author: Elsijane T. Roy, Justice.

text:
    ARKANSAS POWER & LIGHT Company v. John T. HASKINS
    75-98
    528 S.W. 2d 407
    Opinion delivered October 20, 1975

      House, Holmes & Jewell, for appellant.

      James R. Rhodes, 111, for appellee.
   Elsijane T. Roy, Justice.

Appellee, John Haskins, owned a 39 acre tract of land located approximately ten miles northwest of the city limits of Little Rock, Arkansas. On March 8, 1973, Arkansas Power & Light Company condemned a right-of-way across some of the land owned by the appellee. This right-of-way is a strip of land 180 feet wide and 1004 feet long at the center line as it passes through the Haskins property. The parties stipulated the total property taken was 4.2 acres. Mr. Haskins did not make his residence on the property. He has raised goats and horses on the property, cleared most of the large rocks and cut many of the trees that were originally present when he purchased the land in September of 1964.

The landowner not being satisfied with the compensation offered, this cause came on for trial November 26, 1974. The trial resulted in a jury verdict for the appellee in the amount of $17,000.00.

For reversal appellant relies upon several points. It first contends that the testimony of appellee characterizing the tower as an attractive nuisance was error which was later compounded by the court’s refusal to give an instruction offered by appellant in an effort to mitigate the prejudicial effect of this alleged evidentiary error.

The questioned testimony was as follows:

Q. He also mentioned to you about fencing and asked you whether or not you thought fencing expenditures helped in developing this property to its highest and best use. Do you contemplate any more fencing expense after this, Mr. Haskins?

A. Yes, I do.

Q. Tell the jury why.

A. Well, I think that ... of course, I don’t know what I am going to do to the property now, but if I live and relocate in another area, I think the right-of-way should be fenced. I have a nine year old child and the last time we were out there, they have steps on this huge tower, she and her girlfriend were about Forty feet up the tower, there’s a ladder that they can go right up and I don’t think, you know, I don’t think I want her to bring children out there and play with her on this attractive nuisance that exists on the property, so I plan to fence it, yes, sir.

Appellant’s requested Instruction No. 9 which the court refused follows:

“Wo. 9
“You are instructed that in determining the amount of compensation to which the landowners are entitled in this action, you will not consider any injury or damage which they might sustain in the future by reason of the power company’s negligence in the maintenance and operation of its power line in the future. Should such arise, the landowners will then have a separate cause of action. You will consider only those factors that are real and capable of ascertainment, and will not consider prospective, speculative or imaginary damages in arriving at compensation.”

Appellant places great emphasis on appellee’s alleged misuse of the doctrine of “attractive nuisance.” A less strained interpretation of appellee’s words can be gleaned from the context in which they were presented. The appellee used the words “attractive nuisance” in everyday speech connotation, and it was doubtless applied more as an expression of the allure that such a tower might present to a child, than with an idea to convey to the jury the legal elements comprising the term. Neither the term nor the legal significance of the doctrine of attractive nuisance is at issue here.

From the above testimony it can be seen that appellee’s intent was to show the effect such a structure might have on the market value of his land and the use of the phrase “attractive nuisance” was nothing more than a method of expressing himself. Certainly such a remark would have no prejudicial effect on a jury, which in all probability would attach no more significance to it than any other words indicating the tower would be attractive to children. Appellee had a right to show every element of damage to his property which would affect the market value and this was certainly one of them.

In North Arkansas Western Railway Co. v. Cole, 71 Ark. 38, 70 S.W. 312 (1902) the Court held that increased risk of fire was a factor which could be considered in establishing the market value of the property in question.

In Hicks v. United States for Use of T.V.A., (6th Cir.) 266 F. 2d 515 (1959), proceeding was brought by the Tennessee Valley Authority against the landowner to condemn an easement strip across his farm for erection of steel towers for power lines. The Court held that the apprehension of injuries to person or property is founded on practical experience and may be taken into consideration insofar as the lines and towers affect the market value of the land. The Court held that it is a question for the jury whether a reasonable apprehension of danger from inherent defects and unavoidable accidents may exist, and if so, such an apprehension so far as it depreciates the present market value of the land not taken is an element of incidental damages. The Court states “that from this record with its details as to the structure of the power lines and towers we find that the apprehension is reasonable.”

In the present case there was testimony by the witnesses that the towers extended upward in excess of one hundred feet and that the crossbars or arms span some ninety feet. There were fourteen wires carrying approximately 500,000 volts running the length of the property. Apprehension of danger here is very reasonable. The Court held in Pacific Gas & Electric Company v. W. H. Hunt Estate Company, 49 C. 2d 565, 319 P. 2d 1044 (1957), “[T]hat a line carrying 220,000 volts of electricity is a dangerous instrumentality is a fact too well and commonly known to be disputed. * * * A reasonably foreseeable hazard to be created by stringing a 220,000 volt power line for more than three miles across one’s land is manifestly a proper item to be considered in determining the damage to the property, not only to the land underlying the easement but also to all the land which conceivably might be affected by the hazard. Evidence . . . tending to show what practical uses of the land . . . would give rise to foreseeable hazards because of the construction and operation of the high-voltage line is pertinent to the issue being tried. No reasonably prudent person should be expected to purchase the land here in question without giving heed to the potentials of plaintiff’s power line as well as practical uses of the land beneath and surrounding it, and the possible effects of the hazard upon the uses for which the land was otherwise suitable.” (Citations omitted) (Emphasis supplied).

Here the testimony that the tower had a ladder attached which was close enough to the ground to be reached by children presented a factor which certainly would be considered by parents desiring to purchase property for a home site. To ignore the impact of a transmission line tower in terms of its capacity to entice small visitors is to be blind to common experience. It is unrealistic to expect that a tower wouldn’t pose a concrete and legitimate worry to possible purchasers of appellee’s land, especially if children were involved.

Since the questioned testimony was admissible, giving of Appellant’s Requested Instruction No. 9 would have been misleading and confusing to the jury and the Instruction was properly refused.

Appellant’s next objection was that the trial court erred in “permitting appellee’s value witness, William R. Meeks, Jr., to compare lot sales to the landowner’s 40 acre tract.” In this connection it is to be noted that the appellee’s witness only used the questioned testimony as one element of his evaluation in arriving at his opinion of the market value. This was not the only basis and used in conjunction with other testimony and considerations it was permissible.

In fact, the witness used the sale of the 40 acre subdivision to show a demand for such development. This is indicated by the witness’ testimony that “based on Twenty-Five Hundred Dollars an acre for (136.4 acres) half of which is extremely rough and half is good buildable territory, I considered the basic price of Twenty-Five Hundred Dollars an acre for the subject property.” This 136.4 acre tract was raw acreage similar to appellee’s property, infra. The case at bar is similar to the case of Arkansas State Highway Comm. v. Sargent, 241 Ark. 783, 410 S.W. 2d 381 (1967). In the Sargent case the landowner’s witnesses testified on cross-examination that they had considered the prices at which residential lots in the vicinity of the landowner’s property were selling and mentioned the prices. The Court held that the “testimony . . . was not rendered without any reasonable basis merely because . . . they based figures partially on what lots from properties were selling for in the area.”

In eminent domain proceedings land is evaluated on the basis of the most valuable use to which it can be put, comprehending any use to which it is clearly suited. In Arkansas State Highway Comm. v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495 (1967) we stated that the measure of compensation for condemned land includes its “availability for any use to which it is plainly adapted as well as the most valuable purpose for which it can be used and will bring most in the market.” (Emphasis supplied by the Court). See, in addition, Arkansas State Highway Comm. v. Brewer, 240 Ark. 390, 400 S.W. 2d 276 (1966) and Arkansas State Highway Comm. v. Hughes, 240 Ark. 962, 403 S.W. 2d 80 (1966). Appellant complains that the comparisons drawn by appellee’s witnesses are insupportable because of claimed dissimilarities between the condemned land and the land sales with which it is compared. It is, of course, clear that one method of ascertaining a market value for condemned land is by the expedient of comparable sales, Nichols on Eminent Domain, § 12.1, 3rd Ed. (1962). As we said in Arkansas State Highway Comm. v. Witkowski, 236 Ark. 66, 364 S.W. 2d 309 (1963), “Similarity does not mean identical, however it does require some reasonable resemblance.” We have found to be valuable considerations of “location, size and sale price” and whether the compared lands are “improved, unimproved or developed.” In Arkansas State Highway Comm. v. Sargent, supra, we pointed out that “reasonable latitude must be allowed in evaluating sales and adjusting or compensating for differences in similar lands.” When we consider the testimony available concerning comparisons made between the condemned land and land sold nearby in the light most favorable to appellee, it becomes evident that appellee’s comparisons are in compliance with the standards reflected in Witkowski, supra. The pattern of land development in close proximity to appellee’s land indicates that appellee was not unreasonable in asserting that his land would be best suited to residential development. The land in question is accessible to highways, a water system and is close by other lands which have already been devoted to residential development. Topographically appellee’s land compares favorably to neighboring lands upon which houses have already been built. Mr. Meeks’ comparisons weren’t confined merely to lands which had been subdivided but included also property sold in bulk, and we conclude that a sufficient showing of similarity has been made between appellee’s land and those tracts to which he compared it. Furthermore, the $17,000.00 award by the jury appears reasonable in light of the above factors and the admissible testimony which varied from a low of $5,000.00 to a high of $40,000.00.

