author: Frank Holt, Justice. John I. Purtle, Justice, Darrell Hickman, Justice,

text:
    HEBER SPRINGS SCHOOL DISTRICT et al v. WEST SIDE SCHOOL DISTRICT et al
    80-11
    599 S.W. 2d 371
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980
    Rehearing denied June 30, 1980

      Pope, Shamburger, Buffalo & Ross, by: John K. Shamburger and Robert D. Ross, for appellants.

      Dan Stripling, for appellees.
   Frank Holt, Justice.

This case is a sequel to Thomas v. Foust, 245 Ark. 948, 435 S.W. 2d 793 (1969), where we held Act 407 of 1965 was local legislation, being nonprospective, and therefore violative of Amendment 14 to our state constitution. Following that decision, the legislature enacted Act 390 of 1979 in an effort to achieve constitutionality. The trial court held that act invalid. Hence this appeal.

In 1963 appellee West Side School District was severed in two parts by a reservoir formed by Greers Ferry Dam. The smaller area is referred to as the Beloit Bay/Eden Isle (BB/EI) area. In 1978-1979, the 37 students living in the BB/EI area attended school in appellant Heber Springs District by tuition agreement as students had in previous years. The agreement provided that appellee West Side District would pay appellant Heber Springs $625 per student ($23,000 total) for tuition expenses. Westside received $13,-000 to $14,000 from the Arkansas Minimum Foundation Program for the students’ expenses, and approximately $75,-000 per year from property taxes attributable to the BB/EI area. The instant controversy arose when the smaller portion, BB/EI area, sought annexation to appellant Heber Springs School District, an adjoining district, pursuant to Act 390 of 1979- The proposed annexation would result in a loss of revenue to appellee West Side School District.

The act provides that a portion of a severed district may annex to an adjoining district whenever it is or becomes completely severed by a reservoir containing more than 12,-000 acres, and the students in the severed area have to travel more than 35 miles round trip through another district or districts in order to attend school in their severed district. BB/EI successfully sought annexation to appellant Heber Springs District. Appellee (and a taxpayer) appealed to the circuit court asserting that Act 390 was unconstitutional. Appellees’ injunctive proceedings in chancery were transferred to circuit court and the cases consolidated for trial purposes. The primary issue on appeal is whether the court erred in finding that the classifications in Act 390 are artificial, arbitrary, and illusory, and therefore the act is local legislation in violation of Amendment 14 of our state constitution.

The trial court reasoned and the appellees agree that the 35 mile round trip requirement bears a reasonable relation to the purpose of the act. The appellees argue, however, that the court correctly observed:

There is not a reasonable relationship between the existence of a reservoir, the size of a reservoir or whether the students have to travel through another school district and the purpose of Act 390 or the objectives Act 390 is seeking to attain. The classifications Act 390 attempts to make are artificial, arbitrary and illusory.

In Davis v. Cox, 267 Ark. 78, 593 S.W. 2d 180 (1980), we reiterated long established rules of statutory construction:

There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. (Cites omitted) 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.

Further, in Thomas v. Foust, supra, we said:

The fact that a law is limited in effect to only one or a few classifications does not necessarily condemn it as special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the act.

In matters of education, we have long recognized that our constitution (Article 14, § 1, as amended) vests in the legislature the duty and the authority to make provisions for the establishment, maintenance and support of a common school system in our state. LeMaire v. Henderson, 174 Ark. 936, 298 S.W. 327 (1927). There we said:

To effectuate the purposes of the Constitution, this court has recognized generally that the Legislature has what is commonly called a free hand in the establishment and division of the State into school districts. . . . The Legislature recognizes the difference in population, wealth, and the topography of the country in the organization of school districts. (Cites omitted.) The density of population, the wealth of the country, the system of roads and the topography of the country with reference to whether it is hilly or not, may be taken into consideration. This is the legitimate office of classification, and, so long as the Legislature makes a reasonable classification which is uniform in its operation, its power is supreme in the matter.

There we upheld a school consolidation act based on county population; i.e., 75,000 or more.

Thomas v. Foust, supra, involved practically the same geographical area which sought, as here, annexation to the Heber Springs district. There Act 407 of 1965 provided that any portion of a school district which was severed from that district by a reservoir could annex to an adjoining district if the students in the severed area had to travel more than 20 miles and pass through another district to attend school in their district. The act was restricted to districts only where students from the severed area were attending school in the adjoining district on January 1, 1964. We found that the time limitation made application of the act nonprospective, thereby creating an arbitrary and inappropriate classification. We specifically noted, however, that it “may well be that such a classification [absent the time limitation] would bear a reasonable relation to the purposes of the act, and not be arbitrary.”

Act 390 of 1979 is similar in many respects to Act 407 of 1965 absent the infirmity of being nonprospective. As previously indicated, Act 390 applies to a school district which is or becomes completely severed by a 12,000 acre reservoir and students residing in the severed area must travel 35 miles or more through another district or districts to continue attending school in their severed district. It establishes a procedure whereby a completely separated portion of a school district may, if it desires, seek annexation to an adjoining district, even though it would cross country lines, for the purpose of alleviating problems caused by the severance, such as increased transportation costs, extensive and dangerous travel, administrative inconvenience and confusion. The severance, in effect, prevents pupils “from attending school in the district where they reside,” causing a burden to other school districts. The nonprospective limitation which invalidated Act 407 is absent here. Also, the trial court, as trier of the facts, found that eight or nine districts in the state fell within the ambit of Act 390, whereas the lower court in Thomas v. Foust, supra, found that only one area, namely, the severed portion of West Side District, qualified for annexation under Act 407. Additionally, the present act permits annexation by crossing county lines, which is not present here. Certainly, by its terms, Act 390 is not local in applcation. We think the classification bears a reasonable relation to the purpose of the act. It is germane to the problems which the legislature sought to correct as to when and where annexation of an adjoining school district may be desirable for beneficial education purposes.

Appellants next argue that the court erred in holding Act 390 is “probably” violative of the equal protection clause of the 14th Amendment to the United States Constitution. For the reasons just discussed, we are of the view that the act does not impinge upon the equal protection clause of that amendment. See Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974); Davis v. Cox, supra; Harlow v. Ryland, 78 F. Supp. 488 (E.D. Ark. 1948), aff'd. 172 F. 2d 784 (8th Cir. 1949).

Appellants further contend that upon a reversal, we should determine what date property taxes attributable to the annexed area should be paid to appellant Heber Springs District. In the absence of a ruling by the circuit court, as trier of the facts, this issue will best be determined upon a remand.

On cross-appeal, appellee West Side asserts that the trial court erred in failing to hold that Act 390 of 1979 violates the due process clause of the 14th Amendment to the United States Constitution. Appellee recognizes that the due process clause of the federal constitution is applicable only when a school district is determined to be a person within the meaning of that clause. Further, although there are exceptions, school districts are generally considered creatures of the state and may not avail themselves of all constitutional safeguards. Suffice it to say that Act 390, other related and applicable acts, and specifically § 80, Act 1969 of 1931 (Ark. Stat. Ann. § 80-423 [Repl. 1969]) provide a reimbursement formula for the benefit of appellee West Side School District for loss of revenue it suffers from the annexation as well as a readjustment of any obligations the district has.

Reversed and remanded.

Purtle, J., concurs.

George Rose Smith, Hickman and Mays, JJ., dissent.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority in this case but for a paritally different reason.

The majority correctly cites many prior Arkansas cases supporting the opinion; however, I am of the belief that this situation is clearly local or special legislation as defined in Amendment Fourteen as initiated and approved by the citizens of Arkansas in 1926. The obvious intent of Amendment Fourteen was to prevent the abuse of passing local and special laws which had previously been authorized in article 5, § 24, 25 and 26. As far as I am concerned, our past decisions are a hopeless conflict because we could decide this case either way and cite numerous cases in support of the opinion. I think it is time to start drawing the line on special and local legislation.

We have upheld acts as general which apply to only one person. Sebastian Bridge District v. Lynch, Chancery Clerk, 200 Ark. 134, 138 S.W. 2d 81 (1940); and Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647 (1932). On the other hand, we have held an act to be special and local when it affected the assessor in one county. Inman v. Kelley, County Treasurer, 229 Ark. 149, 313 S.W. 2d 796 (1958). We also held a law exempting certain counties from the provisions thereof to be local and thereby invalid. Jacks v. State, 219 Ark. 392, 242 S.W. 2d 704 (1951).

Although I think this act is special and local, I believe it is valid pursuant to the provisions of article 14 § 1 to the Constitution of Arkansas. In fact, we have stated that the legislature may control the arrangement and management of school districts at will. Krause v. Thompson, 138 Ark. 571, 211 S.W. 925 (1919). In Krause the General Assembly abolished district number 41 and annexed it to district number 39, and they also abolished district number 19 and split it between two other districts. We upheld the act pursuant to article 14 § 1 and further stated that legislative control and changes of school districts is supreme. Amendment 53 did not change the power of the General Assembly to control school districts in a manner which the legislature deemed appropriate.

