text:
    WESTARK SPECIALTIES, INC. & GRANITE STATE INSURANCE CO. v. Michael E. LINDSEY
    75-275
    532 S.W. 2d 757
    Opinion delivered February 23, 1976

      Daily, West, Core & Coffman, for appellants.

      Garner, Garner & Cloar, for appellee.
   Frank Holt, Justice.

In this workmen’s compensation case, the Commission found appellee’s eye injury was compensable and the circuit court affirmed. The sole contention on appeal is that the court and the Commission erred in con-eluding the claimant sustained an injury which arose out of and in the course of his employment with the appellant Westark Specialties, Inc. It is argued that there is no causal connection between the accident-injury and appellee’s employment. Specifically, appellants aver “is such an injury so reasonably incidental to the employment that it meets the requirement of arising out of the employment?” Ark. Stat. Ann. § 81-1302 (d) (Repl. 1960). Appellants correctly assert that the burden is upon the appellee claimant to prove that his injury arose in the course of his employment and additionally, it grew out of or resulted from his employment. Appellee-claimant responds that he has met the burden of proof by showing the incident, which caused his eye injury, arose out of a work connected quarrel. We agree with the appellee.

The law is well settled that in testing the sufficiency of the evidence on appeal we view it in the light most favorable to the Commission’s finding and affirm where any substantial evidence exists to support its action. Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968); and Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W. 2d 673 (1973). Appellant agrees that there is little dispute about the facts and the real issue is one of law.

About the end of the workday, two of appellee’s co-employees, Brown and Yutterman, were observed in an argument by their foreman. Brown was away from his work area and at Yutterman’s station angrily pointing his finger at Yutterman. The foreman fired Brown. The foreman had previously warned Brown about his “smart mouth and popping off.” This dispute arose because Brown was “razzing and kidding” a new co-employee. Yutterman told Brown “ . . . let Willie do his work because he needs the work like you do.” After being discharged, Brown waited outside the building for Yutterman “to get off work” and then asked him “why he had gotten me fired.” An argument ensued between them. The appellee and his uncle had walked to the uncle’s car where it was parked on a lot, adjacent to the building, regularly used and made available to the employees. They got into the car and were endorsing their pay checks when appellee unexpectedly suffered a bullet wound to one of his eyes from a gun fired by Brown. Appellee and his uncle testified that as they sat in the car endorsing their checks, they observed Brown and Yutterman standing by the corner of the building engaged in an argument. The uncle testified Brown had a gun pointed toward Yutterman’s head. Yutterman slapped at Brown and then the uncle heard the gun fire. The bullet hit his car and he heard appellee exclaim he was “hit- in the eye.” There was testimony that Brown was warned on a previous occasion by the foreman about having a gun on the premises.

In Townsend Paneling v. Butler, 247 Ark. 818, 448 S.W. 2d 347 (1969), we quoted with approval:

‘It is generally held that injuries resulting from an assault are compensable where the assault is causally related to the employment, but that such injuries are not compensable where the assault arises out of purely personal reasons.’

There we upheld the Commission’s finding that the claimant’s injury was causally related to his employment since he was an innocent victim of a work related assault by his co-employee. We think this holding is applicable to the case at bar.

We also think Larson, Vol. 1, § 11, is pertinent here. There it is said:

Assaults arise out of the employment either if the risk of assault is increased by the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in work. (Emphasis added.)

Further, § 11.12 reads “ . . . . causal connection with the employment may be shown by connecting with the employment the subject matter of the dispute leading to the assault.”

Appellant, however, cites Southland Corp. v. Hester, 253 Ark. 959, 490 S.W. 2d 132 (1973), as controlling in the case at bar. We cannot agree. Suffice it to say that there the accidental death from the discharge of a firearm which the decedent employee had in his possession on the premises was clearly not the result of any dispute or quarrel with a fellow employee as here. In the case at bar, had Yutterman suffered an injury from the hands of his co-employee Brown, then Yutterman would be entitled to compensation. Townsend Paneling v. Butler, supra. It logically and necessarily follows that the appellee here, who was also the innocent victim of a work related assault, is likewise entitled to compensation. Certainly, the evidence is amply substantial that appellee’s injury was the result of a work related quarrel arising out of and causally related to his employment.

Affirmed.


source: Caselaw Access Project

author:
Don M. Schnipper, Special Justice.
      J. Fred Jones, Justice, J. L. Hendren, Special Justice,

license: Public Domain

text:
    Marion THOMAS, MARYLAND CASUALTY COMPANY, a Corporation, and FIDELITY & DEPOSIT COMPANY of MARYLAND, a corporation v. James. R. WILLIFORD
    74-347
    534 S.W. 2d 2
    Opinion delivered February 23, 1976
    [Rehearing denied April 5, 1976.]

      Skillman, Curretl & Davis, for appellants.

      Reid, Burge & Prevallet, and Wright, Lindsey & Jennings, by: David M. Powell, for appellee.
   Don M. Schnipper, Special Justice.

This is a taxpayers action brought by the Appellee on behalf of Crittenden County, Arkansas, to require Appellant, Marion Thomas, to account for and pay over certain sums of money alleged to have come into his hands while he held the office of Sheriff and Collector for said county. Appellee alleged that Appellant Thomas had wrongly and fraudulently misappropriated and converted these funds to his own use during the terms of his office, namely January 1, 1965 thru June 29, 1970. Appellants Maryland Casualty Company and Fidelity & Deposit Company of Maryland were joined in this action as Sureties on Appellant Thomas’ statutory bonds.

This action was tried to the Chancellor by Assignment over a considerable period of time and the transcript of the proceedings consisted of approximately 2,500 pages. A detail outline of all allegations and specific transactions would be impractical and not necessary to this decision.

At the' conclusion of the trial before the Chancellor by Assignment the Court prepared and filed its “Findings of Fact and Conclusions of Law”, the net result of which was to require the Appellants to account for and pay over to Crittenden County approximately $35,000.00 plus interest and an additional $10,500.00 in attorneys’ fees awarded attorneys for Appellee. From this award Appellant Thomas and Appellant Surety Companies have taken this appeal.

A number of the points for reversal relied upon by all of the Appellants revolve around the receipt by Appellant Thomas of the sum of $8,800.00 for the years 1965 through 1969 by and from Southland Racing Corporation. The method of the making and receiving of these payments, according to the undisputed testimony, involved a very suspicious method including the submission of fictitious invoices, issuance of checks paying the invoices to a party other than Appellant Thomas, cashing of the checks by a uniform and law enforcement equipment supplier and the paying of the funds to Appellant Thomas in cash. The Trial Court found these funds to have been received by Appellant Thomas in a “surreptitious manner”, to have deprived the citizens of Crittenden County, Arkansas of the benefit thereof contrary to his office of public trust, and that the payments were in violation of the provisions of Article 19, Section 23 of the Arkansas Constitution and the Initiated Act No. 1 of Crittenden County, Arkansas. Having so found, the Trial Court then gave judgment against Appellants for this sum and awarded interest, penalties and attorneys’ fees on this sum.

Appellant Thomas had alleged error by the Trial Court in requiring an accounting for these funds (hereinafter referred to as the Southland funds) as such were not “public funds” for which Appellant Thomas was charged. Appellant Surety Companies further urged this Court that the required accounting of the Southland funds was error as said funds were “gifts” to Appellant Thomas, for which neither he nor his Sureties should be required to account.

Article 19, Section 23 of the Arkansas Constitution reads as follows:

“Section 23. MAXIMUM OF OFFICERS’ SALARIES OR FEES. - No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than FIVE THOUSAND DOLLARS net profits per annum in par funds and any and all sums in excess of this amount shall be paid into the State, county, city or town Treasury as shall hereafter be directed by appropriate legislation.”

Initiated Act No. 1 of Crittenden County authorized compensation of the Sheriff and Collector at $5,000.00 per annum, “and in addition thereto the actual and necessary expense of travel incident to the duties of this office, and shall receive no other fee, commissions, perquisites, or other compensation, either directly or indirectly, for services rendered as such Sheriff and Collector.” The evidence strongly indicates that these funds were not paid to Appellant Thomas for any services rendered or to be rendered by him or his office and were not in any way “breakage” money or other designated funds to which Crittenden County, Arkansas and its citizens would have been entitled to demand or receive. No person connected with Southland Racing Corporation testified and the exact purpose of such payments was never established. The only real evidence adduced at the trial to explain the payment and receipt of such funds and the interest the county might have to such was the testimony of Appellant Thomas that he “considered it to be additional remuneration to me in addition to my salary”.

Appellee forcefully argues that Appellant Thomas should be charged with these funds since, regardless of the purpose of such payment, they were received “by virtue of his office”. See White v. Williams, 187 Ark. 113, 59 S.W. 2d 23 (1933) and State v. Harmon, 190 Ark. 621, 80 S.W. 2d 619 (1935). Further, since such funds were received “by virtue of his office” they must be considered a “Perquisite” within the definition of Article 19, Section 23 of the Arkansas Constitution and Initiated Act No. 1 of Crittenden County. In so holding we find the Trial Court committed error.