Appellant’s last point is that “The Trial Court Erred in Refusing to Give Plaintiff’s (Appellant’s) Requested Instructions No. 5 and 8.” The questioned instructions read as follows:

No. 5

“You are instructed that in acquiring the right-of-way across the land of the defendants, the power company does not acquire the fee simple title to said lands but only acquires the right to use the lands necessary for the erection and maintenance of its electrical lines and to erect and maintain its lines thereon and the right to enter upon said lands at all times and in reasonable and necessary manner for the erection and maintenance of its lines. The landowner retains the ownership and right to use said lands at all times and for all reasonable purposes not inconsistent with the rights and uses of the power company.”

No. 8

“In determining whether or not the lands outside the right-of-way have been diminished in value by reason of the taking of the right-of-way, you should consider the fact that defendants have the right to cultivate or otherwise use said right-of-way so long as such use does not interfere with the operation of plaintiff’s electrical facilities.”

This last contention of appfellant is also without merit. To have given the requested instructions would have been error. In Ark-La Gas Co. v. Burkley, 242 Ark. 662, 416 S.W. 263 (1967), the Court held the fact that the landowner was given permissive use of the right-of-way after construction of the pipe line could not be used to reduce the amount allowed as compensation for the taking. In Burkley the Court stated:

“In Baucum v. Arkansas Power & Light Company, Supra, a case involving an electric transmission line, this Court, quoting with approval Kentucky Tennessee Light & Power Company v. Beard, 152 Tenn. 348, 277 S.W. 889, held:
“ ‘Where an electric light and power company, in condemnation proceedings, acquired a permanent easement across the land of another, it became liable for the full value of the right-of-way as if the fee had been taken. And the fact that the owner was given the permissive use of the right-of-way could not be considered in reduction of the sum to be allowed as compensation.’
* * *
“The rule of the Baucum case was also followed in Arkansas Power & Light Company v. Morris, 221 Ark. 576, 254 S.W. 2d 684, another electric transmission line case, and in State ex rel Publicity and Parks Commission v. Earl, 233 Ark. 338, 345 S.W. 2d 20, a case involving easements across lands adjacent to an airport.”

In Patterson Orchard Co. v. Southwest Ark. Utilities Corp., 179 Ark. 1029, 18 S.W. 2d 1028 (1929), the appellee (condemnor) contended that it should not be charged with the full value of the land actually taken since the landowner has the right to enter upon the same at all reasonable times and for all reasonable purposes not inconsistent or in interference with the rights of the appellee. The Court stated that the landowner is entitled to the full value of the land taken and such damage to the remainder of the orchard as might be sustained by reason of the erection of the trensmission line across same.

Finding no error the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: LeRoy Autrey, Special Justice.

license: Public Domain

text:
    Joseph H. WESTON v. STATE of Arkansas
    CR 75-49
    528 S.W. 2d 412
    Opinion delivered October 20, 1975

      Cearley & Gitchel, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   LeRoy Autrey, Special Justice.

Joseph H. Weston, the editor and publisher of the Sharp Citizen, a weekly newspaper of Cave City, has appealed his conviction in the Clay County Circuit Court of the crime of criminal libel as defined in Section 41-2401 et. seq., Arkansas Statutes. The information under which Weston was convicted alleged that he had on November 30, 1973, published in the Sharp Citizen “a false, malicious and defamatory libel” which “tended to impeach the honesty, integrity, veracity and reputation of . . . Liddell Jones,” the Sheriff of Clay County. The information charged and the undisputed evidence showed that the offending article in the Sharp Citizen was headlined as follows:

“SHARP CITIZEN MAKES A MISTAKE IN REPORTING STORY OF CORNING AND DISCOVERS THAT NARCOTICS RACKET FLOURISHES IN CLAY COUNTY AND CORNING UNDER DIRECTION OF SHERIFF LIDDELL JONES, AN APPOINTEE OF GOVERNOR DALE BUMPERS.”

The article below this headline included the following statement:

“In the meantime, however, we also discovered that law enforcement in Clay County has dropped to a low level again under the direction of the present sheriff, Liddell Jones, appointee of Governor Dale Bumpers who took office following the passing away of Sheriff Pond. It was Sheriff Liddell Jones and his deputies who made the threats of violence to witnesses of the death of Street Shaw.”

Mary D. Shaw, the widow of Street Shaw, deceased, testified that shortly after her husband had been shot and killed on October 11, 1973, Weston had come to her house for an interview to find out how her husband had been killed. Mrs. Shaw testified that she gave Weston the information which is set forth in the above set out newspaper headline and article. She said that she told Weston that William Donald, who was in jail wher her husband was killed, told her that he could get dope from Sheriff Jones.

Sheriff Jones had served as Sheriff of Clay County for about 15 months, succeeding Sheriff Bill Pond who had been killed in an accident. He testified that he had made the complaint against Weston; that the offending headline and the story appearing in the Sharp Citizen were false; that since he had been sheriff he had made arrests and pursued prosecutions in 20 to 30 drug and narcotics violations; and that he had been subjected to some degree of ridicule, scorn and public hatred from the offending headline and article in the Sharp Citizen.

The trial court jury instructions included the usual instructions in criminal prosecutions and the following:

COURT’S INSTRUCTION NO. 3
“It is unlawful, a crime, and a felony for any person to maliciously defame, either by writing, printing, or by signs or pictures or the like tending to blacken the memory of one who is dead, or impeach the honesty, integrity, veracity, virtue or reputation or to publish the natural defects of one who is living and thereby expose him to hatred, contempt and ridicule as set out in Section 41-2401 of the Arkansas Statutes. ”
COURT’S INSTRUCTION NO. 5
“In all prosecutions for libel the truth may be given in evidence in justification thereof.”

The Court refused the below set out instructions requested by the appellant:

REQUESTED INSTRUCTION NO. 1
“You are instructed that there are situations in which the law protects the author of a defamatory statement from prosecution for Criminal Libel. Where this protection is afforded a privilege is said to exist and even though the statement made be untrue, the author may not be subjected to criminal prosecution unless the statement was published with actual knowledge of its falsity or with reckless disregard of whether it was false or not. One area in which such a privilege exists is the area of comment upon matters of public concern or criticism of the official conduct of public officials.
“The Constitutional guaranty of freedom of speech and of the press, contained in the First Amendment, prohibits the imposing of criminal sanctions for truthful criticism of public officials, and criminal liability may be imposed for false defamatory criticism of the official conduct of a public official only if the statement is made with express malice, which is defined as actual knowledge that the statement is false, or a reckless disregard as to whether or not it is true or false.”
REQUESTED INSTRUCTION NO. 2
“When we speak of express malice in criminal libel case the term has a very distinct meaning apart from its ordinary use. A statement made with express malice is one made with actual knowledge that it is false or with reckless disregard of whether it is false or not. Therefore, even if you find that the statement was false and was made out of hatred you must acquit the defendant unless you also find beyond a reasonable doubt that the defendant either knew the statement to be false or published it with a reckless disregard of whether it was false or not. To find the statement was vehement, caustic, or unpleasantly sharp is not enough.”

The jury’s verdict found the appellant guilty and fixed his punishment “at a fine of $4,000.00 and/or imprisonment in the penitentiary for a period of three months.” The judgment of the Court provided that the appellant should “be fined, in accordance with the verdict returned by the jury, $4,-000.00, and that he be imprisoned in the state penitentiary for a period of three months.”

The appellant contends that his conviction should be dismissed on the grounds that Arkansas Statutes, Section 41-2401 et. seq. , is violative of the rights guaranteed under the First and Fourteenth Amendments to the Constitution of the United States in that the statute (a) does not require that a statement alleged to be libelous be false, (b) does not require that the allegedly libelous statement be made with actual malice when the statement refers to a public official or a matter of public concern, and (c) is so vague, general and indefinite in its terms that it fails to apprise one of the conduct proscribed. Appellant also contends that the Trial Court erred in refusing the appellant’s requested instructions 1 and 2 above set out and that the Trial Court erred in entering judgment and pronouncing sentence on the jury’s verdict.

The appellee contends (a) that the appellant’s requested instructions 1 and 2 correctly states the constitutional limitation on a prosecution for criminal libel; (b) that the Trial Court’s refusal to give instructions requested by the appellant resulted in the statute being unconstitutionally applied to the appellant; and (c) that this case should be reversed and remanded for a retrial. The appellee contends that “a judicial restriction of the statutory scheme in compliance with the holdings of the United States Supreme Court will avoid the necessity of striking the statute in question as unconstitutional, and then the statute will have only been unconstitutionally applied to the appellant.”

