think it advisable to provide longer terms for all city officers and yet did consider that provision appropriate in the case of cities having a population of more than 50,000. That is the literal difference between the two measures, and we can think of no reason for reading into the situation a legislative determination to circumvent the constitution.

The appellants also complain of the fact that the abolition of municipal elections in 1959 will result in extending until 1960 the terms of those officers who were elected in 1957. It is evident, however, that the change from two-year terms to four-year terms and from annual elections to biennial elections can hardly be accomplished without either extending some of the terms for a year or reducing some of them by a year. As between the two choices the extension of time may well have been chosen by the legislature in an effort to avoid injustice to those who had been elected to office. In any event the choice clearly falls within the rule that a reasonable change in the beginning of terms, as an incident to a change in the date of elections, is not forbidden by the constitution. Hendricks v. Hodges, 122 Ark. 82, 182 S. W. 538.

We think it unnecessary to discuss the appellants’ remaining contentions, which we find to be without merit.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Commissioner of Revenues v. Willey Planting Co.
    5-1858
    327 S. W. 2d 81
    Opinion delivered September 7, 1959.
    [Rehearing denied October 5, 1959]

      Herrn Northcutt, for appellant.

      W. Stuart McCloy and N. J. Gantt, Jr., for appellee.
   Sam Robinson, Associate Justice.

Appellee, Willey Planting Company, was a corporation engaged in farming, ginning, etc. It had large land holdings and other assets. In December, 1954, the stockholders decided to dissolve the corporation, and adopted a resolution to that effect. The nature of the business was such that the assets could not be disposed of and the affairs of the company wound up in a few days. Accordingly, the resolution to dissolve provides that liquidation was to start January 1, 1955, and be completed not later than November 30, 1955. In dissolving the corporation, assets were sold resulting in a profit of a little over $300,-000. The company paid no income tax on the profit derived from the sale of corporate assets in liquidation. Incidentally, the parties stipulated that the exclusion of such profits from gross income also conforms to the rule of § 337 of the Federal Income Revenue Code of 1954.

The State Revenue Commissioner contends that the corporation owes $15,111.09 as income tax on the profit made from the sale of the corporate assets, and made a deficiency assessment against the company for that amount. The corporation filed this suit alleging that it was in the process of liquidation and asked that it he relieved from paying the deficiency assessment. The chancellor granted the relief prayed for by the corporation, and the Revenue Commissioner has appealed.

Ark. Stat. § 84-2041 provides:

“The Commissioner, with the approval of the Governor, may from time to time make such rules and regulations not inconsistent with this act as he may deem necessary to enforce its provisions.”

Pursuant to this provision of the statutes, the Revenue Commissioner adopted the following regulation:

“Art. 45. Gain Derived from Sale of Assets of Corporations in Liquidation. — Profits derived from the sale of assets of a corporation which has been dissolved and is in process of liquidation should not be reported as gross income to the corporation, provided, it is conclusively and definitely shown that the corporation has ceased to do business and is proceeding with the necessary steps in liquidation; and provided, further, that such is made only because it is essential to the settlement of accounts outstanding against the dissolved corporation and is necessary for the proper distribution of the assets remaining to the stockholders.”

The Revenue Commissioner contends that Article 45 of the regulations does not relieve the Willey Company from paying an income tax on profits derived from the sale of the corporate assets, for three reasons: First, that the corporation had not ceased to do business; second, that the sale of the assets was not “essential to the settlement of accounts outstanding against a dissolved corporation and is necessary for the proper distribution of the assets remaining to the stockholders”; third,- that even if Article 45 of the regulations adopted by the Revenue Commissioner purports to relieve the corporation from paying income taxes on the profit derived from the sale of assets in liquidation, such regulation is invalid.

The overwhelming evidence is to the effect that the stockholders of the corporation had adopted a resolution to dissolve the corporation and that the corporation is being dissolved as rapidly as possible. In fact, there is no evidence in the record to the contrary. True, the corporation continued to do those things necessary to prevent unnecessary losses, but any business done by the corporation was in accordance with Ark. Stat. § 64-806, which provides, among other things, that all dissolved corporations ‘ ‘ shall nevertheless be continued for the term of three years (3) from such expiration or dissolution as bodies corporate for the purpose of prosecuting and defending suits by or against them and of enabling them gradually to settle and close their business, to dispose and convey their property, and to divide their assets but not for the purpose of continuing the business for which said corporation shall have been established.” Here it appears that if it had been possible for the corporation to have completely closed out its business and disposed of its assets the day the resolution to dissolve was adopted, this would have been done, but according to the evidence in the case a disposition of the assets in such a rapid manner was impracticable, if not utterly impossible, and it appears that the only business done by the corporation subsequent to the adoption of the resolution to dissolve was those things necessary to settle and close the business. This was in accordance with the statute, and regardless of the validity of Article 45 of the regulations adopted by the Revenue Commissioner, according to the evidence in this case the corporation as such would not owe an income tax on the profit from the sale of assets, such sale being made for the purpose of dissolving the corporation, paying the creditors and distributing the balance to the stockholders. It was shown that the first of January, 1955, the company owed $142,000, and although completely solvent, it did not have that amount in cash with which to pay such debts. Incidentally, the stockholders individually paid income taxes on the profits they received from the sale of the corporate assets.

Affirmed.


text:
    Clements v. Cox.
    5-1889
    327 S. W. 2d 83
    Opinion delivered September 14, 1959

      Bert B. Larey, for appellant.