All the cases cited by Appellee (White v. Williams, Supra., State v. Harmon, Supra., and Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970) ) involve monies which came into the hands of respective county officials from sources with which the respective counties were charged or were funds to which the respective counties were entitled. We do not find the gratuitous payments in the instant case to be analogous to fees for the feeding of prisoners, fees received for taking care of federal prisoners and cash bonds. We reaffirm the holding of each of the hereinabove cited cases. It is our finding that the Southland funds in the instant case, however, were not funds to which the county was entitled, had any interest in or could demand or file suit for collection. They were not paid for any public purpose nor to the detriment of any public obligation. They were not “Public funds” for which we believe Appellant Thomas could be charged and the receipt by him of such funds was not in violation of Article 19, Section 23 of the Arkansas Constitution or Initiated Act No. 1 of Crittenden County, Arkansas.

This Court has taken special notice of the manner in which the Southland funds were paid to and received by Appellant Thomas. While holding these funds not to be “public funds”, we in no way intend to approve of the method, legality or morality of such manner as might be the subject of a criminal prosecution. This, however, is a civil action for an accounting.

Contrary to the argument of Appellant Surety Companies, we do not hold that in a taxpayers suit for accounting it must be shown that some amount of wrongdoing in connection with the receipt of funds such as this existed. We do find, however, that there must be some interest of the county and its citizens to the funds received before a public official may be held responsible in a civil accounting action. We do not feel the proof of Appellee in the instant case was sufficient.

In reversing the Trial Court on the issue of the Southland funds we also, of necessity, must reverse on that Court’s finding the Appellant Surety Companies liable for the payment of the Southland funds and in the awarding Appellee penalty and attorneys fees under Arkansas Statutes Ann., Section 66-3238. It should be noted that by this finding the amount for which the Appellant Surety Companies would be liable has been reduced below the demanded amounts as required for the awarding of such penalties and attorneys fees.

The next contention of Appellant on this appeal is that the Trial Court erred in applying the Statute of Limitations as to Appellant Thomas. Appellant Thomas argues that either Arkansas Statutes Ann., Section 37-203 or Section 37-204, both being two-year statutes, is applicable to the instant situation and not the four-year Statute of Limitation provided by Arkansas Statutes Ann., Section 37-207. Appellant further argued that there was no allegation or proof of any fraud or concealment on the part of Appellant Thomas that would toll any of the Statutes of Limitation. On this point this Court disagrees with Appellant as to all transactions except the payment and receipt of a $150.00 per month expense allowance. To the contrary the pleadings are replete with allegations of fraud, concealment and misappropriation on the part of Appellant Thomas and the proof by Appellee more than met this burden. Accordingly, we find that the allegation and proof of fraud and concealment in the instant case was sufficient to toll any Statute of Limitation applicable under the circumstances and affirm the Trial Court in so holding.

Appellant Thomas next contends the Chancellor by Assignment erred in requiring him to account for certain funds which were the result of some 15 specific transactions and for which Appellant contended he had accounted and was entitled to credit. These transactions range from checks on Appellant’s department accounts to individuals which were endorsed by the individuals and applied toward Appellant’s personal obligations, to checks payable to cash, to checks in payment of allegedly fictitious law enforcement equipment supplier invoices, to a $150.00 per month expense allowance paid by the county to Appellant. This court has reviewed each of these transactions thoroughly and cannot say the Trial Court’s findings on all points are against the preponderance of the evidence. Accordingly, we hereby affirm the chancellor’s findings on all of the specific transactions.

While affirming the Trial Court judgment on the above unspecified transactions, we feel one such item raised by Appellant and presented to this Court on several occasions in recent years deserves discussion. According to the testimony of Appellant and other county officials, Appellant Thomas was paid $150.00 per month during the years 1965 through June 29, 1970 as an “expense” check, this payment being over and above his statutory salary and payment by the county of all travel expenses. No expense voucher or other proof of such expense was ever submitted to the county to substantiate such payment. The Trial Court found “The $10,050.00 paid to Defendant over the five-year period constituted an illegal exaction of public funds”. In requiring an accounting and repayment of Appellant the Trial Court further held that the four-year Statute of Limitation of Arkansas Statutes Ann., Section 37-207 applied unless tolled by the showing of fraud or concealment on the part of the Appellant. Finding “the receipt by Defendant of the $150.00 per month allowance was open and notorious and was disclosed to the Quorum Court each year”, the Trial Court further held that the four-year Statute of Limitation began to run each year from the filing of Appellant’s account and therefore only required Appellant to account for such expense payments for the years 1968, 1969 and 1970 in the amount of $4,650.00.

This Court has been faced with this proposition and situation a number of times. On each of these occasions we have upheld the validity of monthly or annual expense allowances for public officials provided such payments are reimbursement for actual, reasonable and necsssary expenses incurred in performing duties directly connected with, and incidental to, their official duties and proof of such expenses by way of vouchers or itemized statements is produced. The payment of the maximum authorized monthly or annual amounts without such proof by each official has been held to be an illegal exaction of public monies and a violation of the constitutional provision relating to the particular offit lal. See Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964); Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741 (1972); Tedford et al v. Mears & Scott, 258 Ark. 450 (1975). We hereby reaffirm our holdings from our previous reviews.

In the instant case the evidence is clear Appellant Thomas was receiving the $150.00 per month expense funds without the required proof of such expenses. This constituted an “illegal exaction” and the Trial Court correctly required Appellant Thomas to account for and repay all sums received and not barred by the four-year Statute of Limitation. Furthermore, the record fails to disclose any evidence of fraud or concealment on the part of Appellant Thomas in accepting the monthly expense allowances. We therefore find no evidence on which the Statute of Limitation could be said to have been tolled. The finding of the Trial Court on this contention of Appellant is, therefore, affirmed.

The Trial Court further charged Appellant a 5% per month penalty on 29 of the 43 specific items or transactions presented at the trial, specifically excluding several items the Court found Appellant to have accounted for, the $150.00 per month expense allowances for years excluded by the four-year Statute of Limitations and the repayment of the Southland funds.

The Trial Court’s requirement for the payment of such penalty was under authority of Arkansas Statutes Ann., Section 84-1416 which provides as follows:

Every collector of the county revenue, having made settlement according to law, of the county revenue received and collected by him, shall pay the amount found due from him into the county treasury, and the treasurer shall give duplicate receipts therefore; one of which shall be filed by the collector in the office of the clerk of the county court.
Every collector or sheriff who shall fail to make payment of the amount due from him on settlement, in the time and manner prescribed in the preceeding section, shall forfeit and pay to the county, the sum of 5 per centum (5%) per month on the sum wrongfully withheld, to be computed from the time the payment ought to have been made, until actual payment, which may be recovered, by suit on his official bond.

Appellant contends that the only funds on which he could be charged such a penalty would be taxes, fines or any monies collected for any purpose by law and belonging to the county. Appellant cites this Court to Arkansas Statutes Ann., Section 84-1401 to support his argument. Under the facts in this case we find the charge of the 5% penalty by the Trial Court to have been proper and that the specific items for which Appellant was charged are within the scope of the statute.

The judgment of the Trial Court is reversed in accordance with the findings herein and the cause remanded for Judgment consistent with this opinion.

Fooleman, J. and Holt, J., not participating.

Jones, J., concurs.

Roy, J. and Special Associate Justice J. L. Hendren, dissent.

J. Fred Jones, Justice,

concurring. I concur in the results reached by the majority in this case. Article 19, § 23, reads as follows:

“No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation. ”

When Article 19 was adopted most, if not all, sheriffs and collectors were on a “fee basis.” They deducted their salaries from the fees they collected and paid the excess over to the county treasurers. In § 23 “perquisites” is in the same category as “salary” and “fees.”

Perhaps by dictionary definition, “perquisites” could include any and all amounts received over and above fixed income regardless of the nature and source of such amounts, but certainly it is my view that § 23 did not contemplate “perquisites” in the form of bribes, or illegal exactions.

I am not saying, or even insinuating, that the evidence of record in this civil action indicates the money here involved was obtained through bribes or illegal exactions; I am saying, however, that the manner in which it was paid by Southland and received by Thomas, negates the contention that it was “perquisites” Thomas should have taken, or that he or the county should be permitted to keep, or that his bondsman should be liable for in a civil action.

It is true appellant Thomas testified that he considered the amounts he received from Southland Racing Corporation as additional remuneration for services he performed in his official capacity, but it must be remembered that Thomas and also his bonding company were being sued for an accounting.

If the amounts paid Thomas by Southland were for extra deputies in directing traffic and policing the dog races, perhaps we would have a different situation than is presented on this appeal. But in that event, one would expect the payment to be made direct. There is no evidence as to whether the payments were made to enforce the law or to not enforce it.

To require an accounting and payment to the county of the funds here involved on the silent record as to why the funds were paid to Thomas in the first place, would, in my opinion, open the door to approving a county entitlement to funds coming into the hands of a sheriff while elected to office regardless of where the funds came from or how the sheriff obtained them.

If a sheriff or other officer mentioned in Article 19, § 23, could be forced in a civil action to account and pay over to the county money he should obtain through bribery or other unlawful means, it would only follow that such officer should account and pay over such funds without being forced by civil action. Such procedure could, of course, swell a public treasury with illgotten gains and result in an intolerable situation not contemplated or covered by Article 19, § 23.

It is entirely, possible from the record before us that neither Southland nor Thomas had any criminal intent or ulterior motive in paying and receiving the money here involved; but the devious method by which the payments were made indicates that Southland and Thomas knew the money should not have been paid or received, and indicates that it should not be passed on to the county treasury as “perquisites” under Article 19, § 23, of the Constitution.

For the reasons stated I concur in the majority opinion.