Appellant’s requested instructions 1 and 2 above set out follow the rule established by the U. S. Supreme Court in Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209, 217 (1964). There the Court held that the Louisiana defamation statute was invalid under the First and Fourteenth Amendments to the Constitution of the United States. In so holding the Court applied the rule laid down in a civil libel case brought by a public official, New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). In Garrison, the U.S. Supreme Court held that the Louisiana defamation statute was unconstitutional because it directed punishment for true statements made with “actual malice,” contrary to the rule laid down in New York Times, and in addition:

“The statute is also unconstitutional as interpreted to cover false statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their falsity or in reckless disregard of whether they are true or false. But the Louisiana statute punishes false statements without regard to that test if made with ill-will; even if ill-will is not established, a false statement concerning public officials can be punished if not made in the reasonable belief of its truth.”

Like the Louisiana defamation statute in Garrison, Arkansas Statutes, Section 41-2401 et. seq., fails to prohibit punishment for truthful criticism. Section 41-2403, Arkansas Statutes, provides that truth “may be given in evidence in justification,” but this falls short of the New York Times rule which “absolutely prohibits punishment for truthful criticism.” Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209, 217. Under the rule laid down in Garrison, truth is a defense even when the offending publication is not made “with good motives and for justifiable ends” as provided in Article 2, Section 6, of the Arkansas Constitution.

Also, like the Louisiana defamation statute in Garrison, the Arkansas criminal libel statute fails to prohibit punishment for false statements regarding public officials, “unless made with knowledge of their falsity or in reckless disregard of whether they are true or false.” Nowhere in the Arkansas criminal libel statute is there any exception for criticism of a public official.

The appellee argues that this Court may limit the application of the Arkansas libel statute so that it meets the requirements of the First and Fourteenth Amendments to the U.S. Constitution as laid down by the U.S. Supreme Court in New York Times and Garrison, but this Court must reject the appellee’s argument. While this Court must strive to uphold the constitutionality of a statute, it may riot read words into a statute to save its constitutionality. This rule was well expressed in Board of Commissioners of Red River Bridge District v. Wood et al, 183 Ark. 1082, 40 S.W. 2d 435, 438 (1931) as follows:

“The rule requiring courts to uphold the statute, if there is any doubt as to whether the power of the Legislature exists under the Constitution, does not authorize the court to read words into the statute even to save its constitutionality. If the statute does not violate the Constitution, or if there is any doubt about whether it does or not, it is the duty of the court to uphold the statute, but, if there is no doubt about the statute being in conflict with the Constitution, then it is the duty of the court to uphold the Constitution and declare the act void, and it is only in cases where the language of the act will bear two constructions that the court is justified in adopting a construction that will sustain rather than one which will defeat it.”

Clearly this Court has no authority to legislate or to construe a statute to mean anything other than what it says, if the statute is plain and unambiguous. Burrell v. State, 203 Ark. 1124, 160 S.W. 2d 218 (1942); Johnson v. Lowman, 193 Ark. 8, 97 S.W. 2d 86 (1936). The language of the statute here involved is clear and unambiguous, and this Court has no authority to amend the statute to conform to the rules laid down by the U.S. Supreme Court in New York Times and Garrison.

In Commonwealth v. Armao, 286 A. 2d 626, 632 (1972) the Supreme Court of Pennsylvania held that the Commonwealth’s criminal libel statute was unconstitutional because (1) the statutory language made no provision for truth being an absolute defense and (2) no recognition was given in the statute to the reckless disregard and knowing falsity standards mandated by the U.S. Supreme Court in New York Times and Garrison. In rejecting the argument of the Commonwealth that the Court should construe this criminal libel statute to make it meet the requirements of the First and Fourteenth Amendments to the U.S. Constitution, the Court there stated:

“The Commonwealth urges us to in effect re-draft the criminal libel statutes in accordance with First Amendment requirements. To accede to this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation. See State Board of Chiropractic Examiner v. Life Fellowship of Pennsylvania, 441 Pa. 293, 300, 272 A. 2d 478, 482 (1971); Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A. 2d 664, 667 (1964). Nor can we perceive any possible means of merely severing out the invalid portions of the statutes, for not only must the legislative body have intended the statute or section to be separable, but also the act must be capable of separation in fact. See Saulsbury v. Bethlehem Steel Co., supra, at 320-321, 196 A. 2d at 666-667.”

The above set out jury instructions numbered 3 and 5 given by the Trial Court correctly stated the statutory law, but the Arkansas criminal libel statute is unconstitutional under the rulings of the U.S. Supreme Court in New York Times v. Sullivan, supra, and Garrison v. Louisiana, supra.

Reversed and dismissed.

Fogleman, J., not participating.

        Arkansas Statutes, “Section 41-2401 Libel Defined. A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue, or reputation, or to publish the natural defects, of one who is living, and thereby expose him to public hatred, contempt and ridicule.
      “Section 41-2402 Penalty for Libel. Every person, whether writer, printer or publisher, convicted of the crime of libel, shall be fined in any sum not exceeding five thousand dollars (15,000.00) and may also be imprisoned, not exceeding one (1) year at the discretion of the jury who shall pass on the case; and when any such case shall be decided without the intervention of a jury, then at the discretion of the Court.
      “Section 41-2403 Truth as justification for libel. In all prosecutions for libel under the provisions of the prepeding sections, the truth thereof may be given in evidence in justification.”

      Article 2, Section 6, of the Arkansas Constitution provides:
      “The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such rights. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.”


author: Carleton Harris, Chief Justice.

text:
    Harley B. LEWIS v. Coolidge CONLEE, Mayor, and CITY COUNCIL of Forrest City, Arkansas
    75-99
    529 S.W. 2d 132
    Opinion delivered October 27, 1975
    [Rehearing denied November 24, 1975.]

      Killough & Ford, for appellant.

      Knox Kinney, for appellee.
   Carleton Harris, Chief Justice.

On August 17, 1948, the City Council of Forrest City passed Ordinance No. 611, entitled, “An Ordinance fixing the time for the filing of referendum petitions as provided for by Amendment No. 7 to the Constitution of the State of Arkansas, and for regulating the procedure thereon.” Pertinent provisions of the Ordinance read as follows:

“SECTION 1. All referendum petitions under Amendment No. 7 to the Constitution of the State of Arkansas must be filed with the City Clerk within thirty days after the passage of the measure upon which the referendum is sought. ***
“SECTION 3. If the City Council finds that such petition is signed by the requisite number of petitioners, it shall order a special election to determine by a vote of the qualified electors whether the ordinance shall stand or be revoked. The date for such election shall be not less than ten days after the order therefor has been made by the Council, and said election shall be had and conducted as general municipal elections held in the City of Forrest City.”

Further provisions require that any ordinance referred to the people and defeated shall be expunged from City Council records. An emergency clause is also attached.

On October 4, 1949, the City Council passed Ordinance No. 634, entitled, “An Ordinance to create a Board of Civil Service Commissioners of the City of Forrest City, Arkansas, to prescribe the manner of conducting trials by the Civil Service Commission, providing a right of appeal, and for other purposes.”

On January 7, 1975, the Council again passed an ordinance, being Ordinance No. 1340, entitled, “An Ordinance to repeal the Civil Service Commission; to provide for appointment of the Chief of Police and Fire Chief, to provide redress of grievances; and for other purposes.”

Appellant, Harley B. Lewis, Secretary of the Civil Service Commission of Forrest City, along with other qualified electors of the City, prepared, circulated, and filed a petition protesting the passage of the Ordinance and petitioning that the Ordinance be referred to the electors of the City as provided by law. This petition was filed with the City Clerk on January 20, 1975, who found that the petition was sufficient, a requisite number of petitioners having signed, for referral. Thereafter, at its regularly scheduled meeting on February 4, 1975, the Council, recognizing the sufficiency of the petitions, passed Resolution No. 321, referring Ordinance No. 1340 to the next regular general election to be held on November 2, 1976.

Thereafter, Lewis, as Secretary of the Civil Service Commission, instituted suit in the Circuit Court of St. Francis County, seeking a writ of mandamus, and following a show cause order to the Council, a hearing was conducted on February 27, 1975, and the court entered its order dismissing the complaint with prejudice. From this judgment, appellant brings this appeal. For reversal, two points are relied upon to the effect that the court erred in holding that a writ of mandamus will not issue under the circumstances, and that the court erred in sustaining the appellee’s arbitrary, capricious, and unreasonable application of the intent and purpose of Amendment No. 7 to the Constitution of the State of Arkansas by setting the election date twenty-one months from the date of the order. Since these are related points, we discuss them together.

Ordinance No. 1340 first repeals Ordinance No. 634, which sets up the Civil Service Commission and thereafter provides that the Chief of Police and Fire Chief shall be appointed by the Mayor, subject to approval by the City Council, and that these police and fire officials, respectively, have sole authority to establish ranks within the departments, and hire and fire personnel therein; that any person aggrieved shall have the right to request a hearing before the City Council, whereupon the Council shall forthwith set a hearing upon said matter at a subsequent meeting of the Council.

