author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    R. Stephen VENABLE, M.D. v. Douglas W. BECKER, d/b/a PRODENCO SYSTEMS AND SERVICES
    85-130
    697 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      W. Edward Tarvin, for appellant.

      Dillahunty, Skelton & James, for appellee.
   Darrell Hickman, Justice.

This appeal concerns an action on an account brought by Douglas Becker against Dr. R. S. Venable and Clinicare, Inc. Becker printed custom forms and materials ordered by Dr. Venable for Clinicare. Partial payments were made on the account before Clinicare entered bankruptcy proceedings. The circuit judge, sitting as a jury, awarded a judgment of $3,093.18 against Venable and Clinicare, Inc., jointly and severally.

Two questions are raised on appeal. First, whether Rule 38 of the Arkansas Rules of Civil Procedure is constitutional since it provides that a jury trial is waived unless requested 20 days before trial; second, whether the judge correctly awarded judgment against Venable individually. We answer both questions yes.

The issue of the constitutionality of ARCP Rule 38 arises due to the trial court’s denial of Venable’s request for a jury trial, which was made the day before trial. Venable pointed out a conflict between the rule and Ark. Stat. Ann. § 27-1743 (Repl. 1979), which states that a jury trial can be waived either of three ways: failure of a party to appear, written consent of the party or his attorney filed with the clerk, and oral consent in open court entered on the record. None of these actions were taken. ARCP Rule 38 provides that a party may demand a jury trial at any time after the commencement of the action, but not later than 20 days prior to the trial date. The failure to demand within this time period constitutes waiver.

The legislature authorized us to promulgate rules of pleading, practice and procedure in respect to civil proceedings. Act 38 of 1973. This act further states that all laws in effect at that time regarding pleading, practice and procedure in civil proceedings would remain in effect only until this court prescribed rules regarding the same. In our per curiam of December 18,1978, we adopted the Arkansas Rules of Civil Procedure based on Act 38 and our constitutional and inherent power to regulate procedure in the courts.

While Ark. Stat. Ann. § 27-1743 (Repl. 1979) was not specifically listed as superseded by the Arkansas Rules of Civil Procedure, the question is determined by Act 38 and the supersession rule which provides: “All laws in conflict with the Arkansas Rules of Civil Procedure . . . shall be deemed superseded. . . .” ARCP Rule 1, notes. Because the two provisions cannot stand together, Rule 38 superseded Ark. Stat. Ann. § 27-1743.

The Arkansas Constitution is not violated by ARCP Rule 38 because the Constitution states “a jury trial may be waived by the parties in all cases in the manner prescribed by law.” Art. 2, § 7. Rule 38 is the law.

The evidence was uncontroverted that Douglas Becker dealt individually with Venable, and the account was paid in part by Venable. None of the printed forms, building signs, telephone listings or the check for partial payment indicated Clinicare was incorporated as required by Ark. Stat. Ann. §§ 64-107 (a) and 64-1704 (Repl. 1980). Since Becker dealt only with Venable without knowledge of the corporate status of Clinicare, Becker was justified in thinking he was dealing with an individual. We cannot say that the trial court’s finding was clearly erroneous. ARCP Rule 52.

Affirmed.

Newbern, J., concurs.

Purtle, J., not participating.

David Newbern, Justice,

concurring.

I concur wholeheartedly with the majority opinion. I write separately only to point out that we are aware of the indirect implication of our opinion in Sun Gas Liquids Company v. The Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982), to the effect that legislation was not superseded unless listed as deemed superseded in our per curiam order of December 18, 1978. The majority opinion in this case makes it clear that the noted implication of the opinion in Sun Gas Liquids Company v. The Helena National Bank, supra, if intended, was not correct.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Claudie Maples FORREST v. Walter “Sonny” BAKER, et al. and Eugene ALEXANDER v. Billy WOOD, et al.
    85-140
    698 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Samuel Turner, Jr., for appellants.

      Jake Brick, for appellees.
   Robert H. Dudley, Justice.

Appellants, Claudie Maples Forrest and Eugene Alexander, have consolidated their election contest cases for appeal. Each was a candidate for a separate position as alderman of the City of Earle in the 1984 general election. The trial court ruled that both candidates failed to state facts upon which relief could be granted. See ARCP Rule 12(b)(6). We affirm.

Appellant Forrest alleged that the county election commission certified that appellee Walter Baker received 590 votes for alderman of ward two, position two, and that appellant Forrest received 564, a difference of 26 votes. Consequently, in order for the complaint to state a cause of action upon which relief can be granted, it is necessary for appellant to plead facts sufficient to state that, at the least, 26 of appellee Baker’s votes were illegally cast. Hill v. Williams, 165 Ark. 421, 264 S.W.2d 964 (1924); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); and Wilson v. Anderson, 193 Ark. 799, 103 S.W.2d 63 (1937). Appellant does not plead facts sufficient to void 26 of appellee Baker’s votes.

Appellant Forrest’s complaint is based entirely upon alleged irregularities in the applications for absentee ballots. Ark. Stat. Ann. § 3-903 (Repl. 1976) provides that the following persons may cast an absentee ballot if they possess the qualifications of electors:

(a) Any person who will be unavoidably absent from his voting place on the day of election.
(b) Any person who, because of illness or physical disability will be unable to attend the polls on election day.
Ark. Stat. Ann. § 3-905 (Repl. 1976), which was in effect at the time of the 1984 election, provided the form which was to be used in applying for absentee ballots. In the material part, it provided:
3-905. Absentee ballot application form. — Applications for absentee ballots shall be made only on the form furnished by the County Clerk and the County Clerk shall supply the following form on request beginning sixty (60) days before the election.
“County Clerk
-County
-, Arkansas
1. Because of_, I will be absent from
my voting precinct on the date of the_election
to be held on the_day of_, 19__
Please mail an absentee ballot for the election indicated above.
My voting precinct in_County is
My residence address is Mail my ballot to me at
(Signature of Voter)