J. L. Hendren, Special Justice,

dissenting. I respectfully dissent to that portion of the majority opinion reversing the decree of the Chancellor on Exchange (hereinafter referred to as Chancellor) with respect to the following points relied upon on this appeal by appellant, Sheriff Marion Thomas (hereinafter referred to as Sheriff Thomas) and his sureties, Fidelity & Deposit Company of Maryland and Maryland Casualty Company (hereinafter collectively referred to as sureties), who are also appellants herein.

Appellant Sheriff Thomas’ Point II:

THAT THE COURT ERRED IN FINDING THAT FUNDS RECEIVED BY APPELLANT FROM SOUTHLAND GREYHOUND TRACK WERE PUBLIC FUNDS, IN VIOLATION OF THE CONSTITUTION OF THE STATE OF ARKANSAS AND INITIATED ACT NO. 1 OF CRITTENDEN COUNTY.

Appellant sureties’ Point II:

THE COURT ERRED IN ITS FINDING THAT THE SOUTHLAND FUNDS WERE RECEIVED BY APPELLANT, MARION THOMAS, IN AN OFFICIAL CAPACITY, AS EITHER PAYMENTS DUE THE COUNTY OR EXTRA COMPENSATION AS SHERIFF, SINCE THE PREPONDERANCE OF THE EVIDENCE ESTABLISHED THAT THE SOUTHLAND FUNDS WERE GIFTS TO THE APPELLANT, MARION THOMAS, FOR WHICH NEITHER HE NOR HIS SURETIES WERE ACCOUNTABLE TO THE APPELLEE.

Appellant sureties’ Point III:

REGARDLESS OF THE NATURE OF THE SOUTHLAND FUNDS OR OF THE RECEIPT THEREOF BY THE APPELLANT, MARION THOMAS, THE APPELLANT, SURETY COMPANIES, WERE NOT LIABLE TO THE APPELLEE, THEREFORE, AS A MATTER OF LAW.

Appellant sureties’ Point IV:

THE COURT ERRED IN AWARDING PENALTY AND ATTORNEYS’ FEE UNDER ARK. STAT. ANN., SECTION 66-3238 AGAINST APPELLANT, SURETY COMPANIES.

The above points have to do with the receipt by Sheriff Thomas, during the years 1965 through 1969, of the total sum of $8,800.10 from Southland Racing Corporation (hereinafter referred to as Southland). The Chancellor held that these Southland funds were received by Sheriff Thomas by virtue of his status as Sheriff; that the funds were, therefore, a “perquisite” within the meaning of Article XIX, Section 23 of the Arkansas Constitution; that without considering the Southland funds, Sheriff Thomas received the $5,000.00 per year compensation permitted him under Article XIX, Section 23; that the receipt by Sheriff Thomas of the Southland funds under the circumstances shown, constitutes a violation of Article XIX, Section 23; that Sheriff Thomas and his sureties must account for and pay over to Crittenden County the Southland funds pursuant to Article XIX, Section. 23; and that the sureties are both liable for 12% penalties and attorneys’ fees under Ark. Stat. Ann., Section 66-3238 since, when the Southland funds are added to other funds required by the decree to be paid to the county, the respective exposures of the sureties on their bonds are reached and exceeded.

The majority finds that the Chancellor erred in holding that the Southland funds in question were received by Sheriff Thomas “by virtue of his office” and since they were so received, they must be considered a “perquisite” within the definition of that term in Article XIX, Section 23 of the Constitution. The majority further expressed the view that the Southland funds were not funds to which the county was entitled; had any interest in or could demand or file suit for collection; that they were not paid for any public purpose, nor to the detriment of any public obligation; they were not “public funds” for which Sheriff Thomas could be charged; and the receipt of same by Sheriff Thomas was not in violation of Article XIX, Section 23 of the' Constitution. In so holding, the majority comments that it is not thereby approving the method, legality or morality of the “manner” of Sheriff Thomas’ receipt of the Southland funds since this is a civil accounting action and not a criminal prosecution.

Unlike the majority, I find no merit in any of the above-stated points for reversal relied upon by appellants and I am unable to agree with the foregoing views of the majority and the reasoning supporting the said views.

The points for reversal hereinabove mentioned, raise two basic issues:

(1) Were the Southland funds received by Sheriff Thomas by virtue of his being the incumbent in the office of Sheriff of Crittenden County?
(2) Where a public official receives from the public, in public funds, the $5,000.00 per year maximum compensation permitted him under Article XIX, Section 23 of the Arkansas Constitution, does this constitutional provision prohibit his receipt, at the same time, of secret private contributions made directly or indirectly to him, without the knowledge and consent of the public he serves ?

In order to discuss the issues hereinabove set out, it is necessary to review the testimony and evidence in the record concerning the Southland funds and their receipt by Sheriff Thomas.

It was not disputed at trial and the proof clearly shows that during the years in question, Sheriff Thomas received from Crittenden County $5,000.00 per year, together with reimbursement for actual expenses incurred by him in connection with the discharge of his office as Sheriff of Crittenden County. Further, there was no dispute at trial and the proof clearly shows, that Sheriff Thomas received from Southland the sum of $1,700.10 during 1965; $1,700.00 for each of the years 1966, 1967, and 1968; and the sum of $2,-000.00 during 1969, for a total of $8,800.10. Sheriff Thomas and his sureties concede these facts on this appeal.

The only testimony concerning the manner in which Sheriff Thomas received the $8,800.10 from Southland came from Charles Ralph York, the President of Farrior’s, Inc., of Little Rock (a uniform and law enforcement equipment supplier), and from Sheriff Thomas himself.

York testified that he received the payments from Southland hereinabove mentioned by way of checks issued by Southland to Farrior’s for the alleged purpose of paying fictitious invoices, which were, either before or after the issuance of the checks, sent to Southland by Farrior’s for various items of uniform clothing, which items never were, in fact, shipped at all. York further testified that he cashed the checks and delivered the funds therefrom over to Sheriff Thomas.

Sheriff Thomas admitted York told him Southland would send York checks, which York would then cash and deliver to him, since the checks were sent to York for the Sheriff. Sheriff Thomas denied knowing about this until he was approached concerning it by York. Sheriff Thomas also denied having anything to do with the preparation of the invoices sent by Farrior’s to Southland, but acknowledged receipt of the funds from Southland by way of York and reporting them as income. Sheriff Thomas further testified he presumed he received the money because he held the office of Sheriff, but that the funds were not paid from public funds since the source of the money was Southland. Sheriff Thomas stated he considered the funds additional remuneration in addition to his salary, but maintained the funds were not from Crittenden County and were not public funds and he saw no reason why there was anything illegal about them. Sheriff Thomas further stated that Southland was not obligated to give the money to him and he accepted it because it wasn’t public funds and they wanted to give it to him, as they had other Sheriffs.

The Chancellor sustained appellee’s objection to a line of cross-examination apparently designed to draw out testimony that persons holding the office of Sheriff of Crittenden County prior to the incumbency of Sheriff Thomas, had received such funds from Southland. On appeal, the sureties claim error in this ruling and urge that, had the testimony been received, the evidence would have shown that York had been a conduit for Southland funds in the past and that the payments had no official purpose, but were rather gifts to an incumbent Sheriff.

The Chancellor, having heard the testimony and observed the demeanor of both Charles Ralph York and Sheriff Marion Thomas, concluded that a preponderance of the evidence shows that the Southland funds had been received by Sheriff Thomas by virtue of his status as the Sheriff of Crittenden County and that he would not have received the funds had he not been the incumbent Sheriff. The Chancellor went on to say that since the Southland funds had come into Sheriff Thomas’ possession by reason of his function as Sheriff, the funds were public funds for which he must account as trustee, citing Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970).

This Court has repeatedly held that we determine equity cases de novo, upon the record made in the Court below, but reverse only those cases where the Chancellor has found or decreed contrary to a preponderance of the testimony. White v. Williams et al, 192 Ark. 41, 89 S.W. 2d 27 (1936), and cases cited therein.

In the instant case, the allegations, and proof offered in support of same, are quite complicated and detailed, and numerous witnesses were heard by the Chancellor over a period of several months. The transcript of the trial proceedings consists of approximately 2,500 pages. The “Findings of Fact and Conclusions of Law” entered by the Chancellor are lengthy and detailed, reflecting meticulous and intensive analysis of the exhibits and testimony offered at trial. This, then, is a case in which the decision of the Chancellor should be given particular regard consistent with the foregoing principles followed by the Court.

A review of this lengthy record convinces the writer that the preponderance of the evidence received, and, indeed the evidence properly rejected by the Chancellor (concerning which rejection the sureties now complain) supports the Chancellor’s finding that the Southland funds were received by Sheriff Thomas by virtue of his status as Sheriff of Crittenden County and that he would not have received them had he not been the incumbent Sheriff. Accordingly, I am unable to agree with the majority’s view on the first issue hereinabove mentioned.

Turning to the second issue, I preface my discussion by stating three basic premises which I believe to be clearly established by a preponderance of evidence in the record: (1) During the years in question, Sheriff Thomas received the $5,000.00 per year maximum compensation permitted him under Article XIX, Section 23 of the Arkansas Constitution and the enabling legislation therefor; (2) During the years in question, Sheriff Thomas also received a total of $8,800.10 (the Southland funds) in a suspicious and surreptitious manner, which funds did not come into his hands pursuant to any valid law and which funds were received by him without the knowledge and consent of Crittenden County; and (3) Sheriff Thomas received the Southland funds by virtue of his status as Sheriff of Crittenden County and the same, therefore, constituted a “perquisite” under Article XIX, Section 23 of the Arkansas Constitution.