Therefore, I would reverse the decree of the lower court for the reason that the General Assembly has the power to abolish or rearrange school districts in any manner they wish pursuant to article 14 § 1.

Darrell Hickman, Justice,

dissenting. It is my judgment that the Act in this case was local and special legislation in violation of Amendment 14 to the Arkansas Constitution.

As the majority points out, we previously held that similar legislation regarding this same school district was invalid in 1969.

It is not denied the new Act was passed to settle the controversy between the West Side School District and the Heber Springs School District. However, the appellants argue that the Act is general in its application and, therefore, does not violate Amendment 14 to the Constitution. In Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617 (1929), we said:

A law is special in a constitutional sense, when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon, but for such separation, it would operate.

Act 390 of 1979 makes a distinction between school districts which are divided by a 12,000 acre reservoir, have students who must be transported 35 miles round trip through another school district, and all other school districts. We have held that such classifications cannot be arbitrary or elusive but must refer to the subject matter of the legislation. Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991 (1931).

The purpose of the legislation in this case was to prevent dangerous travel and burdensome administration.

What has this got to do with a 12,000 acres reservoir? Is there any difference between students who live in such a school district and must travel 35 miles round trip, from those who live in any other school district? I cannot find a substantial distinction in such classifications.

One witness testified, rather vaguely, that other school districts might be involved, but there was no evidence at all to show that any other school district in the State of Arkansas had one student who had to travel 35 miles around a reservoir.

The law generally provides that a change in a school district must be approved by both school districts. Act 390 is designed to circumvent that law.

The chancellor held that this was local and special legislation and I agree with that decision. I would affirm the decree.

Georse Rose Smith and Mays, JJ., join in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice. George Rose Smith, Justice, John I. Purtle, Justice,

license: Public Domain

text:
    John F. WELLS, et al v. Paul RIVIERE, Secretary of State of the STATE of Arkansas
    80-100
    599 S.W. 2d 375
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      James F. Lane, for appellants.
    . Steve Clark, Atty. Gen., by: Russell Meeks, Deputy Atty. Gen., for appellee.

      W. J. 'Williams, of Wright, Lindsey & Jennings, for intervenor, Robert Harvey.
   Darrell Hickman, Justice.

The question presented by this appeal concerns the constitutional authority of the Arkansas General Assembly to act after a regular 60-day session. In order to properly examine that issue, it is necessary to relate in detail the proceedings in the trial court and the undisputed facts.

This suit began in the Chancery Court of Pulaski County. John F. Wells filed a taxpayers lawsuit, individually and on behalf of the Independent Voters of Arkansas, Inc. against Paul Riviere, the Arkansas Secretary of State. Wells sought an injunction to prevent Riviere from proceeding to place three proposed constitutional amendments on the ballot in the General Election of November, 1980.

The three proposed constitutional amendments relate to the assessment of property and taxation (Senate Joint Resolution 1), usury (House Joint Resolution 9, and the jurisdiction and venue of Arkansas courts (House Joint Resolution 10.)

Robert Harvey, a taxpayer, was allowed to intervene in support of the validity of the property assessment and taxation amendment, Senate Joint Resolution 1.

The parties stipulated to the relevant facts, and all parties filed motions for summary judgment. The chancellor found that the three proposed amendments to the Constitution had been properly adopted by the General Assembly and denied the request for an injunction.

There are no procedural problems with this case. The appellants have the right to sue as taxpayers to prevent an illegal exaction. Ark. CONST, art. 16, § 13. The chancellor also had jurisdiction.

The question to us is one of the constitutional authority granted to the legislative branch of Arkansas government. The General Assembly is authorized by Ark. CONST, art. 19, § 22 to propose amendments to the Constitution. However, the proposed amendments cannot exceed three in number and must be approved by a majority of the members of each house at a regular session of the General Assembly.

The appellants argue that since the proposed amendments were not approved at a regular session, they were not legally proposed and should not be certified to the voters for approval or rejection.

There are only two kinds of sessions of the General Assembly in Arkansas. A regular biennial session of the General Assembly is provided for in Ark. CONST, art 5, §§ 5 and 17.

The only other session of the General Assembly authorized by the Arkansas Constitution is one convened by the governor on extraordinary occasions. Ark. CONST, art 6, § 19- Purcell v. Jones, 242 Ark. 168, 412 S.W. 2d 284 (1967). It is agreed that the General Assembly was not in a special session when it approved the three proposed amendments.

The facts are that the Seventy-Second General Assembly of Arkansas convened at its regular session on January 8, 1979. After it convened, Senate Concurrent Resolution 14 was adopted extending the sixty-day regular session. The resolution provided that the General Assembly found that it would be impossible to consider all the measures introduced within sixty days and, therefore, an extension of the regular session was necessary. There was no time limit to the extension.

On April 4, 1979, the General Assembly recessed; it reconvened on April 20, 1979- On April 20th, by Senate Concurrent Resolutions 91 and 92, the regular session recessed for 20 months until January, 1981.

Senate Concurrent Resolution 91 actually provides five things, First, it confirmed that the General Assembly had extended itself indefinitely. Second, it says that it may reconvene on May 9, 1979, for limited purposes. Third, it says it may reconvene the second Monday in January, 1980. Fourth, it says, notwithstanding these other three provisions, the regular session of the Seventy-Second General Assembly is extended until the second Monday in January, 1981. That is the same day that the next General Assembly, the Seventy-Third, convenes. The resolution concludes by providing that the Speaker of the Flouse of Representatives and the President pro tern of the Senate may reconvene the Seventy-Second General Assembly at any time by their joint proclamation.

The actual language of the resolution in each regard is as follows:

First, regarding the indefinite extension,

WHEREAS, the regular session of the Seventy-Second General Assembly has been extended indefinitely in the manner authorized in the Arkansas Constitution . . . [Emphasis added.]

Second, regarding the reconvening of the General Assembly in May:

SECTION 3. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly may be reconvened on the Wednesday, May 9, 1979 by joint proclamation of the Speaker of the House' of Representatives and the President Pro Tem of the Senate declaring the need for such reconvened session. In the absence of such proclamation, the Seventy-Second General Assembly shall continue in recess as provided in this Resolution. [Emphasis added.]
Any session reconvened pursuant to this Section 3 shall be for the sole purpose of:
(1) correcting errors going to the validity of bills passed prior to the recess,
(2) appropriate action on fiscal matters including but not limited to appropriation bills, revenue bills, purchasing and accounting procedures, and revenue classification and allocation,
(3) reconsideration of bills or parts of bills disapproved by the Governor,
(4) referral of matters to standing, select, or special committees or to the Joint Interim Committees for action or study, or
(5) matters of rules and procedures.

Upon recess of a session reconvened pursuant to this Section 3, all business then pending in committee or on the calendar shall become a nullity, except a proposed amendment of the Arkansas Constitution previously adopted by both houses and except matters of rules and procedures.

Third, relating to the reconvening in January, 1980:

SECTION 4. Notwithstanding other provisions of this Resolution, the Seventy-Second General Assembly shall reconvene on the second Monday in January, 1980, unless the Speaker of the House of Representatives and the President Pro Tem of the Senate by joint proclamation declare that there are no substantive matters requiring the attention of the Seventy-Second General Assembly. In the event that the Speaker of the House and President Pro Tem of the Senate determine that there is no need for reconvening of the Seventy-Second General Assembly on the second Monday in January, 1980, the Seventy-Second General Assembly shall continue in recess as otherwise provided herein. [Emphasis added.]

Fourth, Section 1 declares that the General Assembly is recessed until the same day that the Seventy-Third General Assembly is convened. It reads:

SECTION 1. At the close of business on a day mutually agreed to by the House of Representatives and the Senate pursuant to this Resolution, the Seventy-Second General Assembly shall stand in recess until the second Monday in January, 1981, at which time, prior to the convening of the Seventy-Third General Assembly, the Speaker of the House of Representatives and the President Pro Tem of the Senate of the Seventy-Second General Assembly shall adjourn their respective bodies sine die, unless the Seventy-Second General Assembly shall, at an earlier session thereof, decide on an earlier date for sine die adjournment. [Emphasis added.]

Fifth, the language of the resolution regarding reconvening at any time reads:

SECTION 5. The Seventy-Second General Assembly, standing in recess, may be reconvened at any time by joint proclamation of the Speaker of the House and President pro tem of the Senate or by joint address of a majority of the members elected to each house of the Seventy-Second General Assembly. [Emphasis added.]

Apparently the General Assembly did not reconvene in May as provided for in Section 3.

It did reconvene in January, 1980, and at that “session” adopted the three proposed amendments in question. After adopting these proposals, it recessed again, still not adjourning sine die. It is still in an “indefinite recess” or “indefinitely extended” until January, 1981. Was the “session” in January, 1980, a regular session, a lawful extension of a regular session? If it was not, the proposed amendments were not properly adopted because a legislature cannot enact legislation after the expiration of its session. State, ex rel Heck’s Discount Center, Inc. v. Winters, 147 W. Va. 861, 132 S.E. 2d 374 (1963). See also, Dillon v. King, 87 N.M. 79, 529 P. 2d 745 (1974).