Appellant Forrest’s complaint sets out a total of 74 persons whose votes are alleged to be illegal because, according to appellant Forrest, they did not give a valid reason to vote absentee when they filled in the blank on the above application form. Appellant argues that 50 of the ballots are illegal because the voters wrote “unable to get to the poll” as their reason for voting absentee. There is no allegation that any of the applications were false or that any of the voters could get to their polling place. Appellant Forrest’s argument is plainly without merit since a voter necessarily will be unavoidably absent from his voting place if he is unable to get to that place. It is not essential that the voter give more than his primary reason. In Lehigh v. Wooley, 240 Ark. 976, 403 S.W.2d 79 (1966), we explained:

It was stipulated that appellees wrote the words “out of town” in the last blank space as the “reason” for being absent. It is appellants’ contention however that the assigned “reason” is insufficient and does not meet the requirements of the above mentioned statute. This objection was appellants’ sole ground for refusing to count appellees’ ballots. The burden of appellants’ argument appears to be that it was incumbent upon appellees to explain why it was necessary for them to be “out of town”. The trial court held that the “reason” given by appellees was a substantial compliance with the statute, and we agree with that holding.
We do not believe the legislature meant for an absentee voter to explain in detail the “reason” for being absent on election day. If a real and convincing “reason” should be required, then it follows that someone would have to judge the sufficiency of that reason. Such a procedure could easily result in an elector being compelled to divulge personal secrets in order to exercise his constitutional right to suffrage.
Appellants lay much stress on the words “unavoidably absent” as meaning the elector must give a good reason why he will be “absent from town”. We point out however that the elector is only required to give a good reason why he will be “absent” from the voting precinct. We then submit that if the elector is “out of town” on election day he will “be unavoidably absent” from his voting precinct.

The complaint does not state facts sufficient to set aside the 50 ballots which recited the reason “unable to get to the poll” and that, in turn, arithmetically ends this election contest case. We need not discuss it further. The mathematical summation is as follows. Appellant Forrest lost the election by 26 votes. She then sought to have 74 of her opponent’s votes declared illegal. She did not state facts sufficient to void the first 50 mf the 74 contested votes. Thus, only 24 votes listed in the complaint remain to be discussed, but there is no need to discuss them since even if all 24 votes were illegal, it would not change the result of the election.

The other complaint, the one filed by appellant Alexander, recites that the county election commission certified that appellee Billy Wood received 614 votes for alderman of ward one, position one, and that appellant Alexander received 608 votes, a difference of only 6 votes. Appellant argues that 74 of Wood’s votes are illegal. He contends that 50 of them are illegal because “unable to get to poll” was the reason given in the application for absentee ballot. For the reason given in the preceding part of this opinion that allegation does not state sufficient facts to disenfranchise the 50 voters.

Appellant Alexander additionally pleads that fourteen named voters’ ballots are illegal because they gave “work” as the reason for being unavoidably absent. There is no allegation that any of the reasons were false, or that the voters’ work did not prevent them from being unavoidably absent. Appellant Alexander contends that filling in “work” as the reason for being unavoidably absent makes an absentee ballot an illegal one, as a matter of law. The argument is without merit since one’s work may well make him unavoidably absent from his voting place on election day. Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979).

He additionally pleads that one vote is illegal because the reason given in the application was “My age, I cannot get there.” He pleads that two more are illegal when the reason given is “will not be able to get to the poll before 6:30” and another is “My husband doesn’t get home from work in time.” Again, there is no allegation that any of these reasons are false, or that any of the voters could have gotten to the polling places. The reasons stated are sufficient for an absentee ballot since they would cause each of the voters to be unavoidably absent from his polling place on election day. Again, the appellant does not state sufficient facts to void these votes.

Appellant Forrest pleads that two different voters should be disenfranchised, as a matter of law, because their application recited “sickness in the family.” Again, the complaint does not allege that the application was false or that the sickness in the family was such that the voter was able to attend the polls. The allegation does not allege sufficient facts to void these two votes. A voter can have sickness in his family which renders him unable to attend the polls.

From the discussion to this point, appellant Alexander has failed to state facts sufficient to void the 70 allegations we have examined so far. We need not examine the complaint further because even if the remaining allegations were sufficient to strike the remaining four ballots, it would make no difference since appellant Alexander lost by six votes.

Affirmed.

Purtle, J., not participating.


text:
    Danny M. SIPES d/b/a Little Rock Moving Company, and Eldredge WILLIAMS v. Mollie MUNRO
    85-131
    697 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Moses, McClellan & McDermott, by: Harry E. McDermott, III, for appellant.

      Haley, Polk, & Heisler, P.A., by: Edward J. Bisno, for appellee.
   Robert H. Dudley, Justice.

Appellant, Danny Sipes d/b/a Little Rock Moving Company, owned a fifteen foot bob truck which appellant Eldredge Williams was driving west on Highway 70 on December 10, 1983. At a point described as 20 to 30 minutes east of Hot Springs, Williams realized that he had passed the side road where he should have turned off, and he decided to turn around. It was dark and raining. He turned left into a driveway and then backed out onto the highway in order to turn back toward the east. At this time, appellee, Mollie Munro, was approaching from the east.

Appellee’s automobile struck the truck while it was still partially backed across the highway. She testified that the truck had no visible lights and that she could not see it until it was too late to stop. She further testified that it cost her $963.63 to repair the car.

The suit was tried to the court. Appellant Williams was found negligent, and that negligence was imputed to appellant Sipes. Appellee Munro was found to have suffered $963.63 in property damages as a direct result of appellants’ negligence. We affirm the decision.