All parties to this appeal agree (and indeed it was never urged by appellee to the contrary below) that the Southland funds were not “public funds” in the sense that the state, or a sub-division thereof, paid them to Sheriff Thomas or in the sense that they ime into Sheriff Thomas ’ hands pursuant to valid laws. As x>ve-pointed out, a preponderance of the evidence shows that Sheriff Thomas received the Southland funds under color of his office and by virtue of his status as the incumbent Sheriff of Crittenden County, Arkansas. I think, therefore, that the Southland funds were “public funds” in the sense that their receipt by Sheriff Thomas by virtue of his office constituted their receipt by the public which he was then serving, to-wit: Crittenden County, Arkansas. This follows because a public office is a public trust and funds received by the holder of a public office by virtue of his status as the incumbent in that office are trust funds not received by him as an individual, but received by him as a trustee. Fidelity & Deposit Co. v. Cowan, 184 Ark. 75, 41 S.W. 2d 748 (1931); Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970). Further, this trustee relationship extends not only to “public funds” which are properly received by the nolder of a public office, but also to funds received under color of public office which are not “public funds” in the sense that the trustee had no legal right to collect or receive them and his principal likewise had no legal right to collect or receive them. Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337 (1970).

The Parker case was a taxpayer’s suit to require a Deputy Prosecuting Attorney to account for alleged illegal court fees received by him. In Parker the Court quoted with approval from Yuma County v. Wisener, 45 Ariz. 475, 46 P. 2d 115 (1935), as follows at page 638 of 249 Ark., at page 340 of 460 S.W. 2d:

“. . . It is the usual rule that where a public officer obtains money under color of office, which he had no legal right to collect, that he is not permitted in a suit to recover such sums, either from himself or his bondsmen, to contend that the state has no right to recover the money from him because it had not authorized him to collect it from the citizens whom he had deceived in regard to the law. (citing cases from other jurisdictions).”

In the case before us, Sheriff Thomas has contended and the majority has held, that since the Southland funds were not funds to which the county was entitled, had any interest in or could demand or file suit for collection, Sheriff Thomas cannot be charged with them (as being “public funds” for which he must account) and his receipt of same was not in violation of Article XIX, Section 23 of the Constitution. No authority is cited in support of this holding. In rejecting the sureties’ argument that in a taxpayer’s suit for an accounting, it must be shown that some amount of wrongdoing existed in connection with the receipt of funds such as the Southland funds, the majority finds that there must be some interest of the county and its citizens in the funds received before a public official may be held responsible in a civil accounting action and that, in the instant case, the proof of Appellee was insufficient. No authority is cited in support of this holding.

In my view, both these holdings of the majority are contrary to the decision in Parker v. Laws, supra. There, the funds sought to be recovered by the taxpayer were not funds to which the county was entitled, had any interest in or could demand or file suit for collection. The funds were illegal Court fees belonging to private individuals, yet this Court permitted the suit against a public officer requiring him to account for same and, on remand, ordered the funds in question held in the registry of the Chancery Court for a reasonable time so that the private persons to whom they belonged could claim them. In so directing, the writer of the Parker opinion expressed the concern that if the funds were simply ordered paid over to the county, they might be expended for county purposes within the fiscal year before the claimants to same could effectively assert their rights, and proceeded to state, at page 638 of 249 Ark.:

“To avoid that possible injustice, we direct that the sums be retained in the registry of the Chancery Court, as in the case of a bill of interpleader, until the rightful owners have had a reasonable notice and an opportunity to assert their claims. Any unclaimed balance will then be paid over to the county. In utilizing the equitable principles of interpleader, we are merely following the settled rule by which a court of Chancery devises a remedy to fit the need. Renn v. Renn, 207 Ark. 147, 179 S.W. 2d 657 (1944).”

I am unable to reconcile the majority’s holding in this case with the holding in Parker v. Laws, supra. In my opinion, the Parker case is ample authority for requiring Sheriff Thomas to account for the Southland funds. Further, I believe the procedure outlined by the Court in the Parker case is appropriate here. The Southland funds should be paid into the registry of the Crittenden County Chancery Court, as in the case of a bill of interpleader, until Southland Racing Corporation and Farrior’s, Inc., the source and conduit of the funds, respectively, have each had a reasonable notice and opportunity to assert any claim they may have to the same. If no such claim or claims are asserted, the balance should then be paid over to the County.

It is unnecessary to this decision to determine, with finality, what should be done with the Southland funds. The point is: Since Sheriff Thomas admittedly received the $5,-000.00 per year maximum compensation permitted him under Article XIX, Section 23 of the Constitution during the years in question, it is enough to hold that he cannot keep the Southland funds which were received in addition to his legally permitted compensation, apd he must pay the said funds over to the proper authorities. See State ex rel. Poinsett County v. Landers, 183 Ark. 1138, 40 S.W. 2d 432 (1911).

Second, even if it be held that the Southland funds were not “public funds”, the receipt and retention of same by Sheriff Thomas constitutes a violation of the clear wording and intent of said Article XIX, Section 23 which constitutional provision reads as follows:

“Section 23. MAXIMUM OF OFFICERS’ SALARIES OR FEES — No officer of this State, nor any county, city or town shall receive, directly or indirectly, for salary, fees and perquisites more than FIVE THOUSAND DOLLARS net profit per annum in par funds and any and all sums in excess of this amount shall be paid into the state, county, city or town treasurer as shall hereafter be directed by appropriate legislation.”

This constitutional provision purports to limit what compensation a public officer may receive and specifically states that the limit applies to “net profit per annum in par funds” whether received “directly or indirectly” and whether received for “salary, fees . . (or) . . perquisites”. The authors did not choose to specifically state that the limit applied only to “public funds” and I find no authority (and none is cited by the majority) justifying the majority’s view that the limit applies only to “public funds”.

The only cases discussed by the majority relative to their decision on the Southland funds were those cases cited by the appellee. Admittedly, these cases do involve “public funds” sought to be retained by a Sheriff in addition to the 55,000.00 per year permitted him by Article XIX, Section 23 of the Constitution. (White v. Williams, 187 Ark. 113, 59 S.W. 2d 23 (1933) ) involved fees authorized by Act 81 of the General Assembly of 1931 for the feeding of prisoners in the county jail; State v. Harmon, 190 Ark. 621, 80 S.W. 2d 619 (1935) involved fees for motor vehicle licenses authorized to be collected by the Sheriff under Act 65 of the General Assembly of 1929 and fees paid by the federal government to the Sheriff for feeding federal prisoners in the county jail; Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970) involved cash bonds posted by defendants in accordance with law, to insure their appearance before magistrate court). However, I do not read these decisions as holding that the limitations of Article XIX, Section 23 apply to only “public funds”. To the contrary, in White v. Williams, 187 Ark. 113, 59 S.W. 2d 23 (1933) this Court indicated that the limitations of Article XIX, Section 23 applied to fees and perquisites received, directly or indirectly, from any source. There the Court decided that any profits made by a Sheriff on amounts received for feeding prisoners in the county jail would be an emolument or perquisite of office as such amounts would be received by the individual holding office by virtue of same and that in determining his total amount of salary under the Constitution, account had to be taken of all fees and perquisites directly received by the Sheriff as the incumbent in the office. In rejecting Sheriff Williams’ contention that there was a distinction between the expense of feeding federal prisoners and county prisoners since the former was a matter solely between the United States Government and the Sheriff personally, this Court, speaking through Justice Butler, stated on Page 118 of 187 Ark., on page 25 of 59 S.W. 2d:

“This is not true, however, for the sums received by him from the government were received because he was a county officer and by virtue of his office. These sums, therefore, stood on no different footing from the fees received from any other source because appellee is required to account for all fees and perquisites received either directly or indirectly.”

The foregoing language by Mr. Justice Butler makes it abundantly clear that a Sheriff is required to account for all fees and perquisites received from any source, either directly or indirectly, and this requirement is not limited to those fees and perquisites which might be characterized as “public funds” because of the identity of the giver. The precise issue now under consideration appears to be one of first impression before this Court and no case has been found directly controlling it.

As was said in Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964), 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 light of other provisions relating to the same subject. Further, the Constitution is to be construed according to the sense of the terms used and the intention of its authors. With these principles in mind, it is instructive to consider the provisions of Article XVI, Section 4 of the Arkansas Constitution in our effort to determine if the authors of Article XIX, Section 23 intended the limitations therein expressed to apply only to “public funds”. Article XVI, Section 4 reads:

“Section 4. THE SALARIES AND FEES OF STATE OFFICERS — The General Assembly shall fix the salaries and fees of all officers in the state, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the state shall be fixed by law.”

I think it obvious that the salaries and fees which the General Assembly is authorized to fix under Article XVI, Section 4, are to be paid by the State, or its subdivisions, in “public funds” since these public entities have no other kind of funds. It is further obvious that the General Assembly, in fixing such salaries and fees pursuant to Article XVI, Section 4, must observe the limitations set forth in Article XIX, Section 23 as to the maximum compensation an officer of the state may receive per year.