      Charles C. Wine, for appellee.
   Carleton Harris, Chief Justice.

On September 22, 1956, appellees, W. M. Cox and wife, Ambus J. Cox and wife, James E. Cox and wife, and Rabb Spence and wife, instituted suit against appellants, J. H. Clements and wife, alleging that appellees were the owners and in possession of certain lands in Miller County, having acquired title to same by warranty deed of September 2, 1948, from J. R. Bush and wife; that appellants had constructed fencing upon a portion of such lands, containing approximately 25.70 acres, in an apparent attempt to make claim to that portion of the land. The Complaint prayed that Clements be directed to remove the fencing, or that they (appellees) be allowed to do so, and that title to the property here in dispute be vested absolutely in appellees. The Clements were nonresidents of this state, and constructive service was obtained. On November 1, 1956, the court entered a default decree granting the relief sought in the Complaint, by vesting and quieting title in appellees, and authorizing appellees to remove the fences. On November 26th, Clements and wife filed a motion to set aside the decree, alleging that they had been constructively summoned by the publication of a warning order, but received no notice from the attorney ad litem appointed to apprise them of the pendency of the suit, and accordingly did not know that the suit had been instituted. They alleged a meritorious defense, viz., that the Clements and Bush had agreed upon a boundary line in 1944; that several fences were built, but washed away, and that Clements constructed the last fence more than four years before appellees purchased the property from Bush; that Bush had at all times recognized the agreed boundary line. A hearing was conducted on December 4, 1957, with the respective parties presenting their evidence. The court found that the Clements failed to sustain their contention of an agreed boundary line, overruled the motion to vacate, and confirmed the decree of November 1, 1956. From this action of the court, appellants bring this appeal.

Two tracts of land are involved, and the trial court summarized the subject matter of the dispute as follows:

“ * * * the Court finds that there were 18 acres on the west side of the plaintiffs’ land, the defendants’ boundary line being on the east side and the plaintiffs’ land line being on the west side of the 18 acres involved in this controversy, said line running north and south; that there were 7.70 acres involved on the north side of the plaintiffs’ land, and the defendants’ line being on the south side of said acreage and the plaintiffs’ upon the north side; that plaintiffs had a survey made of their land line and their theory and contention in the case was that this was the correct land line between plaintiffs’ and defendants’adjacent lands; * * * That the defendants’ sole defense in this case is on the theory that they had an agreement with Mr. J. R. Bush who is the predecessor in title to this land sold to Mr. Cox in 1948; that the boundary lines between their lands were agreed upon, and they obeyed and respected those boundary lines after said agreement was entered into: * *

The decision in this litigation does not hinge upon a point of law, it being recognized that this Court has, on numerous occasions, held that the owners of adjoining lands may, by parol agreement, fix a boundary line that will bind them and their grantees. Payne v. McBride, 96 Ark. 168, 131 S. W. 463. Furlow v. Dunn, Admx., 201 Ark. 23, 144 S. W. 2d 31. The sole question here, rather, is whether appellants established that such an agreement had been reached. J. R. Bush died in 1952, and no witness, with the exception of appellant, J. H. Clements, testified to any agreement between Clements and Bush. The witnesses offered by appellants testified relative to old blazes and marks, and some testified to an old fence on the north. But we agree with the Chancellor that their testimony was rather indefinite and uncertain, which is not surprising, in view of the fact that they were testifying about facts occurring many years before. Probably the strongest witness offered by appellants was Mr. Wilbur Martin, who testified that Bush and “his son or step-son” showed him a line which was blazed at the time. Prom his testimony:

“Q. Will you tell the Court whether or not Mr. Clements has built the fence back on the boundary lines that were shown to you?
A. On this fence going east here, the test I can tell Now, on this, there wasn’t any fence going north at that time, but there was a blazed line supposed to he the line there.*”

This evidence, of course, is far from definite, but were it otherwise, it would still constitute only a circumstance to support appellants’ claim. We would certainly be unwilling to say that this testimony, or that of the other witnesses, established an agreed boundary line, and we also concur with the Chancellor’s finding:

“That the record does not convincingly reflect that there was ever an agreement entered into upon the fence as the boundary line, * *

The evidence is nncontradicted that appellees have paid the taxes on the land each year since it was purchased in 1948 from Bush, and that Cox sold timber on the basis of the description set out in the deed; appellees ’ witnesses testified that they had never heard of any agreed boundary line; admittedly the deed itself does not contain any provision that the land purchased was other than that contained in the description, nor does the record reflect that appellees had any notice of appellants’ claim of an agreed boundary line at the time they purchased the property.

As stated by the trial court: ‘ ‘ Therefore, when all of the testimony and the facts and circumstances are taken into consideration in this case, the Court is unable to say that the defendants have sustained their motion by preponderance of the testimony, * * We are in full accord. The decree of the Chancery Court is accordingly affirmed.

      Emphasis supplied.


text:
    Boone v. State.
    4938
    327 S. W. 2d 87
    Opinion delivered September 14, 1959.

      W. Harold Flowers, for appellant.

      Bruce Bennett, Attorney General; by: Thorp Thomas, Assistant Attorney General, for appellee.
   J. Seaborn Holt, Associate Justice.

On an information charging the crime of murder in the first degree, appellant, Rogers Boone, a Negro, was found guilty of the murder of M. R. Hamm, a white man 76 years of age, and his punishment fixed at death. This appeal followed.