The Arkansas Constitution provides only for biennial session of the General Assembly. Ark. CONST, art 5, § 5.

Section 5. Time of meeting — The General Assembly shall meet at the seat of government every two years on the first Tuesday after the second Monday in November [second Monday in January] until said time be altered by law.

The duration of such a session is controlled by Article 5, § 17, which reads:

Section 17. Duration of sessions. — The regular biennial session shall riot exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said General Assembly. . . .

A fair reading of the Constitution cannot mean that the General Assembly can legally extend a session indefinitely for no valid legislative purpose, nor indefinitely go into a recess so that it may later reconvene itself and conduct its business as though it were in a regular session.

On the other hand, there is no doubt, that by two-thirds vote of the members of the General Assembly, a regular session can be lawfully extended beyond the sixty days of a regular session. Ark. CONST, art 5, § 17. It is a question of fact as to whether such an act is lawful.

When all the relevant provisions of the Arkansas Constitution are read together, the Constitution prohibits the General Assembly from legally doing what it did in this case.

Article 5, § 17 says: “The regular biennial session shall not exceed sixty days in duration.” Article 5, § 5 provides only for a meeting of the General Assembly every two years. Article 6, § 19 gives the governor power to convene the General Assembly on extraordinary occasions. Those are the Constitutional provisions limiting the sessions of the General Assembly to one biennial 60-day session, unless lawfully extended. In Purcell v. Jones, supra, we said:

... It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301. The Constituttion is to be construed according to the sense of the terms used and the intention of its authors. Rankin v. Jones, 224 Ark. 1001, 278 S.W. 2d 646.

There is no doubt that the General Assembly sees its duty in these modern times as requiring it to be available at all times to handle the business of this state. But that belief cannot be realized by circumvention of Arkansas’ 1874 Constitution.

The General Assembly does a great deal of its work through its committees and the Legislative Council, which meet regularly throughout the year. With this general practice there is no legal quarrel. However, a session of the General Assembly is one essentially involving the function of considering and passing legislation; it necessarily involves the entire legislative branch of government, and in that regard the Constitution limits the meeting of the General Assembly to a regular biennial session that can only be extended to finish legislative work — passing on legislation.

The General Assembly found on April 20, 1979, in its resolution approving the indefinite recess, that it had completed its business. That resolution, Senate Concurrent Resolution 92, begins:

WHEREAS, the Seventy-Second General Assembly has completed its essential business-, . . . [Emphasis added.]

Thereafter, Resolution 92 approved Senate Concurrent Resolutions 91 which we have quoted almost in its entirety.

If we were to approve Senate Concurrent Resolution 91, and actions of the General Assembly in this case, on these facts, we would be holding that the General Assembly can extend itself indefinitely, meet at any and all times, monthly, biannually or annually for any and all reasons. The General Assembly simply does not have that power under the Arkansas Constitution; Arkansas’ Constitution contemplates the General Assembly will convene once every two years, meet for 60 days, or longer if necessary, but finish its buisness and go home. Only the executive branch of government is granted the authority to reconvene the General Assembly if it becomes necessary.

Also, too many of the provisions of the Constitution would become meaningless if the General Assembly could act as it proposes. For example, only the governor has the authority to call the General Assembly into a session after a regular session. That is an important constitutional power granted to the executive branch of the government. It would become meaningless if the General Assembly could meet any time it chose and call it a regular session. The same provision that authorizes the governor to convene a special session of the General Assembly does grant the General Assembly the authority to remain in session for no more than 15 days, after it has finished with the governor’s business. That is a grant of power to the General Assembly to check any abuse of power by the executive branch in calling a special session.

The appellee, and especially the intervenor, argue that Resolution 91 left open the question of a constitutional amendment regarding property taxation and, therefore, the General Assembly could properly consider arguments to the Constitution in its meeting in 1980. It is argued that such a subject was pending legislation at the time the General Assembly recessed and that it could be lawfully considered at a later time. It is true that both houses of the General Assembly had approved a proposed amendment to the Arkansas Constitution regarding property taxation. However, at the same time it is conceded there had been no joint approval of any other amendments. The usury and court jurisdiction amendments were first approved by both houses in January, 1980 and even the proposed amendment regarding property taxation, as it was finally approved in January, 1980, was a different proposal than that approved back during the regular session in 1979- A vague reference in Resolution 91 referring to any jointly approved proposed amendments is not enough to justify holding that the meeting of the General Assembly of 1980 was a lawful extension of a regular session. That is too small a nail upon which to hang such a large cloak. If Resolution 91 is anything, is is a claim, clearly staked out by the General Assembly that it can meet at any time and consider any subject matter that it deems proper. Such a posture, if approved, would strike a serious blow to the checks and balances that e-xist in Arkansas government, severely limiting the constitutional authority of the executive branch of government. Consequently, we cannot accept this argument in the light of all the other language in Resolution 91.

We do not mean to unduly limit the authority of the General Assembly to go into recess, adjourn or reconvene as it is necessary to finish its business. That authority is clear. And essentially the General Assembly decides — not we — whether it has finished its business and whether an extension of the regular session is required. But even a conceded power can be exercised in an unconstitutional manner. While a legislative declaration creates a strong presumption of legality, that presumption can be rebutted by objective facts that are inconsistent with such a declaration. Are there sufficient facts to' find that the General Assembly had a purpose in recessing for 20 months? We do not find evidence to support such a purpose. For example, in Senate Concurrent Resolution 14 the General Assembly determined the regular session had to be extended in order for it to finish its regular business. Then, rather than staying in the regular session, it was decided that the General Assembly would go into a recess for 20 months. What action could the General Assembly take in January, 1981? All pending business had been declared void except a reference to proposed constitutional amendments that may have passed both houses. Such proposed amendments could not have been taken up in 1981 because that is a time beyond the election which would ■decide the validity of such amendments. Consequently, what purpose could the General Assembly have had in recessing for 20 months? While Resolution 91 declared that it might be necessary to reconvene in May of 1979 and January, 1980, at the same time the May session could only be convened by order of the Speaker of the House of Representatives and the President pro tem of the Senate, and the January, 1980 session would be held unless those same officials declared the session unnecessary. On the one hand the General Assembly declares that it needs to meet, then it recesses for 20 months. On the other hand the General Assembly declares that it has finished its essential business, but now argues that it has pending business that it can consider at any time during the 20-month recess. Now it is argued that any constitutional amendments can be considered because reference was made to those that had passed both houses. All pending matters were voided, but now it is argued new subjects may be addressed. Such an argument can only be based on the broad lánguage in Resolution 91.

The intent of the General Assembly, gathered from all of the evidence, is that it did not legally recess or attempt to extend a regular session to finish its regular business. Most important, is the attempt by the General Assembly to recess for 20 months, reserving the power to call itself back at any time for any purpose. That is the concept, without any real purpose, that exceeds the constitutional power of the General Assembly to extend a regular session — the claim of the right to recess and reconvene for any reason the General Assembly later deems necessary. We can only conclude that the actions of the General Assembly in January, 1980, were not during a lawful extension of a regular session.

We do not have the question before us of whether it would have been lawful for the legislature to meet in May, 1979, as it proposed, and consider legislation or matters that were set out in detail in Resolution 91. The facts would support such action by the General Assembly. What we have before us is a meeting the next year called pursuant to the other language in Resolution 91-

In an affidavit, by the Speaker of the House, which is part of the record, it is stated that committees of the Seventy-Second General Assembly are actively engaged in handling legislative matters and this fact, as well as others, are evidence that the General Assembly had not completed its official business. Work through committees is not the same as work by the General Assembly in a session when all its members are present or authorized to be present.

When we review all the facts, we can only conclude that the regular session of the General Assembly of 1979 was not extended lawfully to 1980 as claimed by the appellee and the intervenor.

Finally, it was contemplated, with good cause, that proposals made by the General Assembly to change the Constitution would be proposed at a regular session. Time is an important factor. Those amendments must be published in newspapers at least six months in advance of the general election. Ark. Const, art 19, § 22.

We do not even imply that we have the authority to dictate to the General Assembly, the legislative branch of this state government, how it proceeds about its business. It can convene as it pleases. Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979). However, whether its acts are lawful is a matter for this court. That was decided by the United States Supreme Court in an opinion written by Chief Justice John Marshall in Marbury v. Madison, 1 Cranch 137 (1803).

The result of our views is that a majority of the Court, consisting of Justices George Rose Smith, Hickman, Purtle, and Mays, hold that the usury amendment and the jurisdiction amendment were not proposed at a regular session of the General Assembly and therefore should not be placed on the ballot. A different majority, consisting of the Chief Justice and Justices Holt, Purtle, and Stroud, hold that the property tax amendment was properly proposed and should be placed on the ballot. The decree of the trial court is therefore affirmed in part and reversed in part.

George Rose Smith and Mays, JJ. join in this opinion.