In dismissing the complaint, the trial court made, inter alia, the following findings:

“6. That Amendment No. 7 of the Constitution of the State of Arkansas provides that if the referendum power is invoked as to any measure passed by a city or town council, such city or town council may order election upon said referendum at either regular or special election; that Ordinance No. 611 of the City of Forrest City provides that the date for such election be not less than ten (10) days after the order therefor has been made by the council; and the order therefor in this case has been made by the Council for a special date more than ten days after such order.
“7. That the specific date for setting of such election is a matter of legislative discretion, which has been exercised by the City Council in this case; a Writ of Mandamus will not issue to control a public officer or legislative body in a discretionary act.”

Pertinent provisions of Amendment No. 7 provide:

“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. ***
“All measures initiated by the people, whether for the State, county, city or town, shall be submitted only at the regular elections, either State, congressional or municipal, but referendum petitions may be referred to the people at special elections to be called by the proper official, and such special elections shall be called when fifteen per cent of the legal voters shall petition for such special election, and if the referendum is invoked as to any measure passed by a city or town council, such city or town council may order a special élection.”

We are of the opinion that the court erred in not granting the petition for writ of mandamus. It is very true, as pointed out by the learned circuit judge, that the matter of setting a date for the election is normally a matter of legislative discretion — but only to a degree. In the present instance, it would appear that the date set would, in effect, nullify the intent of Amendment No. 7, and the intent of Ordinance No. 611, which was passed by the Council, pursuant to the provisions of Amendment No. 7.

Appellees depend upon the fact that Ordinance No. 611, though providing that a special election shall not be less than ten days after the order therefor has been made by the Council, makes no requirement that such election shall be set at any particular time thereafter. This is true, but we are confident that the electors, in passing Amendment No. 7, had in mind that controversial legislation should be acted upon by the voters within a reasonable time. In the case of Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W. 2d 280, this court succinctly stated our views on Amendment No. 7, as follows:

“We are firmly committed to a liberal construction of constitutional Amendment No. 7, bearing in mind the purpose of its adoption and the object it sought to accomplish. This amendment provides a necessary and potent protection against ill-advised, oppressive or improvident legislative functions, and actions of the electors thereunder, in attempting to obtain relief, should not be thwarted by strict or technical construction. [Our emphasis.] We are neither authorized nor remotely inclined to disturb the proper application of this wholesome constitutional reservation of power to the people.”

Here, to say that the Council acted properly in setting the referendum election twenty-one months after the request for a referendum, would be to say that the Council could thwart, by strict or technical construction of Amendment No. 7, the relief sought by appellants. Actually, if the Council has the authority to set an election twenty-one months away (which technically speaking, might be true), it has the authority to set such election three or more years away. Can it really be said that the date set by the Council is within the spirit of the framers of Amendment No. 7? Was it not their intent to provide a remedy for dissatisfied citizens within an appropriate time period? We think these questions can only be answered in the affirmative, but the action of the City Council does not afford affirmative relief._

Let it be borne in mind that Ordinance No. 611, passed back in 1948, was still in effect at the time the petitions were circulated, and certainly appellants had every right to rely on that Ordinance in seeking a referendum. Appellees argue that the City Council had full authority to repeal Ordinance No. 611 and though they say it was complied with, it is also implied in their brief that this Ordinance may well have been repealed by Resolution No. 321 which set the referendum election at the time of the next general election on November 2, 1976. Such an argument can be of no aid to appellees for several reasons, but one reason is amply sufficient. The Resolution was not even passed until after appellants, in reliance upon Ordinance No. 611, had filed their petition. In other words, when the petition was filed, unquestionably Ordinance No. 611 was the pertinent law to follow. Certainly, when one is acting in good faith in following the current city statute, he is not to be penalized. For that matter, the trial court recognized the validity of the Ordinance which is reflected from the court’s findings, already quoted. And, it will be observed that the decision was rendered on the basis of the fact that the Council set the election more than ten days after its order (as provided by 611), and the matter of setting the date (in the trial court’s opinion) was a matter of legislative discretion.

The principal argument advanced by appellees is that mandamus will not lie to control a public official in a discretionary act. However, as already pointed out, such discretion is not unlimited, and cannot be used to, in effect, do away with the right granted by Amendment No. 7. This court so held in the case of Kirkwood v. Carter, County Judge, 252 Ark. 1124, 482 S.W. 2d 608, where we said that'the purpose of a writ of mandamus is not to establish legal rights or measure the discretion of public officials, but to enforce a right after it is already established, or to enforce the performance of a duty. There, the question concerned the duty of the County Board of Election Commissioners to determine the number of voting precincts in the county where as many as 300 votes were cast, and to start and continue good faith negotiations for the purchase of voting machines. We said:

“It is definitely suggested by the overall record in this case, that the Faulkner County Board of Election Commissioners simply did not agree with the electorate of Faulkner County as to the wisdom of spending tax money for voting machines. The record indicates that instead of "proceeding in an orderly and businesslike manner toward finding ways and means of carrying out the duties of their office under the law and the mandate of the people, the Commissioners did just the opposite by seeking ways and means of avoiding the performances of their duties under Act 465 and under the mandate of the people of Faulkner County. ***
The trial court simply ordered the members of the Board of Election Commissioners to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased. There were no duties to be performed by the county judge in connection with the purchase of the voting machines when the petition for the writ of mandamus was filed in this case, and the hearing was conducted thereon, so the trial court was correct in sustaining the demurrer. We are of the opinion that the trial court’s order directing the members of the Board of Election Commissioners to initiate and file a plan for the purchase of voting machines means, and should have recited, that they shall do so forthwith.” [Our emphasis.]

We held the writ proper but added that the Commissioners [should] “start the performance of their duties thereunder forthwith, and continue such performance in good faith until their statutory duties are fully performed.”

It is apparent that in Kirkwood this court considered that the Board was “dragging its feet” and that it was seeking ways and means of avoiding performance of its duties. The setting of a date for the referendum twenty-one months away is so unusual as to suggest that the Council simply desired to delay a vote by the people on the question of whether the Forrest City Civil Service Commission should be abolished. It is our view that the affirmance of this judgment would completely frustrate the intent of the people in passing Amendment No. 7, as it applies to referendums. Our statement in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975), is here entirely apropos, “Statutes enacted for the public benefit should be interpreted most favorably to the public.”

For the reasons herein set forth, the judgment is reversed and the cause remanded with directions to the St. Francis County Circuit Court (First Judicial Circuit) to issue its writ directing the City Council of Forrest City to set the referendum election, involved herein, within a reasonably prompt period of time.

It is so ordered.

      The question of whether a special election can be set at the time of the general election is not at issue in this case, the only question being the time period involved.


author: George Rose Smith, Justice. John A. Fogleman, Justice.

text:
    Thelma HARVEY v. C. C. CASTLEBERRY
    75-100
    529 S.W. 2d 324
    Opinion delivered October 27, 1975
    [Rehearing denied December 8, 1975.]

      Erwin, Bowie & Boyce, for appellant.

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

The appellant brought this action for personal injuries sustained when she was struck by the appellee’s car, which rolled forward from a parked position. The verdict was for the defendant. The only argument for reversal is that the trial court unduly restricted the appellant’s attorney in his voir dire examination of the jury panel about their being policyholders in a mutual insurance company writing automobile liability insurance.

Counsel first asked several questions about the jurors’ being shareholders, directors, officers, or employees of any company writing automobile liability insurance. Counsel then, in chambers, sought the court’s permission to ask this question: “Are any of you policyholders in any mutual insurance company writing automobile liability insurance policies?” The court ruled that the proposed question would not be proper.

The appellant’s brief begins: “It was a known fact to both parties and their counsel that the appellee’s automobile was insured by a mutual liability carrier whose adjuster, Keith Hulett, had made an investigation of the occurrence.” That it may have been a fact known to counsel in the trial court is immaterial here, unless the fact appears in the record. Here it does not. Counsel for the appellee relies upon the omission, as he is entitled to do; for we do not reverse the trial judge on the basis of facts outside the record.

All that the record apparently contains — and certainly all that is shown by the abstracts — is a reference to Keith Hulett as “an adjuster for the Farm Bureau.” There is no showing in the record either that the Farm Bureau is a mutual insurance company or that the trial judge knew it to be one. It is not argued that the question would have been proper even if no insurance of any kind had been involved. See Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16 (1956). Nor need we speculate about the possibility that the trial judge might have taken judicial notice of the Farm Bureau’s status, for no such request was made in the trial court (or here).

Inasmuch as the judgment must be affirmed, we may without embarrassment to counsel mention once more the basic requirements of Supreme Court Rule 9. The rule states that the abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of “only such material parts of the pleadings, proceedings, facts, documents, and other materials in the record as are necessary to an understanding of all questions presented to this court for decision.” What the abstracter should strive for is to present a condensation of all the record that is necessary to an understanding of the case, but nothing more.