It should be noted that Article XIX, Section 23 places a limit on “perquisites” which a state officer may receive, but Article XVI, Section 4 doesn’t authorize the General Assembly to fix or limit “perquisites”. The omission of the term “perquisite” from Article XVI, Section 4 would not seem to have been inadvertent, but rather seems to have been conscious and deliberate in view of the meaning of the term “perquisite”. Webster’s Seventh New Collegiate Dictionary (1965) defines “perquisite” as “a privilege, gain, or profit incidental to regular salary or wages” and as a “gratuity, tip”. Doubleday Dictionary (1975) defines “perquisite” as “any incidental profit from service beyond salary or wages”.

These, definitions make it clear that a “perquisite” is no part of salary, but rather is a privilege, gain, profit, gratuity or tip incidental to and beyond regular salary or wages. Since Article XVI, Section 4 only authorizes the General Assembly to fix salaries and fees to be paid state officers by the public out of public funds and prohibits such officers from receiving greater salary or fees than that fixed by law, from whence can come the “perquisites” mentioned in Article XIX, Section 23 and in what manner can they be paid if not in “public funds”? It would seem obvious from the foregoing discussion that the authors of the Constitution did not intend that “perquisites” should be considered to be a part of a state officer’s compensation coming from the public generally and paid by or received out of public funds. Further, when Article XVI, Section 4 and Article XIX, Section 23 are considered together, one is impelled to the inescapable conclusions that Article XVI, Section 4 relates to the compensation paid to a state officer in public funds from the state or its subdivisions and that Article XIX, Section 23 both limits the amount of public funds which may be used to compensate a state officer under Article XVI, Section 4 as well as the “perquisites” which may be received by a state officer from any source, public or private.

In a previous consideration of these constitutional provisions limiting the compensation which may be received by state officers, this Court has pointedly stated its opinion of what the authors of the present constitution intended by Article XVI, Section 4, and Article XIX, Section 23. Speaking through Justice Wood, this Court said in Nixon v. Allen, 150 Ark. 244, 234 S.W. 45 (1921), at Page 258 of 150 Ark.:

“. . . Article XVI, Section 4, together with Article XIX, Section 23, were intended by the framers of our organic law to forestall, if possible, any extortion, extravagance, or corruption on the part of those entrusted with the administration of public office ...”

■I am not persuaded that the.efforts of the authors of the Constitution to forestall, if possible, any extortion, extravagance, or corruption on the part of those entrusted with the administration of public office, were prompted solely by a concern that those in public office might perpetrate those evils by paying out public funds to, or permitting public funds to be retained by, others in public office over and above the expressed constitutional limits. If one in public office should engage in extortion, extravagance, or corruption, would his victims be others who hold public office or would his victims be the public he serves? If these constitutional provisions do not protect the public from one in public office who would extort private funds from them to augment his salary or who would be corrupted by the receipt of secret private contributions in augmentation of the salary paid him by the public, where then, in the Constitution, is the public’s protection from these evils to be found?

In my opinion, the authors of the Constitution intended Article XIX, Section 23, in addition to its more obvious purposes, to prohibit precisely the kind of secret private contributions to state officers such as are involved in this case even where, as here, there is no actual evidence of extortion or corruption. Even in the absence of such evidence, when secret private contributions are made to a Sheriff in a suspicious and surreptitious manner without the knowledge and consent of the county and the people therein the Sheriff serves, the result is the opportunity for and the appearance of the very evils warned of in Nixon v. Allen, supra.

In a search for some authority supporting the majority’s view on the second issue now under discussion (other than cases cited in the majority opinion which are, in my mind, not inconsistent with, if not supportive of, the writer’s viewpoint), the case of Gipson v. Ingram, 215 Ark. 812, 233 S.W. 2d 595 (1949) was found. In that case there is included some dicta which might provide some comfort for one holding the majority’s view. In the Gipson case, this Court held that when the legislature fixes a maximum annual salary of an employee, then no state agency or institution may use any part of its cash funds to supplement or enlarge the salary so fixed by the legislature. The Court went on to state, at Page 821 of 215 Ark.:

“In this connection, we point out that some employees, for example, see Section 17-517, Ark. Stat. of 1947, receive additional compensation derived from federal as well as county sources, and some also from endowments or gifts. The legislative determination in the appropriation act of a maximum annual salary does not prohibit such supplementation from funds from such other sources, as these are not “cash funds” within the purview of this topic. No injunction should prohibit the supplementation of salaries by the use of funds given for salary purposes by sources not controlled by the legislature, such as private donations and federal grants. Of course, the agencies and institutions may accept donations earmarked for salaries, even though they may not use general cash funds to increase the salaries fixed by the legislature.”

There are at least two reasons why the above language in the Gipson decision cannot be regarded as supporting the view that a Sheriff, who is a state constitutional officer, may have his salary supplemented by funds given for salary purposes by sources not controlled by the legislature, such as endowments, gifts, or donations. First, this dicta related to employees and not to state officers. In Bean v. Humphrey, 223 Ark. 118, 264 S.W. 2d 607 (1954), this Court held that, with respect to the salary limitations of Article XIX, Section 23 of the Constitution, there are key distinctions between those who are employees and those who are officers and that the said limitations do not apply to employees, but only to state officers.

Second, the said language indicates that the supplementation of an employee’s salary, there said to be permissible and not in violation of an act fixing the maximum of set salary, could be accomplished by the employer of the employee, using endowments, gifts and donations which were given to the employer and earmarked for salaries. In the case at bar, the Southland funds were not given to Crittenden County and earmarked as additional salary for Sheriff Thomas. To the contrary, the funds were secretly and surreptitiously given to Sheriff Thomas without the knowledge and consent of Crittenden County. Accordingly, I find the Gipson dicta not to be supportive of the majority view and regard it as very little comfort for the same.

In my view, there is a further reason why the Southland funds should have been accounted for and paid over to Crittenden County by Sheriff Marion Thomas. This Court has previously held that the office of Sheriff is a public trust. Brewer v. Hawkins, supra. It is clear beyond the need for citation of authority that the holder of a public trust owes to the public complete and total disclosure of any fact or circumstance which might have a bearing on his ability and intention to faithfully and impartially discharge his duty. The receipt by an incumbent Sheriff of funds given to him by a private corporation in a suspicious and surreptitious manner as is disclosed by the facts in this case, is a fact which the citizens of Crittenden County are entitled to know as the beneficiaries of the public trust reposed in the office of Sheriff.

I further dissent to this Court’s failure to address itself to appellee’s contention that the decree of the Chancellor should be affirmed by reason of the failure of appellant to comply with Rule 9 of this Supreme Court in the preparation of the briefs submitted herein. I think the contention is well-taken and that this appeal could have been disposed of on that ground had not the important issue concerning the meaning and effect of Article XIX, Section 23 of the Arkansas Constitution been involved. Since I would affirm the decree of the Chancellor on the merits, I deem it unnecessary to extend this dissenting opinion further by discussing the deficiencies in the briefs submitted by appellants. However, I would award additional attorneys’ fees to Appellee by reason of this appeal in view of the unnecessary extra time and effort required by reason of the said deficiencies.

I would affirm the decree of the Chancellor, rejecting all points urged for reversal by appellants, and would supplement the decree by directing that the Southland funds in the amount of $8,800.10 should be paid into the registry of the Crittenden County Chancery Court, as in the case of a bill of interpleader, until Southland Racing Corporation and Farrior’s, Inc., the source and conduit of the funds, respectively, have each had a reasonable notice and opportunity to assert any claim they may have to the same. The Clerk of the Chancery Court of Crittenden County should be directed to give the said notice to Southland Racing Corporation and Farrior’s, Inc. by certified mail. If no claim or claims are asserted to the funds within a reasonable time after receipt of the said notice by the parties to whom the same is directed, the said funds should then be paid over to Crittenden County-

I am authorized to state that Justice Roy joins in this dissent.

       The undisputed evidence indicated Appellant Thomas received the sum of $1,700.10 during 1965, $1,700.00 for each of the years 1966, 1967 and 1968, and the sum of $2,000.00 during 1969.


author: Randall W. Ishmael, Special Justice.

text:
    L. J. (Leaster) MERRITT, County Clerk v. Guy H. JONES Sr.
    75-70
    533 S.W. 2d 497
    Opinion delivered February 23, 1976
    [Rehearing denied March 29, 1976.]

      James Guy Tucker, Atty. Gen., and Alex Streett, Prosecuting Atty., Fifth Judicial Circuit, by: Robert M. Moore, Jr., Asst. Atty. Gen., for appellant.

      William M. Clark, Guy Jones Jr., and Phil Stratton, for appellee.
   Randall W. Ishmael, Special Justice.

In April, 1973 Appellee was tried in the United States District Court for the Eastern District of Arkansas, Western Division, and by jury verdict found guilty on four counts of filing fraudulent income tax returns in an attempt to evade taxes for the years 1965 and 1966; and making and subscribing false tax returns (26 U.S.C. 7201 and 26 U.S.C. 7206(1).)

The sentence of the U.S. District Court was a fine of $5,-000.00. The imposition of sentence as to imprisonment only was suspended and Appellee was placed on probation for a period of three years.

Appellant in his capacity as County Clerk and Permanent Registrar of the voter registration list for Faulkner County obtained an authenticated copy of the U.S. District Court Judgment and Order of Probation, cancelled Appellee’s name from the voter registration list and immediately gave notice of such cancellation to Appellee. This action by Appellant was under the apparent authority of Amendment 51 to the Arkansas Constitution, specifically:

Section 11. Cancellation of Registration.