Purtte, J., concurs in part and dissents in part.

Fogieman, C.J., Holt and Stroud, JJ., dissent.

George Rose Smith, Justice,

concurring. I join in Justice Hickman’s opinion, but I wish to add the dissenting opinions of the Chief Justice and of Justice Stroud are fundamentally in error in assuming that the court is passing upon the validity of an exercise of legislative power. That power is almost invariably defined as the authority to make, alter and repeal laws. See Gregory v. Cockrell, 179 Ark. 719, 18 S.W. 2d 362 (1929).

Our Constitution has a great deal to say about the enactment of laws, which is the exercise of legislative power. No láw shall be passed except by bill. No bill shall become a law unless it has an enacting clause and is passed in a certain way. All bills are subject to the governor’s veto and to possible approval or disapproval by popular referendum.

The General Assembly’s power to make, alter, and repeal laws is not even involved in this case; so the presumption of legislative authority has nothing to do with the question. We are simply interpreting part of that language in the Constitution which creates the framework of state government — here the legislative branch. The authors of the Constitution declared in the clearest imaginable language that the General Assembly shall meet every two years. in a 60-day regular session, that the General Assembly may extend the regular session by a two-thirds vote, and that between regular sessions the governor may call the legislators into special session. The language of the Constitution is so plain that it really needs no interpretation. But if, as the dissenting opinions argue, the decision of the General Assembly to recess indefinitely is an exercise of legislative power, then the General Assembly has become the final interpreter of the Constitution.

John I. Purtle, Justice,

concurring in part; dissenting in part. The issues presented, here are extremely important to every citizen of the state of Arkansas. Having no precedent or case law to guide our opinion, we are left with only our common sense and our power to reason. It is only natural that there are differences of opinion in matters of such importance which have not previously been interpreted by the courts.

In order to set forth a rational and logical basis for this concurring and dissenting opinion, I believe it is best to begin with the Preamble of the Constitution of the State of Arkansas which states:

We, the people of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government, for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and posterity, do ordain and establish this Constitution.

The source of power is described in Art. 2 § 1, Constitution of Arkansas:

All- political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.

The separate departments of government were established by the people in Art. 4 § 1 as follows:

The power of government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.

The constitution next separates the three governmental departments by prohibiting any person or persons in one department from exercising any power inherent to either of the other two departments. Art. 4 § 2. Naturally, the legislative powers granted by the people rest in the Senate and House of Representatives. Neither the legislative, executive or judicial departments have any power not granted to them, by the people, in the constitution and amendments thereto.

The people declared through Art. 5 § 17 that the regular biennial session of the legislature shall not exceed 60 days unless such session is extended by a two-thirds vote of each house of the General Assembly. Several other specific restrictions were expressly provided. However, the plain reading of the constitution clearly demonstrates the people did not intend the General Assembly to remain in session for two years. It is likewise apparent that the people reserve to themselves the right to change the constitution as they think proper. Up until this time the citizens have not seen fit to change the constitution to require or allow the General Assembly to. remain in permanent session. No doubt, the people anticipated the possible need for sessions of the General Assembly between regular sessions; and, for this purpose, they wisely provided for extra sessions through Art. 6 § 19 which states:

The Governor may, by proclamation, on extraordinary occasions convene the General Assembly . . . and he shall specify . . . the purpose for which they are convened .. . after which they may, by a vote of two-thirds of all the members . . . remain in session not exceeding fifteen days.

This being a case of first impression, we should face the issue squarely and use our common sense in trying to interpret the intent of the people when they adopted the constitution. Obviously, the voting citizens expected the General Assembly to complete its business on the basis of a biennial 60-day regular session. It is also apparent that the people realized there might be times when the General Assembly could not complete its work within the 60 days allotted; therefore, they added the provision for extending the session. No doubt, the extension was intended for the time necessary to complete the business then pending before the General Assembly. It seems obvious the people expected the General Assembly to adjourn sine die after completion of all pending business.

It is not unreasonable to read into the powers granted to the legislative branch the right to recess to afford adequate time to prepare the materials necessary to intelligently complete any pending business. There is not the slightest hint that the people intended an “on again”/“off again” session extending over the entire biennium. It was with the expectation that the General Assembly would stand adjourned after completion of its business that the Governor was given authority to convene the General Assembly. Otherwise, there would have been no need to grant the Governor this power.

Even then, a safety valve was attached to the special sessions which might be called by the Governor; and, that safety valve allowed the special session the right to remain in session after the expiration of the Governor’s extraordinary session for a period of 15 days. Had the people desired the General Assembly to remain in recess after completion of pending business, this matter would have been easy and simple to state.

As noted earlier in this opinion, the people reserve the right to change the constitution as they deem proper. In furtherance of this idea, Art. 19 § 22 provided the General Assembly with the authority to propose up to three constitutional amendments during a regular session. The General Assembly was not empowered to change the constitution but was merely empowered to suggest changes for the consideration of the people. Subsequently, the people realized the General Assembly could not possibly propose all the changes the general public thought were needed; therefore, amendment VII to the constitution was adopted in 1920. This amendment specifically provided the procedure to be utilized by the people in proposing changes to the constitution. Amendment VII also provided a means for the people to ratify or reject actions taken by the General Assembly. The referendum part of amendment VII states in part:

. . . Such petition shall be filed with the Secretary of State not later than ninety days after the final adjourn- ' ment of the session at which such act was passed, except when a recess or adjournment shall be taken temporarily for a longer period than ninety days; . . .

It appears the people had realized the General Assembly may need to recess for a period in excess of 90 days. Nevertheless, it is still obvious they expected the General Assembly to recess up to the day before the commencing of the next assembly could allow a referendum petition to be filed in March of 1981 on a measure enacted in January of 1979. Such results were clearly not intended nor envisioned by the people of Arkansas when they adopted the constitution and amendment VII.

The 72nd General Assembly convened on January 8, 1979, and remained in continuous session until April 4,1979- At that time it recessed until April 20, 1979, and on this day it convened and recessed until January 7, 1980. After meeting for ten days it then recessed, on January 17, 1980, until January 1981. Thus, we see the 72nd General Assembly has had or will have had at least four sessions during the two years for which it was elected. If the legislature has this power, it has the power to convene and recess as often as it desires for the entire two years.

I feel the majority opinion would in some instances thwart the intent of the framers of the constitution in allowing a reasonable extension of a session in order to allow for adequate preparation for completion of exceptional matters which sometimes confront the General Assembly. Although it is unusual to allow a recess as long as the one under consideration, it is not beyond reason. Therefore, I would hold under exceptional circumstances and for good cause shown a recess of several months is not absolutely beyond the limitations of the present constitution.

Nothing in this opinion is intended to indicate that this Court has any authority to supervise or control the activities of the legislature. It is, as stated in the majority opinion, an effort to determine the validity of certain actions taken by the General Assembly. It cannot be seriously argued that there is no limit to the authority of the General Assembly, and it cannot be argued that there is no limit to the power or authority of the executive or judicial branches of the government. All three branches are limited to whatever power the people delegated to them in the constitution and the subsequent amendments.

By placing limits on the regular and special sessions of the General Assembly, it is obvious there was no intent by the people to permit the legislature to remain in continuous session. Present proposals for constitutional changes do not include any provisions for them to remain in session for the entire biennium. To me, these are clear indications that the intent of the people was to allow the General Assembly enough time to complete action on all matters pending before it at a regular session.

A reasonable and logical interpretation would be to allow the General Assembly to extend a regular session for the period of time necessary to complete pending business. A necessary incident to this procedure would be to allow a recess for a period of time needed to allow a committee or committees to obtain information needed to complete the pending proposals before the entire assembly acted upon the matters.

In adherance to the ideas expressed above, I would hold the General Assembly was acting within its authority in declaring a recess to study the property tax proposal which was before it at the regular 72nd General Assembly. The fact that the proposal was modified after the recess did not change the nature of the pending business. There was, no doubt, general concern among the members of the General Assembly as to results of a recent Supreme Court decision relating to property taxes. Obviously, more information and time were needed to present a sound proposal to the people. Unless the General Assembly, or someone else, submitted an acceptable proposal, this property tax matter would have been left to the local authorities.

If the Supreme Court decision had the effect of increasing the county, city, and school district taxes, this increase would be determined by the local authorities whether to accept the higher rates or change them because they have the power to do so. If, for example, a county had over the years paid only a part of its present legal obligation, its taxes would be raised to the standards set by the constitution and combined with a vote of the local taxing authorities. On the other hand, if another county had been paying more than its share of the taxes, it would be free to vote the rate lower to whatever level it deemed proper. Thus, the taxing authority would have been left primarily to local control as it related to property taxes.

Applying this line of reasoning to the other two proposals, HJR 9 and HJR 10, I would hold these proposals were outside the authority of the General Assembly to consider at the 1980 session or any session prior to the next regular session in January 1981. These two proposals were not pending before the General Assembly when it discontinued to meet in the regular session. Neither were they listed as items to be considered at some later date.