For reversal appellant relies on the following points: “(1) The court erred in overruling appellant’s motion to quash the information. (2) The conduct of the trial court in communicating with the jury by entering the jury room without the defendant or his counsel was improper, and constitutes reversible error. (3) The alleged confession of appellant, and amended statements, were illegally admitted into the evidence.”

I

Appellant, in apt time, filed motion to quash the information alleging that Amendment 21 of the Arkansas Constitution violated the provisions of Amendment Fourteen of the Constitution of the United States. This identical question has been settled against appellant’s contention by this court in Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, wherein we said: “* * * appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: ‘ That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the prosecuting attorney.’

“This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 and Smith et al v. State, 194 Ark. 1041, 110 S. W. 2d 24. The United States Supreme Court has repeatedly held that a State can — if it so desires — provide for a prosecution by information instead of by indictment. -Appellant quotes from, and relies on, the dissenting opinion of Mr. Justice Black in Adamson v. California (decided June 23, 1947), 332 U. S. 46, 91 L. Ed. 1903, 67 S. Ct. 1672. But we must follow the majority in that case, rather than the minority. We therefore conclude that the trial court was correct in refusing to quash the information.”

II

Next appellant says that, “The trial court, in communicating with the jury by entering the jury room without the defendant or his counsel was improper and constitutes reversible error.” We do not agree. The record reflects that while the jury was deliberating on the case, it appeared that some of the jurors were having difficulty in deciding whether appellant should be sentenced to life imprisonment or death and, says appellant, “Upon being informed of a request for permission to aslc the court a question, and upon agreement of counsel for the State and appellant, the court and the reporter went into the jury room,” whereupon the following occurred:

“ ‘BY MR. ROWLAND:. Judge, you may not' be able to answer this question, and I will withdraw it if you can’t. There might be one thing that would help laere. In a life sentence, do you know approximately the average time served when a man receives a life sentence? BY THE COURT: No. BY MR. ROAYLAND: That might help. BY THE COURT: I can’t answer that. In response to that question, gentlemen, I will say this. Do not concern yourselves with that question. If you say life, as far as you are concerned, it is life. If clemency is later shown, it will have to be shown by the executive branch of the government, and not by you, and you should really not consider that phase of it. . . .’ And there followed in concluding the first appearance before the jury in the jury room: ‘BY MEMBER OF THE JURY: The way this started, we were all unanimous on guilty. Now, if we can’t arrive at the penalty, is that a hung jury? BY THE COURT: Yes, sir, that is a hung jury. The mere fact that it would be a hung jury should not influence any member of this group in what your decision would be. Do hot worry about that. I don’t mind trying lawsuits; that is my job. If it is a hung jury it would have to be tried again. That doesn’t go into the merits of it. You decide those two questions strictly on the law and the evidence, and whatever the answer to that is, you satisfy your own conscience and the court will be satisfied and happy. If you need further information, gentlemen, let me know.’ And, again the court and reporter returned to the jury room to find that the jury was deliberating on the matter of punishment, and here follows the unusual question: ‘BY MR. GARDNER: Wo have taken another vote after quite a bit of discussion, and we are eleven to one. We have finally come to the conclusion that we will be in agreement if we can find out what the maximum penalty would be. Is that possible? Everybody will be in agreement if the law could tell us what the maximum penalty is. Is it life imprisonment, or the second choice with the electric chair? Do you understand what we are trying to get at? BY THE COURT: I don’t believe — . BY MR. ROWLAND: The maximum penalty. There is some doubt in a few — at least one person’s mind— which would be worse, lifeHor death. BY THE COURT: That is a matter for you to decide. BY MR. GARDNER: The law doesn’t state that. BY THE COURT: No, no, sir, the law doesn’t say. The law simply says that the penalty shall be life imprisonment in the event of a finding of guilty, or the penalty shall be death in the event of a finding of guilty. It leaves it to the jurors to decide which of those penalties shall be inflicted.’ And there followed the question: ‘BY MEMBER OF JURY: Judge, if you please, the question is which is the more severe punishment, life imprisonment, or death? That is the question, if you can answer that question. BY THE COURT: I can answer you in my own mind. I don’t know what the law books, offhand, say. That is a novel question. BY MEMBER OF THE JURY: That is what we are faced with. BY THE COURT: I wouldn’t hesitate to answer it, if I had an opportunity to confer with counsel. Anything that transpires between the jury and the court has to be known by the defendant or his counsel, and let me check that please.’ And, now we come to the report of the return of the court for the last jury room conference, by agreement of counsel for the State and the defendant, which ended as the point of no return: ‘BY THE COURT: After conferring with counsel, the court reporter will read a brief statement which the court prepared with the agreement of counsel in answer to the question propounded a minute ago. BY THE COURT REPORTER: (Reading) Gentlemen of the Jury, you have asked the court to tell you at this state of your deliberations which is considered in law to be the most severe penalty. "Whether it is death by electrocution, or whether it is life imprisonment. Our statutes provide that every person convicted of murder in the first degree shall suffer death or life imprisonment. It is for you, the jury, to say which of these two penalties should be inflicted, the severity of either of those punishments is a matter for each of you to decide to your own satisfaction. BY THE COURT: Gentlemen, are there any other questions? BY MEMBER OF THE JURY: You didn’t help us much. BY THE COURT: I am sorry, but I have got to go by the law. Suppose I give you ab#ut ten minutes and then I may call on you to report to the court. BY MEMBER OF THE JURY: We will stay longer than that, if necessary. BY THE COURT: As far as that goes, gentlemen, I will stay until the cock crows in the morning, if you want to. Don’t hurry on my account. As long as you feel there is a reasonable chance to come to some conclusion and reach a verdict, I will be right here, and happy to stay with you.’ ”