Here the appellant has done almost the reverse. The only question at issue is the propriety of the proposed question on voir dire, but the facts pertinent to that issue are not even touched upon in the appellant’s abstract. (The appellee supplied the deficiency.) Yet the appellant did abstract testimony about the accident itself, although those facts are irrelevant here. Thus the court has been required to read matter not pertinent to the appeal but has not been furnished with an abstract of the really material part of the record.

Affirmed.

Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice.

I do not agree that appellant’s right to question the jurors about their connections with mutual insurance companies writing liability insurance depended upon the status of the particular insurance carrier for appellee as a mutual company. Under Arkansas law, mutual companies may qualify to write casualty insurance. Ark. Stat. Ann. § 66-4210 (Repl. 1966). Each policy holder is a member of the insurer with all rights and obligations of membership. Ark. Stat. Ann. § 66-4216 (Repl. 1966). This makes the policyholder occupy virtually the same status as a stockholder in an insurance corporation. See Ark. Stat. Ann. §§ 66-4217, 4218, 422lj 4222 (Repl. 1966). Even though the member’s liability for the obligations of the mutual company are limited, he still may have pro rata contingent liability for the discharge of its obligations, and this may be as much as six times the annual premium on his policy. Ark. Stat. Ann. §§ 66-4205 (f), 4223, 4224, 4226, 4227 (Repl. 1966). The member is entitled to dividends based upon net realized savings and net realized earnings. Ark. Stat. Ann. § 66-4231 (Repl. 1966). The member may be assessed to make good a deficiency arising when the company’s assets are less than its liabilities plus the minimum surplus it is required to maintain. Ark. Stat. Ann. § 66-4241, 4242 (Repl. 1966). Thus, there is at least some reason for a member of a mutual casualty insurance company to have a bias or prejudice against liability claims and to be extremely conservative in awarding damages. For these reasons, a personal injury claimant is well advised to exercise a peremptory challenge of any prospective juror who is a member of such a company. Of course, this thought is not original with me. It was well expressed more than 70 years ago by the Supreme Court of Iowa in Foley v. Cudahy Packing Co., 93 N.W. 284, 119 Iowa 246 (1903):

*** It is easy to understand that the interests of such companies lie on the defensive side of cases such as the one at bar. And if the defendant happen to be insured in some one or more of such companies, the interest becomes a direct and active one. That a defendant in an action of this character may be insured in some such company is immaterial of itself. But it is manifest that a plaintiff may not desire to have the jury which is to try his case made up, in whole or in part, of the agents or employes of such an insurance company. The fact of such employment would not constitute a ground of challenge for cause, but, as parties and their counsel cannot be expected to know personally every juror w'ho may be called into the box, an examination sufficiently broad should be permitted to enable a party to determine upon his peremptory challenges. “It is the general and well-established practice to allow considerable latitude in the examination of persons called to act as jurors, hot only to facilitate the discovery of grounds for cause, but to enable the parties interested to discover any peculiarity or conduct, association, character or opinion, or any predilection, of the person under examination, or other circumstance which, in the opinion of the examiner might influence the person as a juror, and affect his verdict.” State v. Dooley, 89 Iowa 584, 57 N.W. 414. ***

The record shows that appellant had been permitted to ask whether any of the prospective jurors was an officer, director, stockholder or employee of any insurance company writing automobile liability insurance or in anywise interested in an insurance company. The desired information could not possibly have been elicited by this inquiry. A mutual policyholder would not affirmatively answer such a question and appellant should have been permitted to further pursue the inquiry.

At the outset I should say that there is not the least intimation that appellant’s attorney was not acting in the utmost good faith. Permission to ask the question was sought by this attorney at benchside out of the hearing of the jury. I should also say that I do not view appellant’s argument to be so narrowly confined as it appears to the majority. The point relied upon is:

I

THE COURT ERRED IN REFUSING TO ALLOW APPELLANT’S COUNSEL TO QUESTION THE PROSPECTIVE JURORS ON VOIR DIRE ABOUT THEIR BEING POLICYHOLDERS IN ANY MUTUAL INSURANCE COMPANY WRITING AUTOMOBILE LIABILITY INSURANCE POLICIES.

In support of his argument, appellant cites 47 Am. Jur. 2d 785, Jury § 195, pertaining to the importance of knowledge by litigants of all relevant and material matters that might bear on possible disqualification essential to a fair and intelligent exercise of the right to challenge for cause or peremptorily and Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16, where a question approved contained an inquiry similar to that appellant sought to ask.

In speaking of the scope of examination on voir dire this court has spoken clearly in Missouri Pacific Transportation Co. v. Johnson, 197 Ark. 1129, 126 S.W. 2d 931:

What are the further questions that may be asked by the court, or by the attorneys in the case? The answer is that they include any pertinent inquiry respectfully addressed through which qualification may be determined, or by which counsel, regardless of the juror’s qualification, may secure information upon which to predicate peremptory challenge. Discretion of the court, to which reference is made in the last sentence of § 16 of the initiated Act, goes to the proposition of curbing improper questioning. It does not invest trial courts with an arbitrary, all-powerful authority to transform discretion into prohibition; nor does it require that in the process of ascertaining the desired facts counsel must utilize the court as a conduit through which communication must be megaphoned to jurymen by way of the dais.

See also, Gurley v. State, 164 Ark. 397, 262 S.W. 636. We have also said in Clark v. State, 154 Ark. 592, 243 S.W. 868, where counsel sought to inquire whether proposed jurors were members of the Ku Klux Klan:

*** It does not follow, however, from the fact that the information to be elicited might not constitute disqualifying bias that appellant was not entitled to propound the inquiry. On the contrary, we think that he was entitled to make the inquiry for the purpose of determining in what he should exercise a peremptory challenge allowed by the statute. ***
The right of peremptory challenge is just as important and valuable to an accused person as the right to challenge for cause, and he is entitled to the same latitude in the examination of a proposed juror for either purpose. This examination must, however, be conducted in good faith, and is subject to the discretion of the trial judge. ***

We have said that it was proper to inquire into the attitude of a particular juror and his connection with a resolution adopted by his church commending county and court officials in their enforcement of criminal laws as a basis for intelligent exercise of peremptory challenges in a case in which the defendant was charged with operating a gambling house. Sorrentino v. State, 214 Ark. 115, 214 S.W. 2d 517. In Corley v. State, 162 Ark. 178, 257 S.W. 750, we said that a trial judge properly permitted one charged with selling intoxicating liquors to inquire into contributions made by prospective jurors to a law and order league, and into the aversions of certain veniremen to the crime of selling intoxicating liquors “because it was essential for the accused to be in possession of this information in order that he might intelligently exercise the peremptory challenges which the law gives him.”

Counsel here avoided naming any particular company in framing his question. Thus, the prohibitions emphasized in DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370, have no application. That case itself supports the inquiry appellant wanted to make. First, it was there pointed out that, in Williams v. Cantwell, 114 Ark. 542, 170 S.W. 250, the court, in disapproving the actions of plaintiff’s counsel in statements made and questions propounded to prospective jurors, because they unnecessarily advised the jurors that the defendant was insured against liability by a named company and would not be required to pay any judgment against him, had stated how plaintiff’s counsel might have conducted the inquiry, by saying:

*** Information as to any juror’s connection with any insurance company could have been obtained in a less dramatic manner by asking each of the jurors if he represented or was connected with any casualty company insuring employers against liability, or if he was connected with any insurance company, or any other proper question which might have tended to disclose whether any juror had any bias or prejudice likely to influence his verdict one way or the other; and, had any juror answered that he was so connected with any such insurance company, it would not have been improper to have permitted a more minute inquiry of such juror. ***

And then, this court, in an effort to reduce uncertainty and avoid needless appellate review in such matters, announced its preference for the simplest and fairest procedure in these words:

*** Questions about the veniremen’s insurance connections should refer only to insurance companies in general; a particular company should not be named when the information wanted can just as well be obtained by the use of general questions.

I submit that, if a prospective juror actually has an interest in an insurance company insuring a particular defendant against loss in a particular case, he is subject to a proper challenge for cause, even though the insurance company is not a party to the suit, because it has a pecuniary interest in the outcome of the case. Murphy v. Cole, 338 Mo. 13, 88 S.W. 2d 1023, 103 ALR 505 (1936) and Annot. p. 511; Annot., 56 ALR 1418, 1460, 1464, 1477 (1928).