(a) It shall be the duty of the Permanent Registrar to cancel the registration of voters: •
* * *
(4) Who have been convicted of felonies and have not been pardoned;
* * #

It isn’t necessary that we review each of the pleadings and procedural steps in the Circuit Court of Faulkner County. It is sufficient to say that upon petition of Appellee the Faulkner County Board of Registration (Board of Election Commissioners) ordered Appellant to reinstate Appellee’s name to the voter registration list. Appellant appealed from that order by filing a complaint in the Circuit Court. Appellee demurred to the complaint and upon order of the Circuit Court the demurrer was sustained and Appellant’s complaint dismissed.

This appeal is before us on three principal points:

(1) Was the Judgment and Order of Probation in the U.S. District Court a final conviction?

(2) Was the crime for which Appellee was convicted a felony within the meaning and purpose of Amendment 51 to the Arkansas Constitution, Section 11(a)(4)?

(3) Was Appellant as Registrar authorized to cancel Appellee’s registration upon receiving notice of the conviction in the U.S. District Court?

At this point we find it helpful to set out the relevant portion of the Judgment and Order of Probation of. the U.S. District Court:

IT IS ADJUDGED that the defendant is guilty as charged and convicted.
IT IS ADJUDGED that on Count I of the indictment, the defendant pay a fine to the United States in the sum of $5,000.00 and the imposition of sentence as to imprisonment only is suspended and defendant placed on probation for a period of three (3) years. Imposition of sentence suspended on Counts II, III and IV of the indictment and defendant placed on probation for a period of three (3) years, to run concurrently with probationary period imposed on Count I.

Appellee takes the position that because there was no imposition of a penitentiary sentence, there was no final conviction. We disagree. By the plain language of the judgment it is clear that there was a final conviction in the U.S. District Court.

As Appellee points out in his brief, there was not a sentence of imprisonment the execution of which was suspended, but rather the imposition of sentence as to imprisonment was suspended. Had there been no fine imposed, then we would agree that the judgment was not final as there was something remaining to be done. In fact, however, a fine was imposed and in that regard the judgment was final and left nothing to be done but enforce execution or collection of the fine. In federal criminal prosecutions final judgment in the case means sentence. Berman v. United States, 58 S. Ct. 164, 302 U.S. 211, 82 L. Ed. 204 (1937). It is clear in this case that Appellee was finally sentenced to a fine and such was unconditional and subject only to appeal by Appellee. We do not find this inconsistent with the opinion in Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970). The obvious distinction here is that nothing further was to be done. There was an immediate and final sentence of a fine of $5,000.00 and neither the imposition nor execution of that sentence was suspended. Also, if there be any doubt remaining, we adopt the principle that there can be no fine unless there is a conviction. Almond v. Countryside Casualty Company, 329 F. Supp. 137 (W.D. Ark. 1971).

In considering whether the offense for which Appellee was convicted is a felony, we must examine the provisions of the federal law (Internal Revenue Code) under which he was prosecuted.

26 U.S.C.

Section 7201. ATTEMPT TO EVADE OR DEFEAT TAX.
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,-000.00 or imprisoned not more than five years, or both together with the cost of prosecution.
Section 7206. FRAUD AND FALSE STATEMENTS.
Any person who—
^ *
Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter;
shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000.00, or imprisoned not more than three years, or both, together with the cost of prosecution.

In the purview of federal law the offenses are felonies and are specifically so stated to be. Also, while an attempt to evade taxes due to the State of Arkansas is characterized as a misdemeanor by our statutes (Ark. Stat. Ann. 84-2036) that is a totally different offense and Arkansas does not have a criminal sanction or provision of any kind for a violation of United States income tax laws or in particular any attempt to evade United States taxes. The question is: Was the offense for which Appellee was convicted a felony within the meaning and purpose of Amendment 51 to the Arkansas Constitution and specifically as the word “felonies” is used in Section 11(a)(4).

It has long been, if not always, the law in this State that an offense for which a person may be imprisoned in the state penitentiary is a felony. By the plain wording of the federal statutes, Appellee could have been imprisoned for up to five years in a penitentiary. It is not material that Appellee was not in fact sentenced to a term in the penitentiary and did not in fact serve any time. The relevant Arkansas Statute provides:

A felony is an offense of which the punishment is death or confinement in the penitentiary. (Ark. Stat. Ann. 41-103.)

We consider that to mean that if the maximum sentence for an offense is death or confinement in the penitentiary, then even though a lesser sentence is imposed, the offense is deemed a felony. This has been considered and decided by this Court in Burrell v. State, 203 Ark. 1124, 160 S.W. 2d 218 (1942):

“The fact that the amendment provided imprisonment in the Arkansas penitentiary would have been sufficient to make it a felony, under Section 2922 of Pope’s Digest [now Ark. Stat. Ann. 41-103].
* * >(t
Although under this amendment it is optional with the jury to fix a punishment at imprisonment in the Arkansas penitentiary, or at a fine, or at both fine and imprisonment, the offense is not reduced from a felony to a misdemeanor in the event a fine only is assessed.”

Also, in Shoop v. State, 209 Ark. 642, 192 S.W. 2d 122 (1946):

The maximum penalty that may be imposed or the things authorized to be done are the controlling characteristics in determining whether an offense is a felony or a misdemeanor.

As Appellee could have been imprisoned in the penitentiary under the quoted statutes, we conclude that within the meaning of the term “felony” in the State of Arkansas the offenses were felonies.

In his brief Appellee has, starting with the Arkansas Constitution of 1868, traced the development of the provisions relating to qualifications of voters up to the point immediately before Amendment 51. Based upon the presence of the terms “felony at common law” and “felony ... by law passed by the General Assembly” in other provisions of the Arkansas Constitutions and amendments prior to Amendment 51 and coupled with the argument that Amendment 51 did not amend any prior provisions regarding voter qualification but merely set forth a method of registration, Appelleecontends that his registration may not be cancelled except upon conviction of a felony at common law or a felony by laws passed by the General Assembly. First we address the proposition that Amendment 51 does not set qualifications for voters and thus does not amend previously existing provisions as to qualifications. Certainly a reading of Amendment 51 will show that some qualifications for voters are set forth clearly and at the very least Amendment 51 states specific disqualifications. To that extent previous provisions were amended by Amendment 51. Particularly with regard to felonies Section 11(a)(4) uses the word “felonies” without limitation, qualification or condition. It is plain and unambiguous and in the absence of any other meaning being stated or at least implied we must interpret it to have superseded any former more restricted or defined term. With regard to the construction of constitutional provisions we stated in State ex rel. Attorney General v. Irby, 190 Ark. 786, 81 S.W. 2d 419 (1935):

... we are irrevocably committed to the rule that the Constitution of this State should be construed as a frame of laws and not as an ordinary statute and that where the language employed in the Constitution is plain and unambiguous, the Courts cannot and should not seek other aids of interpretation and that every word used should be expounded in its plain, obvious and common acceptation. . . (Citations omitted.)

In examining the restrictive meanings urged by Appellee, we find that “felony at common law” is far too restrictive and could not realistically be read into the word “felonies” as used in Amendment 51. As the common law developed the meaning of the word “felony” changed. At one point it was restricted to the crimes of treason, murder, manslaughter, mayhem and larceny and at other times it was generally stated to be any offense which would occasion the forfeiture of either land or goods and to which capital or other punishment might be superadded. Other meanings from time to time in different jurisdictions were numerous.

As to the term “felony by law enacted by the General Assembly”, that would ignore the laws of sister states and of the United States and would be equally unrealistic.

On the case before us we consider it of principal importance that the offense for which Appellee was convicted was one which we consider to be a felony within the purpose of Amendment 51. The laws violated were enacted by the Congress of the United States and were considered to be of such serious nature as to be characterized and punishable as felonies. And this Court in Supreme Court Committee on Professional Conduct v. Jones, 256 Ark. Appendix (1974), rejected all contentions that such violations did not involve moral turpitude. In State ex rel. Attorney General v. Irby, we quoted the Supreme Court of North Dakota in State, etc. v. Langer, 65 N.D. 68, 256 N.W. 377, considering the rules stated to be sound and based upon reason and logic:

A state has an undoubted right to provide in its constitution that persons may be . . . deprived of the right of sufferage by reason of having been convicted of crime. The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base offense indicative of moral turpitude, is unfit to exercise the privilege of sufferage. . . .

Appellee urges that even if there was a final conviction of a felony within the meaning of Amendment 51, then the action of Appellant as Registrar in cancelling the registration was not authorized. This argument is based upon Section 11 (d) as follows:

It shall be the duty of the Circuit Clerk of each county upon the conviction of any person of a felony to notify promptly the Permanent Registrar of the county of residence of such convicted felon.

Appellee asserts that such notice from an Arkansas Circuit Court Clerk is an absolute prerequisite to cancellation of a registration by the Registrar. That obviously is not the case. Subparagraph 11 (d) simply states an additional duty of the circuit clerk and it is one method by which the Registrar may obtain information concerning disqualification of a voter. It could not be seriously contended that if a person was convicted of murder in a sister state or of bank robbery in United States District Court that he would still be a qualified voter in the State of Arkansas. Moreover, subparagraph 11 (g) specifically provides that the registrar may by house to house canvass or any other reasonable means determine whether the active registration files contain the names of any person not qualified to vote. That subsection also provides for the Prosecuting Attorney upon affidavits to apply for an order of the Circuit Court to determine or cancel a registration. That procedure likewise is only one method and it is not exclusive. In this case appellant obtained an authenticated copy of the Judgment and Order of Probation of the U.S. District Court and we approve that procedure as one method of determining the action of the U.S. District Court upon a criminal prosecution.