Intervenor, taxpayer Harvey, correctly contends that SJR 1 was a matter of business pending at the time of the recess. He correctly insists it was within the scope of the unfinished business and therefore a proper matter to consider after the unusually long recess. Although it stretches the rule of reasonableness almost to the breaking point, I would agree with Harvey, and the trial court, that SJR 1 was a proper and legal subject for legislative consideration and would allow it to be considered at the next general election.

To allow HJR 9 and HJR 10 to be considered would be in violation of the idea that the General Assembly must adjourn sine die after completion of all pending business. To allow new matters to be considered when the recess was for the purpose of gathering additional information and material to complete pending matters would allow a continuous session for the entire biennium.

Therefore, I would affirm the trial court as to SJR 1 but reverse as to HJR 9 and HJR 10.

John A. Fogleman, Chief Justice, dissenting. I believe in the system of checks and balances. It works well only when the final arbiter of the boundaries between the three departments of government checks itself. The majority, in my view, is not doing that; instead, as I see it, the judicial branch has permitted itself to encroach upon the domain of the legislative branch, even to the extreme oPdeciding a question of fact, which was for independent determination by that branch. The majority fell into error by approaching the question upon the mistaken assumption that it was the duty of this court to determine what the constitution authorized the General Assembly to do. The duty of this court is to determine whether the constitution, expressly or by clear implication, prohibited it from doing what it did. I submit that it did not, so I join in the dissenting opinion of Mr. Justice Stroud.

John F. Stroud, Justice, dissenting. The majority opinion erroneously states “The question to us is one of the constitutional authority granted to the legislative branch of Arkansas government.” The question is not one of a grant of power, but rather, whether there is a limitation of power. This fundamental rule was clearly expressed in Bush v. Martineau, 214 Ark. 174, 295 S.W. 9 (1927) when the court said:

. . . [T]he Constitution of this State is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act {Straub v. Gordon, 27 Ark. 629), and that the Legislative may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas.

This basic constitutional premise has been followed by this court throughout our statehood. State v. Ashley, 1 Ark. 513 (1839); Straub v. Gordon, 27 Ark. 625 (1872); Vance v. Austell, 45 Ark. 400 (1885); Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S.W. 590 (1894); S. Louis, I.M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938 (1911); Butler v. Board, etc., 99 Ark. 100, 137 S.W. 251 (1911); Connor v. Blackwood, 176 Ark. 139, 2 S.W. 2d 44 (1928); Adams v. Spillyards, 187 Ark. 641, 61 S.W. 2d 686 (1933); Newton v. Edwards, 203 Ark. 18, 155 S.W. 2d 591 (1941);Hickenbottom v. McCain, 207 Ark. 485, 181 S.W. 2d 226 (1944); Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961); Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964); Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85 (1968); Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857 (1974); Hand v. H&R Block, Inc., 258 Ark. 774, 528 S.W. 2d 916 (1975).

Five months ago, this court again reiterated the proposition in Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979):

It must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; St. L.I.M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677.

To determine if the three proposed constitutional amendments were validly adopted by the Arkansas General Assembly at the extended session of the legislature in January of 1980 requires a review of the relevant provisions of the Arkansas Constitution and cases construing them.

Article 5 of the Constitution establishes the Legislative Department as a separate and independent branch of government. In § 5 of that article, the date of the meeting of the General Assembly every two years is defined, but the article continues “until said time be altered by law.” The legislature has exercised that right and changed the date by the adoption of Ark. Stat. Ann. § 4-101 (Repl. 1976). It also exercised its inherent power with the adoption of Ark. Stat. Ann. § 13-339 (Repl. 1979) which changed the biennial period from two consecutive calendar years to a fiscal period beginning on July 1st and ending June 30th two years thereafter. We determined in Wells v. Purcell, supra, that as the legislature is a separate and coordinate branch of government, we have no authority to supervise or control its actions by writ of mandamus or otherwise interfere with the legislative process, but we do have the authority and power to determine the validity of its legislative acts.

There is no contention in this case that the session which began on January 7, 1980, was a special session called by the Governor. Therefore, the reconvened extended session was either a regular session or it was void, as held by the majority.

Article 19, § 22 of the Constitution, in setting out the procedure the General Assembly must follow to propose constitutional amendments at a general election, provides:

Either branch of the General Assembly at a regular session thereof my propose amendments to this Constitution . . (Emphasis added.)

The regular biennial session of the legislature may be extended beyond 60 days pursuant to Art. 5, § 17 which provides that “The regular biennial sessions shall not exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said General Assembly . . . “There is no limitation placed on the duration of such an extension in this or any other article of the constitution. The framers of the constitution did, however, impose a limitation on the duration of the extention of a special session in Art. 6, § 19:

The Governor may, by proclamation, on extraordinary occasions convene the General Assembly at the seat of government, or at a different place, if that shall have become since their last adjournment dangerous from an enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days. (Emphasis added.)

An inflexible limitation on the extension of a regular session could just as easily have been included in the document. The failure of the framers of the constitution to do so is perhaps the best evidence that they did not want a maximum stated. Some of the drafters may have had sufficient vision to anticipate that the passage of time would result in a growth and complexity of life that would require more and longer legislative sessions to handle the affairs of government. Obviously, the electorate intended to discourage, but not prohibit, long sessions by the adoption in 1913 of Amendment No. 5 to the Constitution which eliminated all per diem of legislators after 15 days of an extraordinary session and after the first 60 days of any regular session, although this restriction has since been removed. Also of significance is the fact that the constitution places no restriction on the legislature in determining when they will adjourn, with one exception not applicable here. See Art. 6, § 20.

It is not our prerogative to judge the wisdom of legislative actions nor to determine whether that body has abused the power reserved to it by the people. This court made its position very clear in that regard in Wells v. Furcell, supra, when it said:

The legislature is responsible to the people alone, not to the courts, for its disregard of, or failure to perform, a duty clearly enjoined upon it by the constitution, and the remedy is with the people, by electing other servants, and not through the courts. Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 ALR 960 (1926); Fouracre v. White, 7 Boyce (Del.) 25, 102 A. 186 (1917); Person v. Doughton, 186 N.C. 723, 120 S.E. 481 (1923). See also, In re Senate Resolution 4, 54 Colo. 262, 130 P. 333 (1913).

The majority has correctly indicated that it is for the General Assembly to decide whether it has finished its business and whether an extension of the regular session is required. But incredibly they have held that the decision of the legislature in that regard is a question of fact subject to review by this court. No authority in the constitution or in any prior decision of this court is offered in justification of that position. This encroachment into the legislative process not only substantially abuses the doctrine of separation of powers, but also casts a pall over all legislation adopted at extended sessions of the legislature.

For the reasons expressed in this opinion, I would affirm the judgment of the Chancellor in finding that the three proposed constitutional amendments were validly acted upon at a regular session of the legislature.

Fogle man, C.J., and FIolt, J., join in this dissent.


author: Darrell Hickman, Justice.

text:
    Aca MURPHY, Jr. v. STATE of Arkansas
    CR 80-46
    599 S.W. 2d 138
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      Ronald L. Griggs, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Aca Murphy, Jr. was placed on five years probation in 1977 in connection with a conviction of theft of property.

In May, 1979, he was found guilty of burglary. The circuit court found that he had violated his parole and fined him $1,000, but continued him on probation.

About two months later, on the 16th of July, 1979, • Murphy was convicted in the Magnolia Municipal Court of loitering in violation of Ark. Stat. Ann. § 41-2914(g) (Repl. 1977). Two weeks after Murphy was convicted, the prosecuting attorney for Columbia County filed a petition in Columbia County Circuit Court to revoke the probated sentences alleging the two violations of parole as cause for the revocation.

The circuit court found Murphy was convicted by the municipal court, as alleged, and revoked the probated sentences; he sentenced Murphy to seven years imprisonment on the theft conviction and seven years on the burglary conviction, the sentences to run concurrently.

Murphy alleges three errors on appeal, all related to whether he was guilty of loitering.

It is not disputed that Murphy was convicted in municipal court as alleged. Neither is it disputed that he filed no appeal from that conviction. The petition to revoke his probationary status was filed before his time for appeal had lapsed, so he was on notice the conviction would be used as a ground to seek his imprisonment.

Even so, the trial court permitted Murphy to relitigate the question of his guilt at the revocation hearing.

We review such decisions differently than we do a conviction. A conviction requires a finding of guilt beyond a reasonable doubt. A revocation order will be sustained unless we find it is clearly against the preponderance of the evidence. Ellerson v. State, 261 Ark. 525, 549 S.W. 2d 495 (1977); Cogburn v. State, 264 Ark. 173, 569 S.W. 2d 658 (1978).

Murphy’s argument on appeal is that his identification was unfair, unduly suggestive; he should have been afforded an attorney at the time he was identified and the court’s finding was not supported by a preponderance of the evidence.