Appellants’ first point of appeal is that there was not sufficient evidence of the value of appellee’s car, before and after the accident, to sustain the award of $963.63 in damages. Appellee replies that appellants cannot raise the point on appeal since they did not move for a directed verdict at trial. Appellants may raise the point. ARCP Rule 50(e) provides that failure to file a motion for a directed verdict constitutes a waiver of the right to question the sufficiency of the evidence. Rule 50(e), however, applies only to jury trials. In a non-jury trial it is not necessary to move for a directed verdict in order to test the sufficiency of the evidence on appeal. Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). While the 1984 amendment to Rule 50(a) specifies the manner of questioning the sufficiency of the evidence in a non-jury trial, that amendment had no effect on the provisions of Rule 50(e).

Even though the point may be raised, it is without merit. Appellee Munro testified that it cost her $963.63 to repair the car as a result of the accident. There was no objection because of an insufficient foundation to testify about reasonableness and causal relationship of the expense. See Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984). The measure of damages to automobiles is the difference in the fair market value of the automobile immediately before and immediately after the accident. Ark. Stat. Ann. § 75-919.1 (Repl. 1979); AMI Civil 2d 2226; Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). However, we have long held that, in the absence of other competent proof of market value, the difference in market value before and after the collision may be established by showing the amount paid in good faith for the repairs that were necessitated by the collision. Payne v. Mosley, 204 Ark. 510, 162 S.W.2d 889 (1942); Golenternek v. Kurth, 213 Ark. 643, 212 S.W.2d 14 (1948); and see comment to AMI Civil 2d, 2226. Here, appellee’s testimony concerning the amount she paid for repairs necessitated by the collision was sufficient to sustain the award of damages.

Appellants’ next argument is that the trial court should have found the appellee guilty of contributory negligence. This argument is also without merit. On appeal, in reviewing the sufficiency of the evidence to support a verdict by a trial judge, the appellate court considers the evidence, and all reasonable inferences from that evidence, in the light most favorable to the appellee and affirms unless the trial judge’s decision is clearly erroneous. ARCP Rule 52; Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). Here, the evidence, when viewed in the light most favorable to appellee, establishes that appellants’ truck was backed onto the highway and was partially blocking appellee’s lane of traffic at the time of the collision. It was dark but the appellant had not yet turned on the truck’s lights. Appellee, driving slowly, could not see the truck until it was too late to avoid hitting it.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    ARKANSAS LOUISIANA GAS COMPANY, Tom HAWKINS and Kent BACHELOR v. D.M. “Good” HUTCHERSON, Vernie GILES, Leon MOORE, and R.M. TUCKER, et al.
    85-123
    697 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Laws & Swain, P.A., by: Ike Allen Laws, Jr. and Timothy W. Murdoch', and Gardner, Gardner & Hardin, by: Richard E. Gardner, Jr., for appellants.

      Luther B. “Lu” Hardin, for appellees.
   David Newbern, Justice.

The appellees have obtained judgments for deceit against appellants Hawkins and Bachelor and a judgment for breach of contract against appellant Arkansas Louisiana Gas Co. (Arkla). The allegations of the appellees were that Hawkins and Bachelor misrepresented the obligations the appellees would incur if they agreed to participate in formation of an improvement district to obtain gas service. They alleged that Arkla breached its contract with respect to installation of the gas lines. The appellants complain about inconsistency and, by implication, excessiveness of the verdicts. However they cite no authority and make no convincing argument in support of those points, and thus we decline to review them. Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The sole question presented to us is whether the evidence was sufficient to support the jury verdicts on which the judgments were based. We hold the evidence was sufficient as to the misrepresentation verdicts but that it was not sufficient on the breach of contract claim. Thus we affirm in part and reverse and dismiss in part.

When insufficiency of the evidence is the issue presented on appeal, we view the evidence most favorably to the appellee and affirm if there is any substantial evidence to support the verdict and judgment. Circle Realty Co. v. Gottlieb, 267 Ark. 160, 589 S.W.2d 574 (1979); Swink & Co., Inc. v. Carroll McEntee & McGinley, 266 Ark. 279, 584 S.W.2d 393 (1979). Although we have been invited to do so by the appellants, we will not determine the “preponderance” of the evidence when the appeal is from a judgment based on a jury verdict. Industrial Park Businessmen’s Club, Inc. v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972).

1. Misrepresentation

Hawkins and Bachelor circulated petitions for creation of a gas service improvement district among residents of the area to be served by the proposed district. Some of the appellees testified that Hawkins and Bachelor told them the taxes or assessments which they would be required to pay to support retirement of the new district’s bonds would be substantially less than they ultimately had to pay. For example, appellee Hutcherson testified that Hawkins came to him to solicit his support and told him his tax would be $60.00 a year for eight or ten years until the bonds were paid off. Instead, under the district’s formula, his improvement district tax was $514.00 per year. For another example, Steve Downum testified that Bachelor came to him and said he would not have to pay anything to be in the district if he did not use the gas because it would be paid for by those who used the service. Downum testified his improvement district tax is $50.00 per year. Hawkins and Bachelor were two of the initial commissioners of the improvement district, and there was unrebutted testimony that Hawkins’ wife owned 50 percent of a company called Ark Vision which contracted with Arkla to install the gas lines. Under these circumstances we have no hesitancy in saying that there was substantial evidence to show the presence of each of the elements of fraud. See Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). First, there was testimony that the representations exemplified above proved false. Second, there was testimony from which the jurors could reasonably have inferred that Hawkins and Bachelor knew that the bond retirement proposal would require landowners in the district to pay annually $50 per home and the first acre and $2.50 per additional acre until the bonds were retired. Third, there is no dispute that Hawkins and Bachelor were attempting to induce participation so as to bring the district into existence. Fourth, there was direct testimony on reliance on the misrepresentations. Fifth, there was evidence of damages in that some appellees testified they are getting no benefit from the district and are paying far more for it than they had been led to believe they would be required to pay. Thus there was substantial evidence to support the misrepresentation verdicts.

Nothing in this part of this opinion should be construed as holding that improvement district commissioners must be able to give exact information on unknown or as yet undetermined costs to prospective participants. The point here is that the evidence supports the conclusion that these commissioners knew or had every reason to know precisely what the annual assessments would be and misrepresented those figures to the appellees.