The basis for a finding of incompetency for bias and prejudice was stated long ago. It appears in Collins v. State, 102 Ark. 180, 143 S.W. 1075, as follows:

*** In order for a juror to be competent, he should be wholly indifferent both as to the person who is tried and the case for which he is tried. He must be free from bias or prejudice or from any fixed opinion as to the merits of the case so that he will act with entire impartiality in deciding the questions of fact and in arriving at his verdict. The bias or prejudice which will render a juror incompetent to sit in a case may arise from various causes, and depends largely upon the facts and circumstances of each case. ***

A financial interest of a juror in one of the parties is certainly disqualifying. In Caldarera v. Giles, 235 Ark. 418, 360 S.W. 2d 767, we held that the endorser of a note on a bank loan made to a plaintiff to pay a debt of the plaintiff to a corporation of which the juror was a stockholder, was presumed as a matter of law to be under a disqualifying bias. The precedent cited was Gershner v. Scott-Mayer Comm. Co., 93 Ark. 301, 124 S.W. 772, where we indicated, if we did not actually hold, that an officer or stockholder of a corporation to which a party to the litigation was indebted was presumed to be under a disqualifying bias. The Chief Justice, concurring in Caldarera, appropriately said:

*** To permit one to serve on a jury, where it appears from the record that he could be financially interested in the outcome of the case, would, in my opinion, stagger the confidence of the public in our juries, and, in fact, strike at the very heart of the jury system.

My view of the matter is definitely supported by the overwhelming weight of authority. No better expression could be given than that appearing at 47 Am. Jur. 2d 903-4, Jury § 333:

*** The broad general rule is that provided that counsel acts in good faith, he may, in one form or another, question prospective jurors on their voir dire respecting their interest in or connection with liability insurance companies. It is obvious that if the plaintiff is denied absolutely the right to interrogate jurors with reference to their possible connection with or interest in insurance companies, his means of ascertaining whether causes for challenge exist, or whether it is wise and expedient to exercise his right of peremptory challenge, is materially limited and the overwhelming majority of the courts sustain the right of counsel for the plaintiff, in a personal injury or death case, so long as he acts in good faith, for the purpose of ascertaining the qualifications of the jurors, and not for the purpose of informing them that an insurance company is back of the defendant of record, to interrogate prospective jurors by one form of question or another with respect to their interest ih, or connection with, indemnity insurance companies. Right to such examination of a prospective juror is basic to an intelligent exercise of challenges for cause or peremptory challenges. Thus, if an employer is indemnified in a liability insurance company against liability for injuries to employees, an employee suing for injuries received is éntitled to know if any prospective juror is interested in the insurance company, and so it is proper to question the prospective jurors, collectively or individually, upon their voir dire, regarding any possible interest that they may have in such company. The fact that the insurance* company is not named as a party to the action is no objection, for the bias of the juror is not to be determined by this fact. Nor is it any objection to say that counsel may protect his client by using a peremptory challenge. It is his right first to learn the facts, and he must do so to exercise intelligently his right to challenge peremptorily.

See also Annot., 56 ALR 1418, 1456, et seq. (1928); 74 ALR 849, 860 (1931); 95 ALR 388, 404 (1935); 105 ALR 1319, 1330 (1936); Smith v. Star Cab Co., 323 Mo. 441, 19 S.W. 2d 467.

We have at least tacitly taken this view of such an inquiry. Even when the defendant’s attorney offered to prove that no prospective juror was connected with his liability insurance carrier’s general or local agency and that none had any interest as stockholders, we approved the trial court’s permitting plaintiff’s attorney to ask each member of the panel whether he had any connection or relationship with the named company and if he had any connection with any company that insures people against liability. Halbrook v. Williams, 185 Ark. 885, 50 S.W. 2d 243. We then said:

*** The jurors or some of them might have had some relationship or connection with the particular company mentioned or some other surety company so as to make them undesirable jurors, and still not have been connected with any agency or held any stock in the particular company. We have many times held that similar questions may properly be asked the veniremen for the purpose of intelligently exercising the right of challenge.

Other cases which clearly recognize the right to ask prospective jurors whether they had been in the employ of any company writing liability insurance or were interested as an employee, agent or stockholder of such a company in order to more intelligently exercise the right of challenge include Sutton v. Webb, 183 Ark. 865, 39 S.W. 2d 314; Bourland v. Caraway, 183 Ark. 848, 39 S.W. 2d 316; Smith Arkansas Traveler Company v. Simmons, 181 Ark. 1024, 28 S.W. 2d 1052.

I am not unaware of the holding in Morgan v. Daniels, 229 Ark. 811, 318 S.W. 2d 823 and in Malone v. Riley, 230 Ark. 238, 321 S.W. 2d 743. In Malone, the court summarily dismissed the contention on the basis of Morgan. But the court did not hold that the question was improper in either case. In both cases, the court held that there was no prejudice because, in answers to other questions, the plaintiff got more information than he was entitled to. In Morgan, the court also took into consideration the fact that when the court inquired into the interest or connection the prospective jurors had in a named company, plaintiff’s counsel showed that he was satisfied with the information obtained by failing to pursue questions he had been given permission to ask. I do take issue with language in the opinion in Morgan, wherein it was said:

*** Since any holder of a mutual policy on the panel would have recognized that his or her company was not involved, they would likewise have known that their dividend credit would not be affected by the outcome of the litigation.

In my opinion this is a non sequitur. It might be apt insofar as a challenge for cause is concerned, but it is obvious to every trial lawyer that wisdom would dictate that a mutual policyholder is an appropriate subject for peremptory challenge in a case of this sort. No advocate representing a personal injury claimant would hesitate to say that, if he knew from other sources that a prospective juror was a holder of a mutual liability insurance policy, he would be a prime subject for consideration when peremptory challenges are considered. Under our cases on scope of voir dire, such an inquiry should be permitted. Here again it is the general rule that such an inquiry should be permitted. Annot. 4 ALR 2d 761, 814 (1949). If Malone and Morgan hold otherwise, I would not hesitate to overrule them.

Neither case considered Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16, where we reversed the judgment because the plaintiff’s attorney, in a case where an insurance company was involved, was not, as here, permitted to ask the following question:

*** Have you ever been in the employ of any liability insurance company, or do you own any stock in any liability insurance company at the present time, or are you insured with any mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?

We said:

In the trial of a civil action in circuit court in this State, each side has the right to excuse three veniremen peremptorily. In cases where the defendant is covered by liability insurance, the plaintiff might want to excuse any one that he suspects may be either biased or prejudiced where insurance is involved; and he would have a perfect right to exercise a peremptory challenge for that reason, if he so desired. The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies. The thing works both ways: A person may have connections with an insurance company that would cause him to be biased in favor of such companies. On the other hand, a venireman may be, for some reason, prejudiced against insurance companies. A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved. Very seldom do lawyers on both sides know the connections and background of all the veniremen or whether they would have an opinion as to the merits of the case. And the purpose of the voir dire examination is to enable counsel to ascertain whether there is ground for a challenge for cause, or for the exercise of a peremptory challenge. Of course, questions about insurance would be improper if counsel does not in good faith believe that some insurance company is interested in the outcome of the litigation. Gill v. Whiteside-Hemby Drug Co., 197 Ark. 425, 122 S.W. 2d 597. But here, it is admitted that insurance is involved, and there is no indication of bad faith.

However the majority may view Dedmon, I view it as support for the propriety of this inquiry.

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


author: John A. Fogleman, Justice.

text:
    Doug EDENS v. STATE of Arkansas
    CR 75-116
    528 S.W. 2d 416
    Opinion delivered October 27, 1975

      Donald B. Kendall and William C. Haney, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Doug Edens was found guilty of burglary after a jury trial. Since he had been charged under the Habitual Criminal Act, the jury, after presentation of evidence of previous convictions, returned a verdict for a sentence of 31 Vz years. He advances five points for reversal, all of which, save one, are based upon asserted errors in the admission of testimony relating to prior convictions of appellant.

The prosecuting attorney adopted an odd procedure in presenting this evidence. He called Bill Risenhoover, a Deputy Sheriff of Benton County, as a witness, and introduced the records of convictions in other counties as exhibits to his testimony. Risenhoover testified that he was the keeper of records for the sheriff’s office in Benton County and that the documents he identified had been delivered to him by the prosecuting attorney only a few moments before he testified. It seems that the usual procedure in Benton County for obtaining documentary evidence of previous convictions is for Risenhoover, as record keeper, to request it in the name of the prosecuting attorney, so that it will be sent directly to him. Appellant’s objection to this method of introduction was not well taken, because the documents themselves, if properly authenticated, were admissible in evidence, without an identifying witness. Ark. Stat. Ann. § 28-907 (Repl. 1962).

Appellant had other objections, however. The court, in overruling appellant’s objection to the use of Risenhoover as the vehicle for the introduction of these documents, held that his testimony was unnecessary insofar as the documents were properly certified. At the same time, two of the exhibits, 3 and 7, were excluded because of lack of proper authentication. But appellant says that exhibits 2, 4, 5 and 6 should have been excluded because they were not properly certified. The alleged deficiencies are absence of the seal of the court in which the convictions were had, the personal signature of the clerk of each of the courts, and the lack of a statement in the certificates that the signer was the keeper of the records from which the purported document was copied.