The trial court would not have been required by law to permit Murphy to relitigate the question of his guilt. The conviction in municipal court, as well as the prior conviction for burglary, would have been good cause for the judge to have revoked his status of probation. Ark. Stat. Ann. §41-1208 (Repl.' 1977). However, the trial judge did permit the question of Murphy’s guilt to be relitigated, and since all the issues raised on appeal relate to Murphy’s guilt, we will discuss them.

Muprhy was seen outside the bedroom window of a woman’s house trailer late at night. She realized she was being watched and saw Murphy head-on outside her window. She closed the curtains, turned off the lights and called the police. Several police cars converged on the area and Murphy was taken into custody shortly thereafter. About twenty-five minutes later the complaining witness went to the police station and as the vehicle she was in drove by, she identified Murphy as he was getting out of the police vehicle. It is this identification that Murphy alleges was illegal. There is no evidence at all that the police used bad faith in the identification. In Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145 (1978), we listed four criteria for determining if an identification was too suggestive and, therefore, illegal. First, is the matter of the time between the crime and the confrontation. In this case it was very short. Second, is a consideration of the attentiveness of the witness and the opportunity to view the accused at the time of the crime. The witness said she saw Murphy head-on and had an opportunity to identify him. Third, the accuracy of the victim’s description must be considered. She identified the clothing worn by Murphy and it coincided with the clothing that Murphy had on a short time later when the police apprehended him. She gave an otherwise general description of his features. Finally, there is the level of certainty of the victim. The witness said she was certain.

We cannot say, on the basis of the record, that the trial judge was clearly wrong in finding no error. A person is not entitled to have a lawyer present at such an identification. Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976); Lollard v. State, 258 Ark. 512, 527 S.W. 2d 627 (1975);King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972). See also Lindsey v. State, supra.

The trial judge found that not only had Murphy been convicted, but that he was satisfied that, in fact, Murphy was guilty. We cannot say that finding is against the preponderance of the evidence. As we have pointed out before in cases involving revocation of a sentence, Murphy was imprisoned for his original misconduct, not for what might appear to be a simple act of loitering. Ark. Stat. Ann. § 41-1208(6) (Repl. 1977). The trial judge noted that he had given Murphy a second chance when he pled guilty to burglary and he could not give him a third chance.

Affirmed.


author: John I. Purtle, Justice.

text:
    William Charles BREWER v. STATE of Arkansas
    CR 80-15
    599 S.W. 2d 141
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      John W. Achor, Public Defender, by: Sandra Trawick Beavers, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

A Pulaski County jury convicted the appellant of kidnapping, robbery and rape on October 15, 1979- His punishment was assessed at life imprisonment plus a $5,000 fine on the kidnapping conviction, life imprisonment plus a $15,000 fine on the rape conviction, and life imprisonment plus a $5,000 fine on the robbery conviction. The court ordered the sentences to run consecutively, and this appeal naturally follows.

For reversal appellant argues: (1) that the trial court erred in denying his motion for a mistrial; and, (2) that the trial court erred in allowing the introduction of certain articles of evidence and improper testimony. We do not agree with the appellant on either argument.

On July 6, 1979, the victim and her boyfriend were riding around in an automobile about 11:00 p.m. They stopped at a service station on Broadway in North Little Rock, and the boyfriend got out of the passenger side of the car and went into the restroom. Immediately after he went inside, the appellant opened the door and got into the automobile on the passenger side. He pointed a gun at the victim and told her to drive away. He caused her to drive to a place in the Dixie Addition of North Little Rock and robbed her of $14. He was apparently dissatisfied with the amount of money and proceeded to talk abusively to the victim and ordered her to drive to Little Rock.

Subsequently, the appellant decided to drive the automobile. While he was driving, he forced the victim to undress as he drove around the south part of Little Rock. He held the gun in his possession at all times, and the victim tesified she was very scared. She finally obeyed his order, removed her clothes, and got into the back seat of the automobile.

When he came to a secluded spot, he stopped the automobile and got into the back seat where he attempted to rape the victim. At first he could not accomplish the act of sexual intercouse and forced the victim to perform an act of oral sex on him. After the oral sex, he then completed the act of sexual intercourse. During the rape the victim was injured and bled considerably.

The appellant then allowed the victim to dress and return to the front seat. According to the victim, the appellant stated he might as well kill her at that time because he was going to be in a lot of trouble for what he had done.

They returned to North Little Rock and were driving down Broadway when the vehicle was stopped by a North Little Rock policeman. The appellant was still driving the car at the time of the apprehension. When the police stopped the vehicle, the appellant hid the gun under the front seat where it was later recovered.

The victim was taken to the medical center and was examined by a doctor. The doctor testified that he examined the victim at approximately 4:00 a.m. on July 7, 1979- The pelvic examinations revealed lacerations around the vagina at the hymenal ring, and these injuries were bleeding at the time of the examination. The doctor also performed a wet prep and determined the presence of motile sperm, and a test for prostatic acid phosphatase revealed the presence of male secretions. The doctor also collected specimens from her clothing and pubic hair.

Officers Dixon and Grace apprehended the appellant about 2:20 a.m. on July 7, 1979- After taking appellant to the police station, they took his clothing that was later introduced into evidence. Both officers testified that they observed blood on the back seat of the vehicle, on the clothing of the victim, and on the appellant’s clothing.

Officer Baker of the North Little Rock Police Department questioned the appellant concerning the incident. Appellant denied any knowledge of the alleged crimes and stated that he had first seen the victim at the Roadrunner Service Station on East Broadway at Boyer Street for a few minutes before he was stopped by the police. He testified the victim asked him directions; and, when she could not understand his directions, he offered to drive her to the desired destination. His statement was that he had been in the vehicle only three or four blocks from the spot where he was stopped by the police officers.

Appellant’s first point for reversal is that the trial court erred in denying his motion for a mistrial after the state elicited testimony from the victim that she had been a virgin prior to the rape. The question asked by the prosecuting attorney was, “Cynthia, had you ever had sexual intercouse?” The witness replied in the negative. An objection was made by defense, and a motion for a mistrial was made outside the presence of the jury. The court agreed with the appellant that the remark was improper and instructed the jury to disregard the question regarding prior sexual activity of the witness.

Appellant correctly states the rule of law that a mistrial is an extreme and drastic remedy which should be resorted to only when there has been a error so prejudicial that justice could not be served by continuing the trial. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978). The appellee is correct in stating when an objection is made by the opposing counsel, and the objection is sustained and followed by the rebuke from the bench in the form of an admonition from the presiding judge to the jury, the prejudicial statement is thereby cured .Johnson v. State, 254 Ark. 293, 495 S.W. 2d 115 (1973). We have frequently held that a mistrial should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. The sound discretion of the trial court should not be disturbed unless abuse of that discretion is shown. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979); and Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56 (1978).

The question here then is whether the question and answer were so prejudicial as to require a mistrial or whether this incident was of such a nature that the prejudice was cured by sustaining the objection and admonishing the jury.

It makes no difference whatsoever whether the victim of rape was a virgin or a prostitute. The offense of rape is committed if the person engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Therefore, prior sexual conduct has no relevancy to the issue in question. We do not think the prejudice was so great as to call for a mistrial, and we think the court acted properly in continuing the trial after admonishing the jury to disregard the improper question and answer.

We do not believe that Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) has any application in this case. This statute relates to specific instances of the victim’s prior sexual conduct. Certainly, this question did not relate to specific instances of the victim’s prior sexual conduct but related to the lack of prior specific instances of sexual conduct. The primary purposes of this statute were to protect the victim and encourage rape victims to participate in the prosecution of their attackers. Appellant further argues the question and answer violated Rule 403, Uniform Rules of Evidence. This rule provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury. In this particular instance, we feel the action of the court reduced the statement to the category of harmless error regardless of the relevancy. The over-all evidence is so overwhelming that this statement is harmless beyond a reasonable doubt. Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979).

Appellant’s second argument is that the trial court erred in allowing articles of the appellant’s clothing to be introduced into evidence together with testimony that there were human bloodstains on the clothing.

The testimony was that the appellant’s underwear had stains inside the front fly area which consisted of human blood and spermatoza. There was no attempt made to determine when or how the blood got there or from whom it had come. Appellant argued, by way of motion in limine, that this evidence should be excluded under Rules 401 and 402, Uniform Rules of Evidence. The court overruled the objection and allowed the introduction of the evidence. Appellant contends the clothing and stains were not in any way related to any consequential fact or material proposition at issue in the case. We disagree with this argument.

This evidence tends to corroborate the testimony of the victim, the police officers, and the medical examiner. It also tends to contradict the statement of the appellant that he had been in the car for only a period of time as to allow him to drive three or four blocks.

We might note that Rule 402, Uniform Rules of Evidence, states that all relevant evidence is admissible except such evidence as may be excluded by statutes or rules.

In the case of Bly v. State, 267 Ark. 613, 593 S.W. 2d 450 (1980), we sustained the introduction of bloodstained seat covering from an automobile as being relevant to the issue of murder. InBly the evidence supported testimony by witnesses other than the accused. We apply the same reasoning to the present case. We agree that there was no evidence the blood was the victim’s, but it is nevertheless relevant and a proper matter for consideration by the jury in weighing the facts presented to them.