It thus appears undisputed that appellant agreed to the court’s entering the jury room, as indicated, and he points to no evidence in the record tending to show that anything was said or done prejudicial to the rights of appellant. Our statute, 43-2139 Ark. Stats. (1947), on this question provides: “After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.” Here the trial judge, after conferring with both counsel for the State and defendant and with their approval, went into the jury room with the court reporter and instructed the jury, as indicated. He then returned to the court room and with the assistance and agreement of both counsel for appellant and counsel for the State, drafted additional instructions, returned to the jury room and read it to them. We are convinced, that on the record here, appellant, by agreeing to the actions of the court, waived his right to challenge such actions unless such acts were shown to be so harmful or prejudicial to his rights as to constitute error and, as indicated, we hold, in the circumstances, that the court did nothing prejudicial. What we said in Aydelotte v. State, 177 Ark. 595, 281 S. W. 369, in a somewhat similar situation, applies with equal force here. There this court said: “* * * The most serious question in this case is whether or not the court erred in telling the foreman of the jury in the hall of the courthouse, apart from his fellows, in answer to a question propounded to the judge by the foreman, that the jury could give less than one year for the lowest degree of homicide according to the instruction twice given to the jury. If this were all the record showed, it would undoubtedly be reversible error because contrary to Sec. 3192, C. & M. Digest, which provides: ‘After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to, the counsel of the parties.’ The provisions of the above statute are mandatory, and where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error. The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the State, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties. While the records show that the communication between the foreman of the jury and the trial judge occurred in the hall of the courthouse, yet the record further shows that appellant’s counsel was standing within thirty feet of the judge and the foreman of the jury at the time, and, immediately after the communication, the judge informed appellant’s counsel of such communication. The counsel stated to the judge it was all right, but he wished to save his formal exceptions. Even this would not have been a compliance with the statute if nothing further had been done, but, after the jury had returned into court with its verdict, and before the court had received the same, the court informed the jury of the communication that the judge had with the foreman, and inquired of them if such was their understanding of what had happened, and asked them if the conduct of the judge and the foreman had exerted any influence on them in reaching their verdict, and they answered that it had not. Thus it appears that the communication between the judge and the foreman of the jury was repeated in the presence of the jury and counsel in the court room before the verdict was received and announced. Counsel for the respective parties were thus notified of what had taken place, and what was then taking place, in open court, and they were then given an opportunity to register any objection they had or might have had to the procedure, and they offered none. Counsel for appellant was immediately informed by the presiding judge of the communication between him and the. foreman, and given an opportunity then to request that the jury be brought into open court and that the same information be there given the jury as had been given to its foreman, and counsel for appellant did not make such request.

“It occurs to us that the error of the trial judge in communicating with the foreman of the jury in the hall of the courthouse was fully cured by repeating the communication in the presence of counsel and jury in open court before the jury’s verdict was received and announced, when appellant’s counsel were given an opportunity to then and there offer any objection they had to the communication. Wawak & Vaught v. State, 170 Ark. 329, 279 S. W. 997. The statute was complied with both in letter and spirit, and therefore no prejudicial error resulted.”

Ill

Appellant says the court erred in admitting the alleged confession of appellant and amended statements and confessions of James M. Moore, James Boyd, and Willie H. Byrd. It appears that this same objection of admitting confessions of Boone’s codefendants was raised in the very recent case of Moore v. State, 229 Ark. 335, 315 S. W. 2d 907. We there said: “This evidence of the statements by the other prisoners in Moore’s presence tending to implicate Mm in the crime was admissible testimony under our holding in Martin v. State, 177 Ark. 379, 6 S. W. 2d 293, wherein we said: ‘ * * * it is a general rule that the statements of one accomplice made in the presence and hearing of another, which are not contradicted by him, are admissible in evidence against him as an admission on his part for his failure to contradict them. Polk v. State, 45 Ark. 165; Ford v. State, 34 Ark. 654.’ In 20 Am. Jur. 428, ‘Evidence,’ Sec. 493, the general rule is stated: ‘The rule precluding the use of the confessions of co-conspirators and codefendants as evidence against those not making the confessions is limited to confessions made in the absence of such other defendants. A confession of a co-conspirator or codefendant made in the presence of the accused and assented to by him, impliedly or tacitly by his silence or conduct, is admissible against him, upon the same principles which permit the introduction of evidence that the defendant stood silent when accused of crime, but it must appear that he did assent to the confession.’ ”

It is undisputed that appellant made and signed a confession. Pie denies, however, that he voluntarily made it. The deputy sheriff of Miller County, in this connection, testified that he took charge of the appellant and his accomplices, Moore, Byrd and Boyd, at Texarkana and with other officers transported them to the prosecuting attorney’s office at Arkadelphia. He further testified that appellant, without any promise of immunity or reward and without being threatened or abused in any manner, voluntarily made the confession. The deputy sheriff’s testimony was corroborated by Mrs. Merrill, the stenographer who transcribed it, and Max Tackett, the other officer present. In the confession the appellant admitted that he was not mistreated, that he had not been threatened and had been promised nothing by way of reward or leniency. This issue, as to whether Boone’s confession was voluntary, was properly submitted to the jury in the court’s instruction No. 12 in accordance with our holding in McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, where we said: “In such cases the practice approved by us, which was followed in the instant case, is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”