Finally, Appellee cites an Act of Congress of June 22, 1868, 15 Stat. 72, Ch. 69, (Vol. 1, Ark. Stat. Ann. p. 313). We note that this point was not presented in circuit court, but we consider it so that the point may be laid to rest. The relevant portion of the cited statute provides:

The Constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States to the right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all of the inhabitants of said state. . . .

First, we must consider that this Act was in 1868, soon after the Civil War, and it was designed and intended to prevent unconstitutional criminal laws as a means of depriving former slaves of the right to vote. That is no longer a consideration. The Act purports to state the conditions upon which the State of Arkansas \yould be readmitted to the Union and be entitled to representation in Congress, but the Supreme Court has ruled that the Confederate States were never out of the Union and, hence, there was no necessity for readmission. State of Texas v. White, 7 Wall 700, 74 U.S. 700, 19 L. Ed. 227. Even if we assume that the Act has some force and effect, its enforcement is in the exclusive domain of Congress. Such was the determination when identical language was considered in an act concerning the State of Virginia’s constitutional poll tax requirement. Butler v. Thompson. 97 F. Supp. 17, aff'd., 341 U.S. 937, 95 L. Ed. 1365, 71 S. Ct. 1002.

In conclusion we are of the opinion that Appellee was finally convicted of a felony within the meaning and purpose of Amendment 51 to the Arkansas Constitution and the procedure and action of Appellant as registrar in cancelling Appellee’s name from the voter registration list of Faulkner County was lawful and proper. The judgment of the circuit court is reversed with direction to overrule the demurrer, reinstate Appellant’s complain as amended and proceed further as appropriate and consistent with this opinion.

Roy, J., not participating.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    INSURANCE COMPANY of NORTH AMERICA et al v. Billy B. NICHOLAS, Administrator
    75-238
    533 S.W. 2d 204
    Opinion delivered March 1, 1976

      Wright, Lindsey & Jennings, and Plegge, Lowe & Whitmore, for appellants.

      Kay L. Matthews, for appellee.
   George Rose Smith, Justice.

This multi-party lawsuit arose as a result of there having been two concurrent fire insurance policies upon a house in Little Rock that was partially damaged by fire on December 2, 1972. The record owner, Hallie B. Nicholas, died some months later. The appellee, as the administrator of Mrs. Nicholas’s estate, brought this suit against the two insurance companies (joining as defendants the other beneficiaries ,of the policies). The chancellor’s decree held each insurer liable in the amount sued for, with penalty and attorney’s fees. For reversal each insurer contends that it is not liable to the extent found by the chancellor.

The facts are not in dispute. Mrs. Nicholas originally owned the house, subject to a mortgage not in controversy. She sold the property, by an installment contract, to Edward D. Briscoe, Jr. At that time one of the insurers, Fireman’s Fund, insured the property for $10,000, naming Mrs. Nicholas and Briscoe as the insureds. That policy contained a “pro rata” other insurance clause (a term explained in Ark. Grain Corp. v. Lloyd’s, 240 Ark. 750, 402 S.W. 2d 118 [1966]). Briscoe later contracted to sell the property to Oleaster Coates. The other insurer, INA, then insured the property for $11,000, naming Briscoe and Coates as the insureds. That policy contained an “escape” other insurance clause (also explained in Lloyd’s).

The fire damage amounted to $13,153.47. The two insurers took different courses. INA, without invoking its escape clause, simply paid the full amount of its policy, $11,-000, to its insureds, Briscoe and Coates, who presumably divided the money as they saw fit. Briscoe, before this suit was filed, fell behind in his payments to Mrs. Nicholas and reconveyed his interest to her. While the suit was pending Briscoe was adjudicated a bankrupt and was dismissed from the case.

The other insurer, Fireman’s Fund, invoked the benefit of its pro rata clause by tendering to its insureds, Nicholas, and Briscoe, its proportionate part (10/21st) of the loss. Nicholas rejected the tender and brought this suit, successfully contending in the trial court that Fireman’s Fund is liable to him for its full $10,000 and that INA is liable to him for the remaining $3,153.47 of the loss.

We first consider INA’s appeal. Here the issue is comparatively simple. An insurance policy is ordinarily a personal contract, upon which the insured alone is entitled to recover. Langford v. Searcy College, 73 Ark. 211, 83 S.W. 944 (1904). INA was therefore justified in admitting liability, waiving its escape clause, and paying the full amount of its coverage to its named insureds, Briscoe and Coates. It makes no difference that INA knew of Mrs. Nicholas’s interest in the property when it paid the loss. Whatever claim Mrs. Nicholas might have asserted against INA was necessarily derived from Briscoe and was extinguished when INA paid Briscoe in full. Mrs. Nicholas could not claim the benefits of Briscoe’s INA policy without also being subject to its burdens. Nicholas also asserts an equitable lien against the proceeds of the INA policy, but that also was a matter between Mrs. Nicholas and Briscoe. It is argued that this lien theory is supported by the presence of a standard mortgage clause in the INA policy. That clause, however, was never activated, because no mortgagee was named in the policy (as the clause required). We conclude that the chancellor erred in holding INA liable to Nicholas.

As to Fireman’s Fund, the pivotal question is whether the INA policy constituted other insurance within the meaning of Fireman’s Fund’s pro rata clause. Such double insurance exists when the two policies cover the same interests in the same property, against the same risks, and for the benefit of the same person. Couch on Insurance 2d, § 37:1394 (1962). Here the questions are whether the two policies covered the same interests for the benefit of the same person.

Briscoe’s insured interest under the two policies was evidently the same. What he purchased from Mrs. Nicholas is what he sold to Coates — nothing more, nothing less. That he was paying Mrs. Nicholas and being paid by Coates did not divide his estate into two ownerships. It must be remembered that the purpose of the pro rata clause is to protect the insurer against the hazards of overinsurance. Such a hazard would have existed if Briscoe had insured the full value of his estate with two different insurers.

By the same reasoning the two policies were for the benefit of the same person — Briscoe. This particular point seems to have arisen very infrequently, but the cases are uniform in holding that there is double insurance where the same person is an insured in each policy. Horridge v. Dwelling-House, Ins. Co., 75 Iowa 375, 39 N.W. 648 (1888); Pitney v. Glen’s Falls Ins. Co., 65 N.Y. 6 (1875); Mussey v. Atlas Mut. Ins. Co., 14 N.Y. 79 (1856). Again the hazard of overinsurance would exist if Briscoe could recover in full under each policy. As a matter of fact, owing to INA’s waiver of its escape clause, the two insurers will pay $11,000 plus $6,263.56, a total that exceeds the physical damage of $13,153.47. If the Nicholas estate sustains a loss it will be attributable .o Mrs. Nicholas’s not having taken out a policy by herself, instead of with Briscoe, and to the latter’s insolvency after he was paid by INA. Needless to say, principles of law that reach a sound result with respect to solvent litigants cannot be abrogated simply because the fortuitous intervention of insolvency may cause a hardship.

Reversed and remanded for the entry of a decree in harmony with this opinion.

Byrd, J., dissents.

Fogleman, J., not participating.

Conley Byrd, Justice,

dissenting. I disagree with so much of the majority opinion as holds that the INA policy constituted other insurance to Mrs. Nicholas. The Fireman’s Fund policy lists the insured’s name and address as follows:

“Mrs. Hallie Nicholas, Vendor and Ed Briscoe, Vendee Arkansas Abstract Company 212 Center Street Little Rock, Arkansas”

In 44 Am. Jr. 2d INSURANCE § 1808 it is stated:

“It is generally held that in order for a proportionate recovery clause to operate in the insurer’s favor, there must, under the policies, be both an identity of the insured interest and an identity of risk; and the requirement with respect to an identity of risk is not obviated by the fact that the apportionment clause refers to other insurance ‘whether concurrent or not.’ ”

In 6 Appleman, INSURANCE LAW AND PRACTICE § 3905 (1972), the author states:

“The apportionment of loss between concurrent insurers is proper, where the policy so provides. Proration provisions are inserted in insurance policies to relieve the insurer from the burden of litigating with the insured as to the validity of other policies, and to eliminate any inducement to the insured to commit fraud. But every rule of construction in apportioning losses must yield to the right of the insured to be fully indemnified, and it must always be remembered that the contribution clause in an insurance policy should not be so applied as to diminish the protection of the insured.” [Emphasis mine]

In COUCH ON INSURANCE 2d § 37:1394 (1962), the author states:

“By definition, other or double insurance exists where two or more policies of insurance are effected upon or cover the same interests in the same property, against the same risks, and in favor of, or for the benefit of, the same person. As all of these conditions must concur, it follows that if different persons have different interests in the same subject of insurance, each may insure his interest without effecting other or double insurance. Likewise a policy of insurance containing a stipulation against ‘other insurance’ is not invalidated by the fact that at the time of its issuance a prior policy covering the same property is in existence, unless the insured has an interest in such prior policy, or will derive a benefit under it, in the event of the destruction of the property.”

Also, in 5 Appleman, INSURANCE LAW AND PRACTICE § 3057 (1970), the author states:

“The better rule is to the effect that the interests of vendor and vendee are distinct and different, and that an insurance by such vendee upon his own interest will not nullify insurance previously taken out by the vendor.