Actually, the argument of appellant on this point really goes to the weight to be given the evidence rather than to its relevancy. We are not unmindful Rule 403 of the Uniform Rules of Evidence permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of prejudice. We think in this case the .probative value substantially outweighed the danger of unfair prejudice, confusion of issues, or misleading the jury.

We have examined the record for all possible legal errors, as is our practice in such cases; and, finding none, we affirm the judgment.

Affirmed.


author: John F. Stroud, Justice.

text:
    PARAGOULD PAINT & GLASS, INC. v. Gary RODGERS and Sherrill RODGERS, His Wife, and FIRST NATIONAL BANK OF PARAGOULD, Arkansas
    80-6
    599 S.W. 2d 709
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      Branch & Thompson, by: Robert F. Thompson, for appellant.

      Cathey, Goodwin, Hamilton & Moore, by: Donis B. Hamilton, for appellees.
   John F. Stroud, Justice.

This is a suit challenging the constitutionality of the Arkansas mechanics’ and materialmen’s lien statutes. We disagree with the decision of the Chancellor declaring the lien statutes void.

During the summer of 1978 Gary and Sherrill Rodgers (hereinafter appellees) and appellant entered into an agreement whereby appellant would provide the labor and materials necessary to construct a home for appellees on real property owned by them. Appellees secured financing for the project from appellee First National Bank of Paragould, Arkansas (hereinafter First National), and executed a deed of trust in favor of First National covering the property. The agreement was not in writing, although appellees claimed a cost estimate form contained the price agreed upon, and this suit arose out of a dispute over the contract price. Appellant asserted the house was completed in April of 1979 and that appellees refused to pay $12,694.56 of the $74,980.30 total construction cost. Appellees, however, alleged that the contract price had been set originally at $60,000, plus the cost of bookcases and a deck, and contended that their payment of $62,285.47 to appellant satisfied their obligation.

Appellant filed a mechanics’ and materialmen’s lien on the property in question after appellees refused to pay the amount claimed as past due. When appellees continued to refuse to pay, appellant filed a suit to foreclose the lien on appellees’ property. After filing separate answers to appellant’s complaint, appellees and First National moved for partial summary judgment, alleging that the mechanics’ and materialmen’s lien filed by appellant was violative of the due process clauses of the United States Constitution and the Constitution of the State of Arkansas. The Chancellor found that the Arkansas statutes authorizing the filing and enforcement of mechanics’ and materialmen’s liens, Ark. Stat. Ann. § 51-601 et seq (Repl. 1971), allowed the taking of a substantial property interest and that the actions of appellant constituted “state action” to an extent sufficient to render the statutes unconstitutional as violative of due process of law. Appellant brings this appeal from the judgment of the Chancellor, urging three points for reversal:

I. THE TRIAL COURT ERRED IN DETERMINING THAT THE ACTIONS OF THE APPELLANT IN PERFECTING ITS MECHANICS’ AND MATERIALMEN’S LIEN WERE ACTIONS ATTRIBUTABLE TO THE STATE OF ARKANSAS.
II. THE TRIAL COURT ERRED IN DETERMINING THAT THE APPLICATION OF ARK. STAT. ANN. § 51-601 ET SEQ RESULTS IN THE DEPRIVATION OF A SIGNIFICANT PROPERTY INTEREST.
III. THE TRIAL COURT ERRED IN FAILING TO AFFORD ARK. STAT. ANN. § 51-601 ET SEQ THE PRESUMPTION OF VALIDITY.

Appellees and First National, of course, urge support of the findings of the Chancellor and affirmance of his judgment that the statutes are unconstitutional.

We have today decided these same issues in the case of South Central District of the Pentecostal Church of God of America, Inc. v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W. 2d 702 (1980). The very thorough opinion in that case controls the disposition of the questions presented here. Accordingly, we find Ark. Stat. Ann. § 51-601, et seq (Repl. 1971) to be constitutional, and we reverse the order of the Chancellor granting appellees’ and First National’s motions for partial summary judgment. This case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

Hickman and Mays, JJ., concur.


author:
Jimason J. Daggett, Special Justice.
      Darrell Hickman, Justice,

text:
    L. D. DELANEY, Individually and as Administrator of the Estate of Betty DELANEY v. Mike MIZE
    79-310
    599 S.W. 2d 710
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980
    Rehearing denied July 7, 1980

      Guy Jones, Jr., for appellant.

      Matthews & Sanders, for appellee.
   Jimason J. Daggett, Special Justice.

This case was brought in the Circuit Court of Faulkner County, Arkansas, by L. D. Delaney, individually and as Administrator of the Estate of Betty Delaney, against Mike Mize, who was the driver of an automobile wherein Betty Delaney was killed while riding as passenger. The plaintiff administrator, now Appellant, brought suit against the driver, alleging willful and wanton conduct, as well as negligence. The defendant pled the Arkansas guest statute (Ark. Stat. Ann. § 75-913). Upon the trial, by agreement of the-parties, all “liability evidence” was submitted to the jury. At the conclusion of the plaintiff s testimony the defendant moved for a directed verdict, “on the basis that the evidence adduced clearly does not show any willful and wanton misconduct on the part of the defendant Mike Mize.” The trial court granted the motion for a directed verdict, holding that there was no evidence in the record that would justify a jury finding the defendant guilty of willful or wanton misconduct. The trial court also ruled that the guest statute was constitutional. Thus is presented to this Court two questions:

First, the constitutionality of the Arkansas guest statute; and

Second, was the proof presented as to willful and wanton misconduct on the part of defendant-appellee sufficient to submit that issue to the jury?

Factually, on January 31, 1972, Betty Delaney, Mike Mize, Dale Sowell and Donnie Harlan were at the Vilonia High School at night as participants in a chemistry experiment. Following the conclusion of the experiment, Betty Delaney had to “catch a ride” home with one of the other students. Dale Sowell, Donnie Harlan and Mike Mize all offered to drive her home, but she chose to ride with Mike. The three vehicles left the school together, with Betty Delaney a passenger in Mike Mize’s vehicle. The Harlan vehicle was the front one, followed by Dale Sowell and then Mike Mize. There is no evidence that anybody was in a hurry or that there was any urgent reason to reach their respective destinations.

The only witness to the accident was Dale Sowell. According to his testimony, he was driving his vehicle about 50 to 55 miles an hour, five to six car lengths behind the Harlan vehicle,, when the Harlan vehicle began to slow down and its blinker lights began to work. Then, young Sowell testified, “I started to slow down,” and that at that time his speed was “about 50, maybe 55.” He stated he had not paid any attention to the vehicle being driven by Mike Mize behind him. When Mr. Sowell noticed the brake lights on the Harlan car and began slowing his own vehicle, he fixes the location of the Mize vehicle as follows:

“Q. At the time you touched your brakes and started braking your vehicle and slowing it down, where was the defendant’s vehicle?
“A. Beside me.
“Q. Right beside you? How fast do you think he was going?
“A. About 60.
“Q. How much faster than you do you think he was going?
“A. That would have been about 5, maybe 10, miles an hour.”
Mr. Sowell testified that he noticed oncoming lights from the opposite direction.
“Q. When you noticed Mike Mize’s car coming right next to your vehicle, how far away was this other car coming from Beebe to Conway?”

He answered that the oncoming car was “close enough so that I got on my brake to try to let him in. I thought he needed to be getting back in our lane.”

Officer Purcell was permitted, without objection, to give his version of the accident. He testified:

“Mike Mize attempted to pass the Sowell vehicle, and at this same time the Harlan vehicle had started to make a left turn; he was giving his signal. Mike Mize at this time applied his brakes and skidded to his right across the right-hand land 99 feet. At this point he reached the shoulder and the car began to yawl sideways. He skidded 82 feet down the shoulder gradually going back to his left and then 61 feet angling across the highway. At this point Miss Gail Spencer was an oncoming vehicle, and as they got onto the shoulder Miss Spencer also veered onto the shoulder in an attempt to avoid the vehicle sliding in front of her, and she struck the Mize vehicle at the right hand side of the door.”

The officer testified that his investigation revealed there were two slick tires on the right side of the Mize vehicle and that at the site of the accident the speed limit was 60 miles per hour. The weather condition was cloudy and cold and the road surface was dry.

It was also established by young Sowell that he knew where Mr. Harlan lived and that Mike also knew where Harlan lived. The Harlan vehicle was attempting to turn into the road leading to the Harlan house at the time of the accident.

These are the essential facts upon which the trial court concluded that there was not sufficient evidence of willful or wanton misconduct to submit to the jury.

We think he properly so concluded.