State’s exhibit 2 purports to be a photocopy of a record of the judgment of conviction of Doug Edens of burglary and grand larceny in the Circuit Court of Madison County on September 5, 1972. The certificate bears the seal of the court. The name of the clerk of that court was signed in this manner: “Alyne Berry, Circuit Clerk and Recorder By Vivian Lewis, D.C.” The names were written in longhand but the remainder of the signature was printed.

Exhibit 4 is a photocopy of an order of the Circuit Court of Washington County adjudging James Douglas Edens guilty of possession of stolen property and sentencing him to three years in the state penitentiary, dated September 26, 1972, bearing the clerk’s filing endorsement and the certificate of the clerk of that court that it is a true copy of the order which is signed in the same manner as exhibit 2 under the seal of the, court. Exhibit 6 is a photocopy of a judgment of conviction of Doug Edens of burglary and grand larceny in the Circuit Court of Madison County, on March 5, 1973, with certification in the exact manner as that of exhibit 2.

The only objection made by appellant which could have any bearing on these documents is the lack of a statement that the signer was the keeper of the records and the identification of official capacity of the actual signer only by the letters “D.C.” We find no merit in either contention. The clerk of the circuit court is by statute the keeper of its records. Ark. Stat. Ann. § 23-306, 308, 315, 318 (Repl. 1962). No evidence of the duty of the clerk of a circuit court in Arkansas in that respect should be required.

We can take judicial notice that on November 4, 1974, Alyne Berry and Alma Kollmeyer were Clerks of the Circuit Courts of Madison and Washington Counties, respectively. Their deputies were fully authorized to perform any of their principals’ duties in the name of the clerk. Ark. Stat. Ann. § 23-309, 310 (Repl. 1962). We cannot take judicial notice of the identity of the deputies. The words “D.C.” following the signature of one signing the name of a clerk of a court have a widely accepted meaning, and, in the absence of controverting evidence, we take judicial notice that they mean “deputy clerk” in that context. See City of Topeka v. Stevenson, 79 Kan. 394, 99 P. 589 (1909); In re Siemen’s Estate, 346 Pa. 610, 31 A. 2d 280, 153 ALR 483 (1943); Solomon v. Dunlap-Huckabee, 174 Ga. 782, 164 S.E. 185 (1932); Harris v. Zeuch, 103 Fla. 183, 137 S. 135 (1931); Rowley v. Berrian, 12 Ill. 198 (1850); Griffin v. Erskine, 131 Iowa 444, 109 N.W. 13 (1906); Shattuck v. The People, 5 Ill. 477 (1843); Russell v. Oliver, 78 Tex. 11, 14 S.W. 264 (1890); Stidham v. Tanner Grocery Co., 47 Ga. App. 114, 169 S.E. 759 (1933); Harris v. Hines, 35 Ga. App. 414, 133 S.E. 294 (1926); Annot. 29 ALR 919, 976 (1924). See also, Conner v. Parsley, 192 Ky. 827, 234 S.W. 972; People v. Thompson, 295 Ill. 187, 129 N.E. 155 (1920).

It has been held that one who, in doing an official act, signs himself as such is presumed to be a deputy clerk in the absence of anything to the contrary. Conner v. Parsley, supra. But we need not go so far. The clerk of a circuit court is the keeper of its seal and authorized to use it in authentication of records. Ark. Stat. Ann. § 22-102, 104 (Repl. 1962). The purpose of affixing a seal to an instrument is to attest the genuineness of the signature or official character of the officer signing it. General Motors Acceptance Corp. v. Sutherland, 122 Neb. 720, 241 N.W. 281 (1932); Brooks v. State, 63 Ga. App. 575, 11 S.E. 2d 688 (1940). See also, Ames Evening Times v. Ames Weekly Tribune, 183 Iowa 1188, 168 N.W. 106 (1918); Harris v. Zeuch, supra. When the person signing the name of the clerk of a court does so as a deputy clerk and affixes the court’s seal of which the clerk is custodian, it will be presumed that the signer is a deputy, in the absence of evidence to the contrary. Brooks v. State, supra. See also, Lambert v. Bowman-Moore Hat Co., 24 Ala. App. 311, 136 So. 738 (1930); Harris v. Zeuch, supra.

Appellant also objects to consideration of exhibits 2, 4 and 6, because they direct confinement in the Department of Correction and not in the state penitentiary. It is true that the Habitual Criminal Act [Ark. Stat. Ann. § 43-2328-2330 (Repl. 1964)] speaks of convictions punishable by imprisonment in the state penitentiary. The Department of Correction, by the passage of the act creating it, was substituted for the State Penitentiary Board and has thereafter had custody, control, and management of the state penitentiary. Ark. Stat. Ann. § 46-100 (Supp. 1973). There was no error in the introduction of exhibits 2, 4 and 6.

Exhibit 5 purports to be a certified copy of the commitment of James Douglas Edens to the state penitentiary for a term of three years on the charge of possession of stolen property. Even though the commitment is signed by one person as “D.C.” and the certificate by another as such and the certificate does not bear the seal of the court, any error in its introduction is harmless, because it is obviously the commitment issued upon the judgment which was shown by exhibit 4.

Appellant alleges error in the introduction of exhibits 8 and 9. They were introduced through Rachel Coler, who testified that she was a deputy circuit clerk and keeper of the criminal records in Benton County. She identified exhibit 8 as a Benton County Circuit Court docket sheet bearing notations showing that Doug Edens was sentenced to three years in the Department of Correction on a charge of possession of stolen property, but that sentence was suspended on good behavior. Exhibit 9 was identified by her as the record of this judgment in the permanent records of the court. Not only was exhibit 8 admitted without any objection having been made, but appellant’s attorney specifically stated that h.e had no objection to the introduction of exhibit 9. We will not consider the objections made here for the first time. Appellant probably knew more about that case than anyone else in the courtroom, and it is obvious that his failure to object was deliberate, with full knowledge that any deficiencies in these exhibits showing convictions in the very court in which he was being tried could quickly be corrected.

Appellant’s argument here that he was prejudiced by exhibits 3 and 7, in spite of their exclusion, seems frivolous. Risenhoover identified them as commitments issued from Madison County Circuit Court, in which the charges, dates, and sentences were identical to those contained in exhibits 2 and 6, respectively. We do not see how the jury could have failed to understand this, even if it did ignore the fact that they had been excluded from evidence.

Appellant also argues that the court’s instruction to the jury on corroboration of an accomplice’s testimony was erroneous in that it was worded so that the jury could convict him if they found corroborative evidence “tending to connect the defendant or defendants with the commission of the offense”. Edens had been charged jointly with Freddie Hatcher, but on the eve of trial, the state moved for a severance and Hatcher testified against Edens. Edens says that Since he was the only one on trial and Hatcher was a co-defendant, the jury might have thought, under this instruction, that it could find Edens guilty if there was evidence tending to show that Hatcher was connected with the offense by testimony other than his own. While we doubt that the instruction can properly be so construed, this is an instance in which the words “or defendants” could and probably would have been deleted had any objection been made in the trial court. This objection, if it has any merit, comes too late.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Bo BOSHEARS v. ARKANSAS RACING COMMISSION
    75-179
    528 S.W. 2d 646
    Opinion delivered October 27, 1975

      McMath, Leatherman & Woods, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Lewis D. Smith, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Bo Boshears, was an employee of the Arkansas Racing Commission and was injured when he was struck by an automobile as he was crossing the street on the way to his regular place of employment after going to a cafe to obtain some grapefruit juice to be consumed with his lunch.

Mr. Boshears filed a claim with the Workmen’s Compensation Commission and the claim was denied by a Referee on the ground that he was not within the course of his employment at the time of his injury. The Referee’s opinion was adopted word for word by the full Commission. He attempted to appeal the decision of the Commission to the Pulaski County Circuit Court and the appeal was denied because of the exclusive jurisdiction in the Workmen’s Compensation Commission under Act 462 of 1949, Ark. Stat. Ann. § 13-1407 (Repl. 1968). Certiorari was then granted by the circuit court — the appellant contending that Act 462 was violative of the equal protection clause of both the Arkansas and the United States Constitutions. The circuit court found that Act 462 of 1949 was not in violation of the equal protection clause of the Arkansas Constitution, Art. 2, § 3, or the Fourteenth Amendment of the United States Constitution. The circuit court found the Act to be constitutional and the decision of the Workmen’s Compensation Commission to be final.

It is apparently conceded in the case at bar that the claim against the Arkansas Racing Commission amounted to a claim against the state but the appellant contends that Act 462 of 1949 is unconstitutional, as above stated, because it denies a state employee the right to appeal from the decision of the Workmen’s Compensation Commission; and, “constitutes an invidious discrimination that has no correct, reasonable and/or proper legislative policy of purpose to justify said exclusion. That said discrimination is arbitrary, capricious, and has no rational or compelling reason for its existence.” The appellant contends that the right of appeal from a decision of the Workmen’s Compensation Commission is “a fundamental right” and since state employees constitute a “suspect group,” the state must prove an overriding state interest before it can deny such “fundamental right.” The appellant then argues that there was no proof of such overriding or compelling state interest offered in this case.