2. Breach of Contract

When it was formed, the district entered an agreement with Arkla to lay the gas lines. The contract called for the district to pay Arkla $185,610 to install the gas lines. Attached to and incorporated by reference in the contract was an “Exhibit A,” also identified as “Schedule A,” a scale drawing which showed where the lines were to be placed. It called for laying some 90,000 linear feet of gas lines.

The appellees cite the testimony of two witnesses as being sufficient to support their contention that there was shortage in the pipe laid by Arkla. The first of these is Earl Yeargan who calculated that Arkla had, at most, laid 86,000 feet of lines in the district. During his testimony Mr. Y eargan referred to a copy of “Exhibit A” which later in the trial was demonstrated to have been incorrect. His calculations were based on this incorrect exhibit combined with measurements taken by him personally. On oral argument before this court appellees’ counsel conceded that the copy of “Exhibit A” to which Yeargan referred was incorrect. We cannot tell, nor could a reasonable juror have told, from the complete transcript of Yeargan’s testimony the extent to which his calculations were invalidated by the concededly incorrect datum on which they were based, thus we cannot find his testimony to have been substantial evidence of a shortage.

The other witness was Danny Adams, an Arkla employee. During his testimony he referred to a map he had prepared showing the lines placed by Arkla in the district. He testified he had measured the pipe when it was still exposed and then had drawn it on the map. He said that Arkla did not put pipes in all of the places required by the authentic “Schedule A” but that the changes were requested by the commissioners of the district and that Arkla eventually laid 91,995 feet of new line in the project, His testimony was that “Schedule A” called for 89,760 feet and that Arkla put in 79,335 feet of line in the places called for in “Schedule A” and the remainder of the 91,995 feet was placed in accordance with the agreed changes.

The appellees’ brief refers us only to Adam’s testimony on re-cross examination where he says Arkla put in 79,335 feet of line called for by “Schedule A” and would have us ignore the remainder of his testimony. We cannot do that, and no reasonable juror should have done so.

The essence of the appellees’ claim is that Arkla shorted the district in the amount of pipe it laid. There is no substantial evidence supporting that conclusion, therefore the judgment against Arkla is reversed and this claim is dismissed.

Affirmed in part; reversed and dismissed in part.

Purtle, J., not participating.


author: Louis B. Jones, Jr., Special Justice.

text:
    Robert E. BELL, et al. v. CRAWFORD COUNTY, et al.
    85-36
    697 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985
    [Rehearing denied December 9, 1985.]

      Gary R. Cottrell, City Att’y for Van Burén; Stephen G. Peer, City Att’y for Alma; Batchelor & Batchelor, by: Fines F. Batchelor, Jr.; and Gill, Skokos, Simpson, Buford & Graham, P.A., by: John P. Gill, for appellant.

      N.D. Edwards, and Shaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellee.

       Purtle and Hays, JJ„ not participating.

   Louis B. Jones, Jr., Special Justice.

The court is being asked to construe provisions of the Arkansas Constitution, article 16, sections 9,11 and 13, and amendments 13,17 and 25 and thus jurisdiction arises under Rule 29 1. a.

Appellants are mayors of four municipalities in Crawford County (Van Burén, Alma, Mulberry, and Mountainburg) who are bringing a class action suit in their capacities as individual taxpayers against the quorum court and various officials of the county. The mayors are representing interests of the municipal taxpayers who allege they are not receiving their fair share of money resulting from three different funds and awarded by the chancellor to the county to be used for purposes to benefit all county residents. Municipal residents constitute approximately one-half the county population, and property within corporate limits was taxed to raise about one-half of the ad valorem tax for the hospital. Therefore, appellants allege they should receive one-half the funds resulting from the bond surplus, lease fund, and interest.

Three funds are involved in this dispute: the bond surplus, the hospital lease fund, and the interest from the hospital lease fund. For 30 years, beginning in 1948, the county taxpayers paid an ad valorem tax to construct, equip, and expand a county hospital. The hospital was finished sooner than expected and an excess tax of $122,200 was collected, which all parties agree was an illegal exaction. The hospital was run on a non-profit basis until 1982 when the county leased it to Humana Medical Centers for 26 years. The first five years of the lease brought the county $2.5 million (lease fund); the remainder of the lease was to result in an additional revenue for the county of $ 18,775,000, according to the appellants. In addition to the rent, the lessee agreed to retire revenue bonds issued by the county in 1972 for improvements on the hospital which were to be paid from hospital revenues. The county put the $2.5 million lease fund on deposit, pending settlement of a government Hill-Burton repayment obligation. Interest from this fund (interest fund) goes into the county general fund and has been transferred to the county road fund.

The chancellor ruled that a refund to the taxpayers of the bond surplus was impossible due to the passage of time. Since the hospital was complete and managed by a for-profit corporation, there was no way the chancellor could apply the fund to a hospital-related activity. He therefore found the best way to return the illegal exaction was to return it to the county general fund for use by all the taxpayers. The chancellor further found the lease fund and interest thereon to be property of the county and, since he found no evidence of Crawford County officials acting intentionally to discriminate against any segment of the taxpayers, he ruled the county had the proper authority to manage the money.

Appellants’ first contention is that the use of the bond surplus and hospital lease fund (and the interest thereon) by the county is an illegal exaction; such funds are the property of the taxpayers and the county is a mere trustee. The hospital in question is or was the property of Crawford County having been financed by a local millage. Exclusive jurisdiction over such county owned hospitals rests with the county judge and quorum court. Ark. Const. art. 7, § 28; amendment 55, § 3; Ark. Stat. Ann. § 17-304 (Repl. 1980). These county officials, in conjunction with the County Hospital Board of Governors, have been given the right to sell or lease a county hospital. Ark. Stat. Ann. § 17-1504 (Repl. 1980).