Finally it appears that at the close of the State’s case, appellant objected to the action of the court in overruling his motion for a directed verdict on the ground that the State failed to prove the corpus delicti, failed to prove any criminal agency and that the confessions were not legally admitted in evidence. Our statute provides (Ark. Stats. 43-2115) : “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.” In construing this statute, we held in Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, that: “An extrajudicial confession of a defendant accompanied by proof that the offense was actually committed by someone is sufficient to warrant his conviction, whether there is any other testimony tending to connect him with the crime or not.” In the present case we think the evidence, even independent of Boone’s confession, was sufficient to sustain the verdict of first degree murder. The evidence, as shown in a stipulation of facts, reflects that Mr. Hamm left his home in the morning of May 9th to go to Texarkana. On his way home, about 10 o’clock, he stopped at a service station on Broad Street, Texarkana, where he rested for about thirty minutes. He then proceeded up highway No. 67 to a point near Jack Miller’s courts where he “hitched” a ride on a truck driven by Henry Byrd and occupied by James Moore, James Boyd and appellant, Rogers Boone. He was last seen alive on his way home. He was missing until his body was discovered May 15th. All four occupants of the truck showed the officers where Hamm was assaulted and murdered. Hamm’s billfold, with $10.11 missing therefrom, was found empty about 200 yards from the scene of the murder. We think that the admitted fact that Hamm’s body was found at the place indicated by appellant and the other three Negroes with his billfold found empty would warrant a jury in finding that Hamm had been murdered and robbed and sufficient to sustain Boone’s conviction. The fact that the body was found where Boone said the assault took place certainly connects him with the crime and sustains his confession. Citing Shufflin v. State, 122 Ark. 606, 184 S. W. 454. We conclude therefore that the evidence was sufficient to support the verdict.

This being a capital case, it is our duty to consider all alleged errors and objections and after having done so, we find no error that would require reversal of this case.

Accordingly, the judgment is affirmed.


text:
    Smith v. Faubus, Chairman.
    5-1810
    327 S. W. 2d 562
    Opinion Delivered September 14, 1959.
    [Rehearing denied October 19, 1959]

      James M. Nabrit, Washington, D. C., U. Simpson Tate, Dallas, Texas, Thad D. Williams, Harold B. Anderson and J. R. Booker, for appellant.

      R. B. McCulloch, Richard McCulloch and J. L. Shaver, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal presents for decision the validity of Acts 83 and 85 of the 1957 Arkansas G-eneral Assembly. Appellants, Smith et al., were plaintiffs below. They filed suit for declaratory judgment, inter alia, and claimed that both of the said Acts were void. Appellees, Faubus et al., were defendants below, and constitute the membership of the State Sovereignty Commission created by the said Act No. 83. The Chancery Court held both Acts to be valid and dismissed the complaint. This appeal resulted in which eleven points are urged by appellants against the validity of one or the other of the Acts. For convenience we will consider separately the two legislative enactments.

ACT NO. 83.

This Act is captioned: “An Act Creating the State Sovereignty Commission; Defining Its Powers and Duties; and for Other Purposes.” Sections 1 to 6 concern the creation of the Commission and the persons who are designated or permitted to be appointed as members of the Commission. Sections 7, 8, and 9 of the Act authorize the employment of personnel, payment of expenses, etc. Section 10 lists the powers and duties of the Commission; and portions of this section will be discussed in Topic III infra. Sections 11, 12, 13, 14, and 15 give powers of inspection and examination to the Commission and authorize hearings. Section 11 will be discussed in Topic II infra. Section 16 requires cooperation by other officers and employees of the State with the Commission; Section 17 is the separability clause; and Section 18 is the emergency clause. Some of the eleven points relied on by plaintiffs do not apply to Act No. 83, so we list our own topic headings.

I. The Attach on Sections 2 And 3 Of The Act No. 83. In all there are twelve members of the Commission: the Governor, Attorney General, Lieutenant Governor, and Speaker of the House of Representatives, are ex-officio members; and the other eight members consist of three citizens appointed by the Governor from geographical areas, two State Senators appointed by the President of the Senate, and three Representatives appointed by the Speaker of the House. This point challenges the right of members of the General Assembly to be named to the State Sovereignty Commission. Article Y, Section 10 of the Arkansas Constitution says: “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”

In Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980, we held that the members of the General Assembly could not serve as members of the Refunding Board created by the Act No. 4 of the 1941 Legislature; and we are unable to distinguish the holding in that case from the point here presented. The late and beloved Mr. .Justice Frank G. Smith wrote the opinion in Fulkerson v. Refunding Board; and in his usual clear and fully explanatory manner he said:

“It is alleged that § 1 of Act No. 4 violates §§ 1 and 2, of Art. 4, and § 10 of Art. 5, and § 6 of Art. 18, of the Constitution, and is, therefore, invalid, because it provides that three senators and five representatives shall be members of the Refunding Board.
“We are of the opinion that this objection is well taken, and that these members of the General Assembly are not eligible to serve as members of the board, because of their membership in the General Assembly which enacted the legislation.
“It is thought to be contrary to both the spirit and the letter of the Constitution for the General Assembly to create an office or board or other state agency, and then to fill the place thus created with one or more of its own members. The recent case of Oates v. Rogers, 201 Ark. 335, 144 S. W. 2d 457, announces the policy of the Constitution and laws of this State to separate and keep distinct the departments of government.
“Now, of course, the General Assembly has the right to appoint such committees or commissions, to be composed, in part or wholly, of its own members, to make investigation and report upon any matter related to the discharge of their legislative duties. But the discharge and performance of the details of Act No. 4 is not a legislative matter. It was the sole province of the General Assembly to enact the law. It is the duty of the Judicial department to construe it, and it will be the duty of the executive department to enforce it; and we think it is beyond the power of the General Assembly to confer executive powers upon its members, and we think the appointment of members of the General Assembly to membership on the Refunding Board is in contravention of the spirit, if not the letter, of the sections of the Constitution above referred to. The General Assembly has the power to name the persons, whether officials or not, who shall execute the laws it may pass. For instance, it was held in the case of Cox v. State, 72 Ark. 94, 78 S. W. 756, 105 Am. St. Rep. 17, that the act providing that the members of the Board of State Capitol Commissioners should be elected by the two Houses of the-Legislature is constitutional. But it is a different matter to say that the Legislature might create a capitol or other commission, and thereafter elect its members to the places created.”

The language of § 2 of Act No. 83, here involved, is so similar to that of § 1 of Act 4 of 1941, as regards the members of the General Assembly, that no sound distinction can be made between the decided case and the case at bar. The Governor, the Attorney General, and the Lieutenant Governor are eligible to serve as ex-officio members of the Commission because Art. 6 § 1 of the Constitution, as amended by Amendment No. 6, provides that these officials are executive officers; and the inhibition mentioned in Art. 5 § 10 of the Constitution applies to legislative officers. So the effect of our holding on this point is that there must be removed from the Commission two Senators and three Representatives appointed under §§ 2(c) and 2(d) of Act No. 83, and the Speaker of the House, as appointed under § 2(a) of the Act. Thus, the Commission is left composed of the Governor, the Attorney General, and the Lieutenant Governor, as ex-officio officers, and the three citizens appointed by the Governor under § 2(b) of the Act.

II. The Attach On Section 11 Of Act No. 83. This section reads in part as follows:

“SECTION 11. The members of the Commission and the duly authorized employees and representatives of the Commission when so directed by the Commission shall have the power and authority to examine, during the usual business hours of the day, all records, books, documents and other papers touching upon or concerning the matters and things about which the Commission is authorized to conduct an investigation, and the Commission shall have the power and authority.to require all persons, firms, and corporations having such books, records, documents, and other papers in their possession or under their control, to produce the same within this State at such time and place as the Commission may designate, and to permit an inspection and examination thereof by members of said Commission or its authorized representatives and employees.”

The quoted language brings us face to face with Art. 2 § 15 of the Arkansas Constitution, which reads in part: “The right of the people of this State to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; . . .” We cannot put the stamp of approval on Section 11 of the Act No. 83, which would allow the Commission, or its members or representatives, without search warrants or judicial process, to conduct an examination of the records, books, documents, and other papers, of anyone, just as might be desired. The quoted language of § 11 literally allows the Commission, or its representatives, to go at will and examine all of the books, records, and papers of any person without notice, search warrant, or judicial process. While we are anxious to preserve the State’s sovereignty, we must be just as anxious to preserve the constitutional safeguards of the citizens. The power here granted under § 11 is not like the visitorial powers the State has over corporations (see Hammond Packing Co. v. State, 81 Ark. 519, 100 S. W. 407, 100 S. W. 1199); nor is the power like that which may be exercised by the State in its regulatory power over public utilities. Rather, here, we are dealing with the rights of citizens; and the constitutional guarantees are superior to the legislative enactments.

The Sovereignty Commission has ample power under § 12 of the Act No. 83 to initiate investigations and summon witnesses. It can apply to the Court for subpoena duces tecum; and, under § 13 of the Act, the Commission may apply to a court to enforce its desired process. As we understand y], 12 and 13, the proper court may issue process and hear contempt matters on request of the Sovereignty Commission. As so understood, full judicial protection is accorded; and such is the orderly and constitutional manner of procedure. So we strike § 11 of the Act No. 83 as being unconstitutional.

III. The Claim Of Racial Discrimination. The plaintiffs showed that they were Negro ministers, and claimed that the Act No. 83 interfered with their rights as such citizens. We find nothing in the Act to support such claim. Section 10(d) of the Act No. 83 refers to school integration, and Section 18 also refers to the integration decision.