Article 5, § 20, of the Arkansas Constitution provides as follows:

“The State of Arkansas shall never be made defendant in any of her courts.”

Most of the cases coming before us involving Art. 5, § 20, supra, have to do with whether the particular suit actually amounts to a suit against the state, and in Watson v. Dodge, 187 Ark. 1055, 63 S.W. 2d 993, we held that any suit, whether in law or in equity, which has for its purpose and effect, directly or indirectly, of coercing the state is one against the state. In Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. 88, we held that the trial court acquires no jurisdiction where the pleadings show that a suit is in effect one against the state. The decisions in these cases are beside the point because, as already stated, it is not questioned that the claim in this case at bar was a claim against the state.

Claims against the state for personal injuries and property damage have been the subject of considerable legislation since the Legislature ceased dealing directly with such claims and transferred these duties to administrative boards such as the Special Claims Commission under Act 227 of 1935. The Special Claims Commission was later abolished by the creation of the State Board of Fiscal Control under Act 53 of 1945, which in turn was divested of its jurisdiction over claims against the state by the creation of a State Claims Commission under Act 276 of 1955, Ark. Stat. Ann. § 13-1401 (Repl. 1968). None of these Acts provided for judicial review but they were careful to avoid conflict with Art. 5, § 20, of the Constitution, supra, by language indicating exclusive jurisdiction in the administrative tribunal. The 1935 Act did provide that the action of the Commission “shall be subject to review only by bill in the General Assembly.”

By Act 462 of 1949 as amended, and digested as Ark. Stat. Ann. § 13-1407 (Repl. 1968), the Arkansas Legislature set up a special fund in the state treasury from which to pay claims allowed against the state to injured state employees and provided that the claims for injuries and death sustained by state employees while in the course of their employment with the state or any of its agencies, departments or institutions, arising out of or occurring within the course of such employment should be considered on the same basis and under the same provisions of the Arkansas Workmen’s Compensation Act, as applied to injured employees in private industry and the duty of administering the Act was placed on the Workmen’s Compensation Commission. This Act, § 13-1407, provides in part as follows:

“From the effective date of this act [March 19, 1963], the Workmen’s Compensation Commission shall have exclusive jurisdiction, as herein limited, of all claims against the State of Arkansas and its several agencies, departments, and institutions, for personal injuries and deaths of employees and officers of the State of Arkansas and its agencies, departments and institutions, arising out of and in the course of employment or service, and occurring on or after the effective date of this act [March 19, 1963]. Awards for such injuries and deaths shall be made by the Workmen’s Compensation Commission in the same amounts and on the same terms and conditions as if such injuries and deaths had arisen out of and in the course of private employment covered by the Workmen’s Compensation Act [§§ 81-1301 —81-1349] and the procedure to be followed in the presentation, hearing and determination of such claims shall in all respects be the same as in claims for compensation for injuries and deaths arising out of and in the course of private employment covered by the Workmen’s Compensation Act, except that the actions taken by the Workmen’s Compensation Commission with respect to the allowance or disallowance of any claim, in whole or in part, shall be final and binding upon all parties thereto, and shall not be subject to judicial review. The General Assembly shall at each biennial session appropriate, from such sources as it may see fit, a sum sufficient to satisfy such claims as are or probably will be payable during the following fiscal biennium under awards made under this section. The Workmen’s Compensation Commission shall direct the distribution of this fund and disburse same upon its vouchers issued against same.
There is hereby created in the Treasury of the State of Arkansas, a special fund to be known as the Workmen’s Compensation Revolving fund. All sums appropriated by the General Assembly pursuant hereto shall be deposited by the State Treasurer to the account of this special fund. The Workmen’s Compensation Commission shall draw all vouchers against this fund in payment of awards made by it under this act [§§ 13-1401 — 13-1413].
For the purposes of this act, the State of Arkansas shall be considered a self-insurer and shall be exempt from all fees and tax as such. [Acts 1949, No. 462, § 7, p. 1289; 1951, No. 373, § 3, p. 881; 1963, No. 521, § l,p. 1611.]” (Emphasis added).

The Act further provides (§ 13-1409) that upon the allowance or disallowance of such claim the Workmen’s Compensation Commission should immediately transmit a copy of its findings to the state comptroller (Director of Administration) and interested parties, and in the event that award should be made, the Workmen’s Compensation Commission should immediately take the necessary steps to pay the award and all expenses incidental to such claims from any funds previously made available for such purpose.

The appellant’s argument that § 13-1407, supra, violated “traditional” equal protection is without merit. In upholding the validity of a Sunday closing law, in the case of McGowan v. Maryland, 366 U.S. 420 (1961), the United States Supreme Court explained the “traditional” approach to equal protection as follows:

“Although no precise formula has been developed, the Court had held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

Sovereign immunity question in the case at bar as embodied in Art. 5, § 20, supra, is very similar to that involved in the Illinois case of Raschillo v. Industrial Commission, 47 Ill. 2d 359, 265 N.E. 2d 663 (1970), and in that case the Supreme Court of Illinois said:

“The General Assembly drafted this statute which contained the distinction between State employees and private employees in accord with the doctrine of sovereign immunity. It cannot be said that the General Assembly in complying with the Illinois State constitutional doctrine of sovereign immunity created an invidious discrimination. The basis for the distinction between State employees' and private employees being that of following such a constitutional mandate was wholly rational and did not contain arbitrary classifications so as to abridge the equal protection guarantee. ...”

The appellant in the case at bar cites several cases under the Administrative Procedure Act, Ark. Stat. Ann. § 5-701, et seq. (Supp. 1973), wherein various state agencies were defendants in court action. In Hickenbottom v. McCain, Comm’r of Labor, 207 Ark. 485, 181 S.W. 2d 226 (1944), we pointed out that if the relief prayed should have been granted, it would have imposed no obligation on the state and, therefore, was not a suit against the state.

The appellant’s contention that state employees belong to a “suspect class” and that the right of appeal is a “fundamental right” is also without merit. We may accept as valid the appellant’s argument that legislation which establishes classification does not carry with it the presumption of constitutionality under an equal protection challenge where the class it establishes is “suspect, ” and that in such situations the state must demonstrate a compelling interest for the legislation. There are a number of court decisions that would tend to support the appellant in this argument such as race where the membership of the class is an accident of birth as in Loving v. Virginia, 388 U.S. 1 (1966); indigency as in Griffin v. Illinois, 351 U.S. 12 (1956); alienage as in Graham v. Richardson, 403 U.S. 365 (1971); illegitimacy as in Gomez v. Perez, 409 U.S. 535 (1973); and sex as in Frontiero v. Richardson, 411 U.S. 677 (1973). The appellant has cited no case and we have found none in which state employees as a class have been determined to constitute a class that is “suspect” within the context of appellant’s argument. As to appellant’s argument pertaining to a “fundamental” right to an appeal, the concept of “fundamental” right with respect to equal protection under the Fourteenth Amendment was considered by the United States Supreme Court in the case of San Antonio School District v. Rodriquez, 411 U.S. 1 (1973), where the court, quoting from Shapiro v. Thompson, 394 U.S. 618 (1968), said:

“ ‘The Court today does not ‘pick out particular activities, characterize them as ‘fundamental’ and give them added protection. . . .’ To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.’ ”

In Griffin v. Illinois, supra, the United States Supreme Court said:

“It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.”

See also Blanc v. United States, 244 F. 2d 708 (2d Cir. 1957) where, in refusing judicial review of an administrative denial of the appellant’s claim under the Federal Employees’ Compensation Act, the Court of Appeals for the Second Circuit said:

“Though it may be informal, agency action which amounts to a genuine, fair consideration of a claim for benefits and not merely an arbitrary flouting of it, satisfies constitutional requirements and precludes further court review. The appellant appeared by her attorney at the hearing before the Appeals Board. Its decision and order as filed contains a comprehensive statement of the facts and of its plausible reasons for the affirmance of the denial of the claim. By no stretch can it be fairly said that its action was arbitrary or capricious.”

In the case of Ortwein v. Schwab, 410 U.S. 656 (1973), an Oregon statute required a $.25 filing fee before a public welfare agency decision would be subject to judicial review. In upholding the Act under the due process clause, the United States Supreme Court said:

“These appellants have had hearings. The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U.S. 684, 687 (1894); see Griffin v. Illinois, 351 U.S. 12, 18 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627 (1937); Lindsey v. Normet, 405 U.S. 56, 77 (1972).”

We conclude, therefore, that Act 462 of 1949 as amended (§ 13-1407), simply makes the Arkansas Workmen’s Compensation Commission a “claims commission” in connection with claims by state employees for injuries or death growing out of their employment by the state and provides that in administering its duties in connection with such claims, the Workmen’s Compensation Commission shall apply the compensation law as it relates to private industry. We hold that Act 462 of 1949 does not violate the equal protection clauses of the Arkansas or United States Constitutions, and that the judgment of the circuit court should be affirmed.

The judgment is affirmed.