This court has specifically ruled that the sale of a county hospital does not constitute an illegal exaction in violation of art. 16, § 13 of the Arkansas Constitution (1874). Richerson v. Bearden, 278 Ark. 350, 645 S.W.2d 946 (1983). Although Richerson involved the sale of a county hospital and the instant case involves the lease of a county hospital, there is no legal distinction between the transactions. Neither the lease of Crawford County Memorial Hospital nor the funds generated by the lease payments constitutes an illegal exaction. Therefore, we find that the trial court correctly determined that the hospital lease fund and the accrued interest thereon was not an illegal exaction. Our holding is dispositive of the other points raised in appellants’ brief relative to the removal of the county as trustee of the funds. Since the use of the lease fund and interest is found not to be an illegal exaction, the county should be the disbursing agent for said funds.

As to the bond surplus fund, however, the chancellor determined that the bond surplus fund constituted an illegal exaction. None of the parties appealed from that ruling. The chancellor found that return to the taxpayers of the bond surplus was impossible due to the passage of time. We therefore must determine whether the chancellor ruled correctly that the illegal exaction, which all parties agree cannot be returned to the individual taxpayers who originally paid the tax, could only be returned to the county’s general fund. We disagree with the chancellor’s assumption that the only remedy for the illegal exaction of the bond surplus was to give it to the county’s general fund. A tax dedicated to one purpose cannot be used for another and accordingly, money appropriated from a hospital fund should not be used for county roads. In other cases involving illegal exactions, surpluses have been refunded to the taxpayers. City of Searcy v. Headlee, 222 Ark. 719, 262 S.W.2d 288 (1953); City of Stuttgart v. McCuing, 218 Ark. 34, 234 S.W.2d 209 (1950). McCuing is a case involving surplus funds from an appropriation to improve streets. The funds were illegally put in a Street Fund to repair and maintain existing streets. In McCuing this court said:

Here, the surplus fund in excess of the money necessary to retire the bonds with interest and to complete the work for which collected is substantial. It belongs to the taxpayers who paid it and not to the City. We hold that the duty rested on the City to make refund of the surplus as prayed.
From a practical viewpoint, since in all cases of refunds there must be necessary costs attached, such refunds would be subject to the burden of distribution. Obviously, in some instances where excess funds are to be dealt with, the overall cost of refunding might exceed the surplus, or it might be found that in respect of each taxpayer the rule de minimis non curat lex (the law cares not for small things) should apply. In such cases, where no taxpayer’s claim could be regarded as substantial, no refunds would be required. In all other cases, however, as indicated, refunds should be made upon appropriate demand.

218 Ark. at 39.

Appellees and appellants both argue that a refund to the taxpayers would be impossible or impractical. Nevertheless, a refund to the taxpayers of record in 1978, the year that the bonds were retired, should be made. The task would be admittedly difficult, but the amount involved, approximately $ 122,200, is not de minimis, and we have held that the taxpayers, in instances of bond surpluses accumulating as a result of the retirement of the original bond issue, are entitled to a refund. This court is of the opinion that there must be a more appropriate remedy here than giving the bond surplus to the county’s general fund. The case is therefore remanded to the chancellor on the question of the proper disposition of the bond surplus funds, with instructions to adduce proof to determine how best to effect a refund to the taxpayers of the surplus bond moneys. If the chancellor determines, after hearing testimony, that such a refund is impossible, the surplus funds should be used for health care, since that was the purpose for which the bonds were originally issued.

The chancellor’s ruling is affirmed in part as set out herein and remanded in part for further findings not inconsistent with this opinion.

Affirmed in part; remanded in part.

Purtle and Hays, JJ., not participating.


author: Per Curiam.

text:
    Matthew AUSTIN v. STATE of Arkansas
    CR 84-167
    697 S.W.2d 914
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Pro Se Motion for Transcript at Public Expense; denied.

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Matthew Austin was found guilty of rape and sentenced to a term of 40 years imprisonment. We affirmed. Jackson & Austin v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). Petitioner now seeks a copy of the transcript of his trial so that he may mount a collateral attack on the conviction on the following grounds: ineffective assistance of counsel; sufficiency of the evidence; accuracy of testimony; sufficiency of the bill of information; and failure of the prosecution to disclose exculpatory evidence. He also alleges that he is entitled to the copy of the transcript at public expense because he is indigent.

Even if a petitioner cites allegations he intends to raise in a petition for postconviction relief, he is not entitled to a copy of the trial record at public expense unless he demonstrates some reasonably compelling need for specific documentary evidence to support the allegations. See Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971). The mere fact of indigency does not entitle a petitioner to a free transcript. See Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). Petitioner here has not shown that he must have the trial court record in his possession before he can present to the court whatever grounds for postconviction relief he may have. Furthermore, the motion is not attached to nor incorporated into a petition for postconviction relief. See United States v. Losing, 601 F.2d 351 (8th Cir. 1979).

It should be noted that when an appeal has been lodged in either this Court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel may check a transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this Court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying.

Motion denied.

Purtle, J., not participating.


text:
    Oliver DUDLEY v. STATE of Arkansas
    CR 85-183
    697 S.W.2d 912
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Law Offices of Jim Lyons, by: Scott Emerson and Scott Davidson, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant’s petition for writ of certiorari is granted. Because the petition contains allegations that the court reporter, Ms. Ralphalene Forbis, has refused to transcribe the trial testimony, we are referring this matter to the committee on Supreme Court Board of Certified Court Reporters for whatever action it may deem appropriate.

Purtle, J., not participating.


text:
    Avery Nathan RICHARDSON v. STATE of Arkansas
    697 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Carl J. Madsen, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Avery Nathan Richardson, by his attorney, has filed for a rule on the clerk.

His attorney, Carl J. Madsen, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeal in Criminal Cases, 265 Ark. 964.

Á copy of this opinion will be forwarded to the Committee on Professional Conduct.