Furthermore, the trial court found: (Decree of Oct. 10, 1974)

“16. That the plaintiff was never at any time informed by any of the parties of the existence of the policy coverage issued by the defendant, Insurance Company of North America, and had no actual knowledge of that fact until after payment had been made by Insurance Company of North America to Coates and Briscoe.”

Thus, while I would prefer that the pro-ration be denied on the theory that it should yield to the right of Mrs. Nicholas to be fully indemnified, there is another basis upon which it should be denied i.e. another policy obtained without the knowledge of the insured does not constitute other insurance. See Hall v. Concordia Fire Ins. Co., 90 Mich. 403, 51 N.W. 524 (1892), St. Paul Fire & Marine Insurance Co. v. Crutchfield, 162 Tex. 586, 350 S.W. 2d 534 (1961) and 5 Appleman, INSURANCE LAW AND PRACTICE § 3909 (1972).

Therefore, I would enter judgment against Fireman’s Fund for the full amount of the policy, the 12% statutory penalty and a $2,500 attorney’s fee.

For the reasons stated, I respectfully dissent.


author: George Rose Smith, Justice.

text:
    DEGA POULTRY COMPANY et al v. Lowell TANNER
    75-250
    533 S.W. 2d 207
    Opinion delivered March 1, 1976

      Alex G. Streett, for appellants.

      Priddy & Hardin, for appellee. -
   George Rose Smith, Justice.

Salmonella paratyphoid is an infection that may be contracted by human beings, chickens, dogs, cats, turtles, and many other animals. It totally disabled the appellee, Lowell Tanner, for about ten months. In this workmen’s compensation case the Commission made an award to Tanner, finding that he contracted the infection in the course of his employment by the appellant Dega Poultry Company. The employer and its insurance carrier argue two points for reversal.

First, it is contended that the claimant’s affliction was neither an accidental injury nor one of the occupational diseases listed in the statute. Ark. Stat. Ann. § 81-1314 (Repl. 1960). Hence, it is said, the claimant is not entitled to compensation, because his disability does not fall within either of two compensable categories: Accidental injuries and occupational diseases.

This argument overlooks the possibility of a third compensable category: Occupational infections. Whether such a third category existed under our original workmen’s compensation act is perhaps open to question, because that statute referred to “such occupational disease or occupational infection as arises naturally out of such employment.” Act 319 of 1939, § 2. Manifestly the legislature might have been using “occupational infection” merely as a synonym for “occupational disease” rather than as a reference to a separate affliction.

The 1948 revision of the statute set the issue at rest. It refers specifically to “occupational diseases as set out in section 14 [which lists compensable occupational diseases] and occupational infections arising out of and in the course of employment.” Ark. Stat. Ann. § 81-1302 (d). Here the reference to occupational infections is meaningless unless it adds something to the enumerated occupational diseases. Of course we must assume that the legislature intended for its words to have meaning.

In the case at bar the Commission’s opinion shows that it understood the distinction between an occupational disease and an occupational infection and that . it found the claimant’s disability to be the result of the latter. Our statute does not define occupational infection — a term that seems to be extremely rare in compensation acts. Thus what is or is not an occupational infection becomes an issue of fact. As we shall see in a moment, there was ample evidence to support the Commission’s finding that salmonella paratyphoid was an occupational infection as to this claimant.

The appellants argue, secondly, that there is no substantial proof that Tanner’s salmonellosis arose out of his employment. We do not agree. To the contrary, the evidence supporting the Commission’s award is so one-sided as to suggest the view that we took in Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W. 2d 263 (1962): “If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award.”

The claimant, Tanner, might be termed a practical veterinarian, for he had worked with licensed veterinarians for some 22 years, had studied the subject in magazines, and had worked for the appellant, Dega Poultry Company, for four years. His duties included inspecting the various Dega flocks of chickens for disease and recommending treatment. He believed that he contracted salmonella paratyphoid from the Akin flock (one of the Dega flocks), because those chickens were sick and had the same symptoms that he developed. The Akin flock was unquestionably afflicted with some disease and had to be sold before maturity.

Dr. Teeter, who treated Tanner, testified that salmonella paratyphoid is a rare disease and so difficult to diagnose that it took his clinic several months to identify Tanner’s malady. The infection is found in the digestive tract of human beings, chickens, and other creatures. The claimant, as part of his work for Dega, stripped out the intestines of chickens in the course of performing post mortem examinations for disease. Dr. Teeter testified positively that Tanner had the disease, “and again I think it likely that he contracted it by working with some chickens that were infected.” That testimony cannot be laid aside as insubstantial.

Dr. Davis, a veterinarian, testified that poultry products are a common source of salmonellosis. (We may note that one form of that infection is called “fowl typhoid.” Webster’s Second New International Dictionary [1934].) This witness said that the germ of salmonella paratyphoid can be isolated without any particular difficulty if the culture is made from the chickens’ fecal matter.

The appellants rely principally upon the testimony of Dr. Fields, another veterinarian. Dr. Fields examined chickens from the afflicted Akin flock on three occasions. He did not find any salmonella organisms. On direct examination he said that such an organism would ordinarily have shown up in his culture type examination, but on cross examination he admitted that he was not looking specifically for salmonella paratyphoid and could have overlooked it. He described it as an enteric organism, which means that it is found within the intestines. The witness testified that he did not perform fecal examinations. The Commission could reasonably have concluded that Dr. Fields’ testimony did not exclude the Akin flock as the source of Tanner’s infection.

According to all the testimony there is a strong probability that Tanner was infected by the Akin flock. But even if he contracted the disease from other chickens, it would still have been in the course of his employment, for he seems to have handled only Dega birds. Even the flock that Tanner was raising on his own farm belonged to Dega. Unless a claimant must prove the source of an infection with absolute certainty — a manifest impossibility — Tanner’s proof amply supports the Commission’s award.

Affirmed.


text:
    Marial Oxford KNIGHTON v. J. T. KNIGHTON
    75-286
    533 S.W. 2d 215
    Opinion delivered March 1, 1976

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Robinson & Robinson, for appellee.
   George Rose Smith, Justice.

The parties to this suit, formerly husband and wife, are residents of Louisiana, where their divorce was granted. The basic question in the case is whether the wife can, after the termination of the Louisiana divorce proceeding, obtain in a separate suit in Arkansas a statutory interest in land owned by the husband in this state. Ark. Stat. Ann. § 34-1214 (Repl. 1962). The chancellor correctly held that the Louisiana divorce decree is a bar to such a suit in Arkansas.

Only a few facts are really pertinent. The couple were married in 1945. In July of 1973 the husband brought suit in Louisiana for separation from bed and board. In August the husband obtained such a decree, and the parties agreed upon a settlement of their Louisiana property, with no mention of the husband’s land in Arkansas. In June of 1974, while the couple were legally separated, the wife brought this suit in Arkansas to enjoin her husband from disposing of his Arkansas land until her marital interest in it should be determined. In November the Louisiana court granted the wife an absolute divorce, a step that appears to be merely formal and perfunctory after the separation from bed and board has continued for more than 12 months. Finally in April of 1975, the trial court entered its decree in the case at bar, denying the wife’s claim to an interest in her former husband’s Arkansas land.

If the parties had been residents of Arkansas and the divorce decree had been rendered here, it cannot be doubted that the wife’s present claim would not have been maintainable. It was held in Gwynn v. Rush, 143 Ark. 4, 219 S.W. 339 (1920), that the statute relied upon by the appellant is a rule of practice to be applied in divorce proceedings. After the divorce the wife cannot invoke it. In Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922), we noted that great confusion and uncertainty would result if the wife could assert such a property right after the divorce had been granted. If she had that right, as we observed, upon the husband’s remarriage both wives would be in a position to claim dower. Hence we declared in Dawson v. Mays, 159 Ark. 331, 252 S.W. 33, 30 A.L.R. 1463 (1923), that “an allowance in lieu of dower must be made in the divorce proceeding, and cannot be made in a subsequent proceeding.”

The appellant argues two grounds for distinguishing this case from our earlier decisions. First, it is suggested that the rule adopted in Gwynn v. Rush, supra, was changed in 1953, when the legislature amended Ark. Stat. Ann. § 34-1214. As we read the amendment, however, it simply expanded the property rights of certain nonresident wives in Arkansas divorce cases. The statute is still, as it was in Gwynn, a rule to be applied in Arkansas divorce proceedings.

Second, the appellant argues that she could not have asserted in the Louisiana case her claim to an interest in her husband’s Arkansas property. That argument is without merit, because even though the Louisiana court could not by its decree directly affect the title to land in Arkansas, it could achieve the same result by requiring the husband to execute a deed to that land. Phillips v. Phillips, 224 Ark. 225, 272 S.W. 2d 433 (1954). As a matter of public policy, in a divorce case the entire dispute about the division of the couple’s property ought to be determined in one proceeding. Not only is comparative fault a proper matter for consideration, but also the division of, for example, the property in Arkansas may be affected by the division of property in other states. (The appellant is mistaken in assuming that she has an absolute right to a life estate in a third of her husband’s property under the Arkansas statute, because that allowance may be reduced even when the wife is the injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W. 2d 781 [1957].) It is apparent that in order for the Arkansas property to be divided fairly in the present proceeding, it would probably be necessary for the original divorce case to be retried in its entirety. Similar useless retrials would be necessary in other states where the couple owned land. Hence strong reasons of policy support the conclusion that all questions at issue in a divorce case should be decided in one proceeding, in one court. That opp- rtunity was available to the appellant in the Louisiana case, ut she elected not to take advantage of it.

Affirmed.