The question here presented is not whether Mike Mize was negligent in causing this accident. Counsel for the defendant readily admitted that there was sufficient evidence of negligence to justify the submission of the case to the jury in the absence of the guest statute. The question presented is whether or not Mike Mize was guilty of willful and wanton misconduct. Actions necessary to constitute such misconduct have been stated by this Court many times. The case of Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295 (1967), clearly states the requirement:

“In order to constitute the willful misconduct required, there must be a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another, as distinguished from gross negligence which does not involve such reckless disregard of consequences. There must be a willfulness, a wantonness and indifferent abandonment in respect of consequences, applicable alike to self and guest. Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723. The burden of proof to show the required conduct was upon appellee. Pool v. James, 231 Ark. 810, 332 S.W. 2d 833; Splawn v. Wright, supra. Before a driver will be found guilty of this conduct, the evidence should be unusually strong and convincing. Splawn v. Wright, supra.”
# # #
“There can be no liability on the part of young Carden unless there is evidence to show his vehicle was willfully and wantonly operated in disregard to the rights of others — particularly Martha Jane Evans. While the evidence undoubtedly shows negligence, perhaps even gross negligence, on his part, it is not sufficient to show the required willfulness and wantonness.”

In Pool v. James, 231 Ark. 810, 332 S.W. 2d 833 (1960), willful and wanton conduct is described as follows:

“. . . willful misconduct, or to operate an automobile in willful and wanton disregard of the rights of others, means something more than gross negligence, and . . . willful negligence is greater in degree than gross negligence; to he willfully negligent one must he conscious of his conduct — that is, he must, in the light of surrounding circumstances, comprehend that his act will naturally or probably result in injury. Differently expressed, willful negligence involves the element of conduct equivalent to a so-called constructive intent. Steward, Admr. v. Thomas, 222 Ark. 849, 262 S.W. 2d 901.”

We believe the evidence here falls “short of the mark.” In this case there is no evidence of adverse weather conditions, as frequently appears in these cases. See Splawn v. Wright, 198 Ark. 197, 128 S.W. 2d 248 (1939). Nor is there any evidence of excess speed as in such cases as Edwards v. Jeffers, 204 Ark. 400, 162 S.W. 2d 472; Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295. In the case at bar the weather was “clear and dry” and the only eye witness to the speed of the vehicle at the time fixed it at 55 to 60 miles per hour. The speed limit at the scene of the accident was established at 60 miles an hour.

The principal contention that Mike was guilty of misconduct consisted in the allegations that (1) he was driving a vehicle with slick tires, and (2) he attempted to pass the Sowell vehicle when he was aware that the Harlan vehicle was preparing to make a left hand turn. Trooper Purcell testified that the Mize car had two slick tires on the right side. It is established, however, that the vehicle belonged to Mike Mize’s father. There is no direct testimony to the effect that Mike Mize was aware of the condition of the tires. Mike Mize was not called to testify. We are not cited to any authority holding that the operation of a vehicle with slick tires is, of itself, misconduct. As to the attempted passage, Sowell testified that when he first saw the turning lights of the Harlan vehicle, the Mize vehicle was “along side” of him. There were no obstructions to the vision of either Mize or Sowell. Therefore, it is reasonable to assume that both Sowell and Mize simultaneously saw the lights when they first came on. At the time the attempted passage was underway. The facts, therefore, do not establish that Mize was attempting the passage with fore-knowledge that Harlan was making a left turn. At best, it seems to us that the evidence establishes that Mize, being unaware of any existing complications, simply attempted to pass the vehicle in front of him, which decision in the light of subsequent developments turned out to be an unwise one. This, in our opinion, does not constitute willful and wanton misconduct. There does not appear to be any “conscious failure to perform a manifest duty” in this case.

II.

The Constitutionality of the Arkansas Guest Statute.

This Court has now had presented to it on five separate occasions the constitutionality of the Arkansas guest statute. On each occasion the Court has upheld same. See Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 965 (1937); Emberson v. Buffington, 228 Ark. 120, 306 S.W. 2d 120 (1957); White v. Hughes, 257 Ark. 627, 519 S.W. 2d 70 (1975); and Rone v. Miller, 257 Ark. 791, 520 SW. 2d 268 (1975).

As recently as February 11, 1980, we have again affirmed the constitutionality of the guest statute. See Charles D. Davis, et al v. Cox, 593 S.W. 2d 180. In this case we said:

“It is not our function to rule on the wisdom or practicality of an act of the Legislature; 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.”
We again so state.

Appellant also contends that the statute is violative of the Fourteenth Amendment to the Constitution of the United States. This contention was fully considered and rejected by the United States Supreme Court in its original opinion in Silver v. Silver, 280 U.S. 117. The argument was last presented to us. again in the case of Davis v. Cox, supra, and again rejected.

Affirmed.

Fogleman, C.J., and Hickman and Mays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. A disagreement with the majority’s characterization of the evidence. The majority states:

. . . There is no evidence that anybody was in a hurry or that there was any urgent reason to reach their respective destinations. . . .

I believe that the evidence in this case would have warranted a jury to find that the three teenagers, who were driving separate vehicles, were racing, or at least that Mike Mize, the appellee who was the driver of one of the vehicles, was driving at an excessive rate of speed in reckless and wanton disregard for his own life and the life of others.

The youngsters in question were attending a night chemistry class at the Vilonia High School. After the class was over, a group of them left in three vehicles. Donnie Harlan was driving the first vehicle; Dale Sowell, a witness in this case, was driving the second vehicle; Mike Mize was behind them and his passenger was the deceased, Betty Delaney. Sowell testified, “I probably left fairly fast.” The evidence was they were going home. All the parties knew that the driver of the first vehicle, Donnie Harlan, lived down the highway several miles on the left. The vehicles were in a line, traveling down a straight stretch of highway which passed Harlan’s house. As they were approaching Harlan’s house, Mize pulled out to pass. Another vehicle was coming towards the three vehicles; Mize could not get back in his lane of traffic. His vehicle went into a skid for 99 feet in a straight line, went into a skid sideways for 82 feet and then skidded another 61 feet before it hit the oncoming vehicle. It demolished Mize’s vehicle and killed Betty Delaney.

Sowell testified that Mize’s vehicle was beside him, trying to pass him when Harlan’s vehicle began tp slow and was making a left turn signal at the same time an oncoming vehicle was approaching. Mize knew, or should have known, Harlan would turn; Sowell saw the oncoming vehicle;'' so did Mize or he should have.

I believe this was sufficient evidence for the jury to con-elude that Mize was guilty of willful and wanton negligence. For that reason I would reverse the judgment of the trial court and let the jury decide this matter.

Fogleman, C.J., and Mays, Jr., join in this dissent.


author: PER CURIAM

text:
    Robert MOORE, Chairman, Arkansas Transportation Commission, et al v. ARKANSAS TRANSPORT COMPANY
    80-111
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      Walter A. Murray, for appellants.

      Jack East III, for appellee.
   PER CURIAM

On April 29, 1980, appellant tendered to the clerk of this court a transcript of the record of the proceedings in the case of Arkansas Transport Company versus Robert Moore, Chairman, Arkansas Transportation Commission, et al, No. 79-5197, in the Circuit Court of Pulaski County, in order to perfect their appeal from an order of that court entered on January 4, 1980, and the supplemental order entered January 11, 1980. The tender was refused by the clerk because of the provisions of Ark. Stat. Ann. § 73-134 (Repl. 1979).

Notice of appeal was filed in the circuit court on February 1, 1980. Under the provisions of the section of the statute above cited, a record on appeal to this court from the circuit court was to be lodged in the office of the Clerk of the Supreme Court within 60 days of the rendition of the order in the circuit court. This record obviously was not tendered within that time.

Appellant relies upon Rule 5 of the Rules of Appellate Procedure [Ark. Stat. Ann., Vol. 3A (Repl. 1979)]. Under that rule the record on appeal must be filed with the Clerk of this court within 90 days from the filing of the first notice of appeal. This record was timely filed under that rule. Rule 5 was effective July 1, 1979. It was adopted pursuant to Act 38 of 1973 and the constitutional and inherent powers of this court to regulate procedures in the courts. Under Act 38 of 1973, the General Assembly provided that rules made by this court under the authority of that act may prescribe the times and manner of taking appeals. It also provided that all laws in effect on the effective date of that act relating to the time and manner of taking appeals in civil proceedings should remain in effect only until such time as the Supreme Court prescribed rules regarding the same or until revised or repealed by legislative action. Act 38 was passed on January 31, 1973. Ark. Stat. Ann. § 73-134 was in effect on the effective date of that act. Insofar as the provisions of § 73-134 relate to the time for lodging a transcript in the office of the clerk of this court are concerned, they are superseded by Rule 5; and the record was timely tendered under that rule.

The rule on the clerk is granted.


text:
    David L. LASLEY v. STATE of Arkansas James CLOIRD v. Lowber HENDRICKS, Judge
    CR 80-103 & CR 80-107
    599 S.W. 2d 144
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980
   PER CURIAM

Temporary writs of prohibition were granted in these cases pending a decision regarding the Juvenile Code of Arkansas of 1975.

Our decision of May 27, 1980, in Sargent v. Cole, held that a juvenile over 15 years of age, charged with a criminal act, could be tried in circuit court. Therefore, the temporary writs granted in these cases are dissolved and the appeals are dismissed.