Purtle, J., not participating.


text:
    Billy Joe SKAGGS v. STATE of Arkansas
    697 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Pro Se Motion for Belated Appeal; denied.

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner was found guilty by a jury of rape and sentenced to a term of 25 years imprisonment in the Arkansas Department of Correction. No appeal was taken. Petitioner subsequently filed a petition and an amended petition challenging the conviction pursuant to Criminal Procedure Rule 37. The circuit court denied the petitions in an Order entered on June 5, 1985. A notation on the Order indicates that the clerk mailed petitioner a copy of the Order on the day it was entered. A notice of appeal was not timely filed, and petitioner now seeks a belated appeal.

Petitioner bases his motion for a belated appeal on the sole contention that he put a timely notice of appeal in the mail to the circuit clerk, but it never reached the clerk’s office.

On June 14, 1985, our criminal case coordinator received a letter from petitioner in which he indicated that he had filed a notice of appeal in circuit court. This letter cannot be considered proof of what petitioner actually mailed to the circuit clerk, however, because we have no means of verifying its contents or otherwise determining what may have been mailed to the clerk. It must be assumed that if petitioner had mailed the notice of appeal to the clerk, it would have been delivered by the post office. See Moore v. State, 285 Ark. 321, 686 S.W.2d 790 (1985). The Rules of Appellate Procedure, Rule 4 (a), provides that a notice of appeal shall be filed within 30 days of the entry of the Order of judgment. There is no extension of time occasioned by delays or loss in the mail. See Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984).

The bare allegation that a notice of appeal was mailed but not delivered is not good cause to grant a belated appeal. If it were, there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office.

Since the litigant who mailed the item has the burden of proving that he mailed it, it is advisable for persons mailing notices of appeal or other material which must be filed within a designated period to use certified mail, return receipt requested. A return receipt would provide proof sufficient to establish the date of mailing and the place and date of receipt.

Motion denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice.

text:
    Margaret DAVIS v. Dewey STILES, Director of Labor, and SEARCY PUBLIC SCHOOLS
    85-156
    698 S.W.2d 287 700 S.W.2d 369

      Supreme Court of Arkansas
    Opinion delivered November 4, 1985
    [Supplemental Opinion on Denial of Rehearing December 16, 1985.]

      David J. Manley, Legal Services of Arkansas, for appellant.

      George Wise, Jr., for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

Petitioner Margaret Davis applied for unemployment compensation after losing her job as a school bus driver, and was denied benefits. After remand by the Arkansas Court of Appeals, she was denied certain benefits for a reason unrelated to the first denial. The question on appeal is whether respondent, the Department of Labor, should be allowed to raise a wholly new challenge to a claimant’s application for benefits upon remand. The Court of Appeals affirmed the denial and we granted petitioner’s motion for review pursuant to Sup. Ct. R. 29(4)(b). We reverse.

The procedural history of this case illustrates the need for our holding that all the challenges to an unemployment compensation claim should be decided in the first instance. Petitioner’s first application for benefits was brought on November 11,1981. After a hearing, the Appeals Tribunal found that she had insufficient wages in her base period to qualify for a claim. The Board of Review affirmed the denial on March 8, 1982 and petitioner appealed to the Arkansas Court of Appeals. Respondent then filed a motion to remand, stating that it agreed that petitioner had earned sufficient wages and was thus “monetarily” qualified for benefits.

When the case was remanded, the respondent challenged the claim on the nonmonetary ground that petitioner had been discharged because of misconduct in connection with her work. The Employment Security Division subsequently denied eight weeks of benefits and reduced her maximum amount because misconduct was the reason for her discharge. In an appeal process spanning close to two and one-half years, the Appeals Tribunal, Board of Review and Court of Appeals affirmed the denial of benefits.

Petitioner contends that the determination of both her monetary and nonmonetary rights to benefits should have been made in the initial decision under Ark. Stat. Ann. § 81-1107 (c)(1)(A) and (B) (Repl. 1976), and we agree. The nonmonetary determination was not necessary in the first instance, respondent asserts, because it was first found that appellant had not qualified for benefits by earning the minimum amount of wages. Therefore, respondent states, the nonmonetary determination was left open. To allow such a process, however, would lead to the “piecemeal” litigation of claims which we meant to preclude by our holding in Stover v. Deere, 249 Ark. 334, 461 S.W.2d 393 (1970); and would result in claims remaining unsettled for needless periods of time, such as in this case which now spans four years.

In Stover, we said:

The statute requires that in the first instance both the monetary and the nonmonetary determinations be made “promptly.” Ark. Stat. Ann. § 81-1107(c)(1)(A) and (B). Similarly, notice of these determinations must be given “promptly” to the claimant. Id., (c) (3) (A) and (B). We are unwilling to allow the Commissioner to raise at this late date an issue that should have been promptly decided in the first instance or that should at least have been unmistakably reserved in the original determination. The claimants cannot now be fairly required to start all over again in their quest for benefits under the statute.

Obviously, a nonmonetary determination was not made in the first instance. Likewise, there was nothing “prompt” about the determination of the petitioner’s claim. This statute was written for the purpose of settling employment claims and furnishing compensation in an expeditious way to those who are entitled. Violations of the statute cannot and will not be tolerated.

Inasmuch as we reverse this case for violation of § 81-1107, we need not discuss the questions concerning the doctrines of res judicata and law of the case.

Challenges to an application for unemployment benefits must be made in the first instance in a prompt manner or be lost, “unless unmistakably reserved in the original determination”, Stover, supra.

Reversed.

Purtle, J., not participating.

December 16, 1985

Supplemental Opinion on Denial of Rehearing

Jack Holt, Jr., Chief Justice.

In its petition for rehearing, appellee asks that we reconsider our ruling that Ark. Stat. Ann. § 81-1107 (Repl. 1976 and Supp. 1985), when interpreted in light of the case law and legislative intent behind it, mandates that all challenges to a claim for unemployment compensation be raised in the first instance or be lost, unless unmistakably reserved. We deny the petition for rehearing but issue this supplemental opinion to amplify our decision.