That the decision in Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R. 2d 1180, and the cases following it, have created a serious condition in the South was recognized by the United States Supreme Court when it was stated that the lower Federal Courts would proceed as the facts in each situation justify. See Brown v. Board of Education, 349 U. S. 294, 99 L. Ed. 1083, 75 S. Ct. 753. So the very nature of the decree in Brown v. Board of Education constitutes judicial recognition by the Supreme Court of the United States that some time will be required— how long none of us can tell — before the opinion of the Supreme Court of the United States in regard to integration in the southern schools can ever be carried into effect. The Legislature of Arkansas, both in § 10(d) and in § 18 of the Act No. 83, has also recognized the same serious situation. But the Act No. 83 is not a racial discrimination act: rather, it is an act to preserve the State’s sovereignty against the gradual encroachments of the Federal Government. As early as 1943 the Legislature of Arkansas perceived that the Federal Government was gradually encroaching on the sovereignty of the States; and the Act No. 166 of 1943 was captioned: “An Act to Provide for the Participation by this State in Organized, Concerted Action of the Several States to Secure the Return to Them After the War of all Normal State Powers Which During the War May Be Exercised by the Federal Government, and to Prevent Further Future Encroachments by Federal Bureaus, Boards, and Commissions, Into the Field of Usual State Functions, by Imposing upon the Attorney General Certain Duties with Respect to Existing and Proposed Federal Legislation.” The present Act No. 83 is a further step by the State of Arkansas to protect its sovereignty against the encroachments of the Federal Government. The administration of Act No. 83 may lead to matters that will require further court action; but we cannot, in this declaratory judgment proceeding, say that the entire Act is unconstitutional on its face. Shuttlesworth v. Birmingham Board of Education, 162 F. Sup. 372; affirmed by U. S. Supreme Court, 358 U. S. 101, 3 L. Ed. 2d 145, 79 S. Ct. 221.

IV. Conclusion As To The Act No. 83. We have carefully studied all of appellants’ attacks on the Act No. 83, and find none to possess merit except those already discussed. The Act has a separability clause; also it is remedial and is neither penal nor criminal: therefore, it is to be liberally construed to effectuate its purposes. For these and other reasons arising because of the rules of statutory construction, it is our duty to strike the invalid portions of the Act No. 83, and allow the other portions to stand. Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. Therefore, we strike § 11 from the Act; also we hold that members of the General Assembly cannot be members of the Commission. To those extents we modify the decree of the Chancery Court; and, as so modified, the decree is affirmed as regards the Act No. 83.

ACT NO. 85.

When we come to Act No. 85, we have a vastly different situation. That Act is captioned: “An Act to Require Persons Engaged in Certain Activities to Register With and Make Periodic Reports to the State Sovereignty Commission; and for Other Purposes.” The Act requires that all persons who collect any money for any of the purposes set forth in § 5 of the Act, register with the Commission and furnish the name and address of every person who makes a contribution. Failure of compliance would result in fine or imprisonment. Section 5 of the Act reads in part:

“SECTION 5. The provisions of this Act shall apply only to such persons who, by himself or through any agent or employee or other person in any manner whatsoever, directly or indirectly, solicits, collects, or receives contributions to be used in whole or in part to aid in the accomplishment of any of the following purposes :
“(a) The passage by the Congress of the United States of any proposed or pending legislation which is designed to limit or circumscribe in any manner the operation and control of school districts in Arkansas by the duly elected and qualified officers, directors, agents and employees of such school districts.”

Thus the Arkansas Legislature has undertaken to require the registration with the State Sovereignty Commission of all persons who collect money to be used, in whole or in part, to influence the passage of certain legislation by the Congress of the United States. Can a State validly enact such, a law to affect the national Congress? That is the question.

The Congress of the United States, by its Act of August 2, 1946, enacted a law commonly referred to as “Regulation of Lobbying.” See U.S.C.A. Title 2, § 261 et seq. This Federal Act provides for certain information to be furnished to the Clerk of the House of Representatives of the United States concerning the sources of all contributions. The Federal Act says in part (Title 2, § 266 U.S.C.A.):

“The provisions of this chapter shall apply to any person . . . who . . . solicits, collects, or receives money ... to aid in the accomplishment of any of the following purposes:
“(a) The passage or defeat of any legislation by the Congress of the United States.
“(b) To influence, directly or indirectly, the passage or defeat of any legislation by the Congress of the United States.”

This Act of the Congress was upheld in U. S. v. Harriss, 347 U. S. 612, 98 L. Ed. 989, 74 S. Ct. 808, so the Congress of the United States has acted in a field in which it has the power to act. It is clear that § 5(a) of the Arkansas Act No. 85 was designed to require some of the same information to be furnished the State Sovereignty Commission of Arkansas that the Act of the Congress of the United States requires to be furnished to the House of Bepresentatives. In the division of State and Federal powers there are some fields of legislation concurrent to both governments; and in other fields of legislative action by the Federal Government within its powers necessarily precludes action by the State Government on the same matter. The holdings on this point are summarized most clearly in 11 Am. Jur. 871, “Constitutional Law” § 175:

“The principle is therefore fundamental that state laws must yield to acts of Congress within the sphere of its delegated power. It is very obvious that where Congress has under the Federal Constitution the right of exercising exclusive jurisdiction and puts forth its power to cover the field, state legislation ceases to have efficacy; for when Congress passes a law in that field of' legislation common to both Federal and State governments, the act of Congress supersedes all inconsistent State legislation. Congress in regulating a matter within the concurrent field of legislation speaks for all of the people and all of the States, and it is immaterial that the public policy embodied in the congressional legislation overrules the policies theretofore adopted by any of the States with respect to the subject matter of such, legislation.”

Furthermore, in 11 Am. Jur. 307, “Conflict of Laws” § 8, the holdings are summarized:

“The States, however, cannot invade a field which belongs exclusively to Congress. Likewise, where Congress has legislated upon a subject which is within its constitutional control and over which it has the right to-as sume exclusive jurisdiction and has manifested its intention to deal therewith in full, the authority of the States is necessarily excluded, and any State legislation on the subject is void. Moreover, the State has no right to interfere or, by way of complement to the legislation of Congress, to prescribe additional regulations and what they deem auxiliary provisions for the same purpose.”