Appellee urges a different ruling based on statutory interpretation, and the burden it contends this ruling will place on the Arkansas Employment Security Division. The pertinent statutory language is from § 81-1107(c)(1)(A) and (B), which state:

(c) Determination. (1) In General. (A) A monetary determination upon a claim filed pursuant to section 6(b)(1) [subsection (b)(1) of this section] shall be made promptly by the Director and shall include total wage credits as reported paid by each employer during his base period, and the identity of each base period employer. For a claimant who meets the wage requirements of section 4(e) [§ 81-11.05(e)] of this act, this notice shall include the beginning date of his benefit year, his basic weekly benefit amount, and the maximum amount of benefits that may be paid to him during the benefit year. For a worker who does not meet the wage requirements of section 4(e) [Sill 05(e)] of this act, the notice of monetary determination shall include the reason for such determination.
(B) A nonmonetary determination of a claimant’s right to waiting period credit or benefits shall be made under sections 4 and 5 [§§ 81-1105, 81-1106] of this act promptly upon his time, claiming such credit or benefits.

Although the statute divides the two determinations into separate findings, it does not require bifurcated proceedings on each issue as appellee argues. Monetary eligibility is considered first, at which point, if the claimant is found to be monetarily ineligible, we require the Employment Security Division to likewise raise any challenges to the nonmonetary eligibility or risk losing those challenges if the claimant succeeds in getting the monetary finding reversed. If the claimant is found monetarily eligible, then of course the nonmonetary determination would follow under the statute. The fact that the two determinations are separate findings under the statute does not lead to the conclusion that the Employment Security Division can secure a finding of monetary ineligibility, stop the proceedings at that point while the claimant appeals, and then upon a reversal challenge eligibility of the claimant on other grounds, forcing a second appeal by the claimant. The claimant’s appeal should be able to encompass all challenges the first time.

The fact that § 81-1107(c)(3)(A) and (B) have separate notice provisions for the monetary and nonmonetary determinations does not change this conclusion. The notices can be sent out together or as one notice to the claimant and employer so that the employer can inform the Director of the Department of Labor of all aspects upon which the claim may be challenged.

We have not required the Employment Security Division to proceed in all cases from a finding of monetary ineligibility to a determination of nonmonetary eligibility. We have only said that if a claimant is found monetarily ineligible and that decision is reversed by an appellate court, it is not “prompt” as required by § 81-1107(c)(1)(A) and (B) for the claimant to have to then proceed through the process again faced with a new challenge to his or her eligibility. It is only necessary to look at the results of this case, where the claimant has waited four years to receive a final determination of her rights to unemployment benefits, to see how the process utilized by appellee clearly defeats the purpose of the unemployment compensation law by not giving prompt relief to the unemployed.

The language we quoted from Stover v. Deere, 249 Ark. 334, 461 S.W.2d 393 (1970), made it clear long before this decision that both monetary and nonmonetary determinations must be made in the first instance in order to avoid piecemeal litigation of claims. We feel that language can be interpreted only one way.

The statement cited from Stover that the nonmonetary determination must at least be unmistakably reserved in the original determination does not allow the Employment Security. Division to make a practice of routinely stating for the record that the determination is reserved until the monetary eligibility is settled on appeal. Such a reservation must be in good faith and for an unavoidable reason which can be demonstrated at the time of the reservation.

Finally, it should be clear from our opinion that this decision applies to the ability of an appellate court to remand a case for further proceedings only so far as it involves a failure by the Employment Security Division to comply with this particular requirement.

Petition denied.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Richard Wayne SNELL v. STATE of Arkansas
    CR 85-109
    698 S.W.2d 289
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985

      Darrell Brown & Associates, by: John W. May, II; and Hawkins & Metzger, by: Jay P. Metzger, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, Richard Wayne Snell, was convicted of murdering Arkansas State Trooper Louis Bryant and sentenced to life imprisonment without parole. Snell has raised these three points on appeal: (1) a “death qualified” jury is unconstitutional; (2) a challenge to a juror for cause should have been sustained; and (3) an objection to the introduction of evidence of weapons in Snell’s possession but which he did not use in the commission of the offense should have been sustained. We find no reversible error in the proceedings, and thus we affirm.

1. Death Qualified Jury

Snell contends that, because several jurors were dismissed due to their scruples against the death penalty, he was denied a fair trial, citing Grigsby v. Mabry, 758 F.2d 226 (1985). He is aware of our rejection of that theory and of our rejection of the holding in Grigsby v. Mabry, supra, in Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985), and in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), but he invites us to reconsider our decisions. We decline to do so. We rejected a similar invitation in Harmon v. State, 286 Ark. 184, 690 S.W.2d 125 (1985).

2. The Challenged Juror

Upon voir dire, a prospective juror said she had formed an opinion that Snell was guilty, having seen newspaper and television accounts of the crime. She was rehabilitated somewhat by the prosecutor, but defense counsel persisted in moving that she be excused for cause. Ultimately the judge denied the motion because the prospective juror said “yes” when asked if she could follow his instructions. She was excused when the defense exercised its peremptory challenge. Having used all its peremptory challenges, the defense asked to be given more peremptory challenges. The court refused, but dismissed for cause every juror thereafter challenged by the defense.

While we have serious doubts about whether the juror in question was sufficiently rehabilitated or could have been sufficiently rehabilitated to escape a challenge for cause, we need not decide that issue. The appellant has not demonstrated that any juror who should have been excused sat in-the case. We will not reverse on this point unless the appellant demonstrated that he was forced to accept a juror against his wishes. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

3. The Weapons Cache

The evidence showed that the weapon used by Snell to kill Bryant was a .45 caliber pistol. Persons who arrived on the scene at De Queen, Arkansas, shortly after Bryant was shot observed Snell pulling away in his van towing a trailer. When he was stopped, shortly thereafter, by police officers in Oklahoma, Snell had a .45 caliber pistol stuck in his waistband, and he fired at the apprehending officers with a “mini 14,” an automatic weapon. A ballistics expert testified that the .45 caliber pistol found in Snell’s possession when he was arrested was the one which fired the bullet that killed Bryant. After the gun battle which preceded his arrest and after having been given a self-incrimination warning, Snell told a deputy sheriff that while he had not intended to harm those Oklahoma officers who arrested him, he had intended to “shoot that officer” in De Queen.