The rules announced in the foregoing quotations are too well recognized to require further discussion. It is clear that the State of Arkansas has no power to enact § 5(a) of the Act No. 85 in the face of the said Federal statute. T1.S.C.A. Title 2, §> 261 et seg. So § 5(a) of the Act No. 85 must be declared void, as we now do.

The next question is the effect of such holding on the entire Act No. 85. In considering Act No. 83, we could strike certain portions and still leave the remainder to be valid. But as regards Act No. 85 the situation is entirely different. The Act No. 85 contains no separability clause, as did Act No. 83. Furthermore the Act No. 85 imposes penalties, and is therefore to be strictly construed for the protection of the citizen. Hughes v. State, 6 Ark. 131; State v. International Harvester Co., 79 Ark. 517, 96 S. W. 119; Fiser v. Clayton, 221 Ark. 528, 254 S. W. 2d 315; Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687. The purpose of the Act was to require the registration of those who would attempt to influence legislation. We cannot say that the Act No. 85 would have been enacted without § 5(a) being a part thereof. We therefore hold that since § 5(a) is void, the entire Act No. 85 must fall.

It therefore follows that so much of the decree of the Chancery Court as held the Act No. 85 to be valid should be and the same is hereby reversed and Act No. 85 is held to be void.

       These points, as contained in appellants’ brief are:
      “1. The Acts constitute class legislation based on the classification of race and color.
      “2. They fix no limits upon the power and authority of the State Sovereignty Commission.
      “3. They are not justified by any proper or lawful governmental objective, nor to achieve same.
      “4. They deprive plaintiffs and other Negro citizens of Arkansas, similarly situated because of their race and color, of their right to Freedom of Speech and Assembly; and, their right of petition secured to them by Article 11, Section 4 of the Constitution of Arkansas and the 14th Amendment as transmitted from the 1st Amendment of the Constití,Hr'n of the United States.
      “5. They compel a person to bear witness against himself.
      “6. They are ex post facto in their nature.
      “7. They interfere with plaintiffs and other Negro citizens of Arkansas, similarly situated, in their right to worship God under the dictates of their own conscience.
      “8. They permit the General Assembly of Arkansas to perform executive functions contrary to Article IV of the Constitution of Arkansas.
      “9. They violate Article V, Section 10 of the Constitution of Arkansas.
      “10. They authorize unlawful search and seizure contrary to Article II, Section 15 of the Constitution of Arkansas.
      “11. They are too vague and indefinite for enforcement, and the alleged ‘emergency’ for inclusion of the Emergency Clause, does not exist.”

       The Supreme Court of the United States said in that case:
      “Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum olf information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. It acted in the same spirit and for a similar purpose in passing the Federal Corrupt Practices Act —to maintain the integrity of a basic governmental process. See Burroughs & Cannon v. U. S., 290 U. S. 534, 545, 78 L. ed. 484, 489, 54 S. Ct. 287.
      “Under these circumstances, we believe that Congress, at least within the bounds of the Act as we have construed it, is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection. And here Congress has used that power in a manner restricted to its appropriate end. We conclude that §§ 305 and 308, as applied to persons defined in § 307, do not offend the First Amendment.”

       Section 8 of Act 85 reads: “Any person who violates any of the provisions of this act shall, upon conviction, be guilty of a misdemeanor and shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than twelve (12) months, or by both such fine and imprisonment.”


author: George Bose Smith, J.

text:
    Baker v. Boone.
    5-1862
    327 S. W. 2d 85
    Opinion Delivered September 14, 1959.

      Max Howell, for appellant.

      Odell Pollard and Robert G. Downie, for appellee.
   George Bose Smith, J.

The appellees filed a proceeding in the county court to contest the outcome of a local option election at which the voters of White County apparently voted for the manufacture and sale of intoxicating liquors. The complaint asserted that the election officials had sealed up in the ballot boxes the only copies of the lists of persons voting at the election and that the information contained in those lists was needed by the plaintiffs in the preparation of the contest. At a preliminary hearing the county court entered an order which in substance directed the appellants, as members of the county board of election commissioners, to produce the ballot boxes so that the lists might be removed in open court and made available to the contestants.

The appellants immediately petitioned the circuit court for a writ of certiorari to review the validity of the county court’s order. The matter was submitted to the circuit court upon a transcript of the county court proceedings and resulted in an affirmance of the county court’s order. This appeal followed.

Without exploring any question that might be raised about the finality of the circuit court’s judgment we think it plain that the county court was right in making the lists available to the contestants. Local option elections are to be conducted in accordance with, the laws governing general elections. Ark. Stats. 1947, §§ 48-802 and 48-808. The controlling statute requires the election clerks to keep an accurate list of all persons voting in each precinct and directs that the original list be filed with the county clerk as a public record subject to inspection by any interested person. Ark. Stats., % 3-919. In construing similar laws we have upheld the contestant’s right to examine the voting lists, Bowden v. Webb, 116 Ark. 310, 173 S. W. 181; Brooks v. Pullen, 187 Ark. 80, 58 S. W. 2d 682; and we have no doubt that the same interpretation must be placed upon the present statute if effect is to be given to the legislature’s purpose in requiring that the lists become a matter of public record.

Affirmed.