At the trial numerous weapons, which were found in Snell’s van at the scene of his apprehension, were introduced into evidence. They included a fully automatic mini-14 rifle with silencer, three hand grenades, three pistols with silencers, one of which was a machine pistol, or automatic weapon. Much testimony was admitted about these weapons, their characteristics, and how they operated although only two were known to have been used by Snell on the day he killed Bryant. The appellant contends the prosecution’s only purpose in introducing the other weapons was to show the appellant to be a bad person and thus to prejudice the jury.

The appellant cites Unif. R. of Evid. 403 which says, in part, that relevant evidence may be excluded if it is “. . . substantially outweighed by the danger of unfair prejudice. . .” He also cites U.S. v. Warledo, 557 F.2d 721 (10th Cir. 1977), in which it was held that automatic weapons found in the appellant’s possession, which had nothing to do with the crime charged, should not have been admitted. See also Cabbiness v. State, 241 Ark. 898, 410 S.W.2d 867 (1967); Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964).

The arsenal of weapons, which included hand grenades and automatic weapons with silencers, was relevant evidence of the element of premeditation and deliberation on the part of the appellant in the murder of an Arkansas state policeman and should have been admitted at trial. In Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), and Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), we approved the introduction of evidence that Swindler had three loaded pistols, a rifle and considerable ammunition in his vehicle when he killed a police officer. Swindler was an ex-convict and wanted for murder.

Snell told an attending physician he was a courier for a group, and since he was listed for “three minor felonies in Texas, he was to be considered armed and dangerous.” He had told an Oklahoma deputy sheriff that he meant to kill that man in De Queen. The loaded weapons were certainly evidence of an intent to use them if necessary.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Purtle, J., not participating.


text:
    Marvin BAILEY, Joe GLOVER, and George LANKFORD v. HARRIS BRAKE FIRE PROTECTION DISTRICT, et al.
    85-145
    697 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985

      Wilson & Patterson, P.A., by: Mike Wilson, for appellant.

      Larry D. Vaught, for appellee.
   Robert H. Dudley, Justice.

The Harris Brake Fire Protection District was created in 1980 by ordinance of the Perry County Quorum Court pursuant to Ark. Stat. Ann. §§ 20-923 to - 943 (Supp. 1985). In 1981, a suit was brought in chancery court seeking a judgment which would declare the district to be void because of failure to conform with the above cited statutes in forming the district. At that time, the constitutionality of the statutes was not challenged. The Chancellor upheld the formation of the district. This Court affirmed that decision. Langford v. Brand, 274 Ark. 426, 626 S.W.2d 198 (1981).

In 1984, a second suit was brought by the same plaintiffs, again seeking a judgment declaring the district to be void, but this time alleging that the cited statutes were unconstitutional. The Chancellor again refused to void the district. We affirm.

Professor Vestal had explained the distinction between claim preclusion and issue preclusion as separate facets of the concept of res judicata. His explanation is helpful in this case:

The concept of res judicata, which is not at all a simple one, encompasses at least two distinct facets. For the sake of clarity it is desirable to distinguish the foreclosing of further litigation on a cause of action (which may be called claim preclusion) from the preclusion of further litigation of an issue (which may properly be called issue preclusion).

Vestal, Preclusion/Res Judicata Variables, 1965 Wash. U.L.Q. 158 (1965).

Our decision in this case is based upon the well established law of the claim preclusion facet of res judicata. It bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Further, claim preclusion bars not only the relitigation of issues which were actually litigated in the first suit, but also those which could have been litigated but were not. Wells v. Arkansas Pub. Serv. Comm’n, supra; and Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983). In contrast, issue preclusion, or the collateral estoppel aspect of res judicata, is limited to those matters previously at issue which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). However, both types of preclusion are applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Lovell v. Mixon, supra.

In the case at bar it is clear that: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; and (4) both suits involved the same parties. The only issue sufficiently in doubt to merit discussion is whether both suits involve the same cause of action.

Two separate suits may be said to have such a measure of identity that they constitute only one cause of action when the validity of a statute is assumed in the first suit, and, as a result, certain rights or interests are created or protected; then, in the second suit, the same moving party or his privies, seek to have the statute declared unconstitutional in an attempt to destroy those very same rights or interests. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940). Here, the first suit sought to void the creation of the improvement district, but the validity of the statutes was never questioned. As a result of the first suit, the formation of the district was approved. Specific interests and rights were automatically created, such as the authority to levy and collect taxes or fees. The same moving parties, in the second suit, again seek to destroy those interests and rights, this time by claiming that the statutes are unconstitutional. Both suits involve the same cause of action.

The appellants had a full and fair opportunity to litigate the constitutionality of the statutes complained of in the first suit but did not do so. They raised the issue only after they disagreed with the result of the first suit. Such an attempt to split a cause of action and have piecemeal litigation is not permissible. See Chicot County Drainage Dist. v. Baxter State Bank, supra.

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    Tracy Kent NOVAK v. STATE of Arkansas
    CR 85-106
    698 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985
    [Rehearing denied December 9, 1985.]

      Hixson, Cleveland & Rush, by: Coy J. Rush, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Steele Hays, Justice.

Tracy Kent Novak was convicted of the capital felony murder of Bobby Joe Whitson and sentenced to life without parole. Six points of error are argued on appeal. We affirm the judgment.

On the evening of April 11,1984, Tracy Novak, Bobby Joe Whitson, Darren Landis and Jeff Underwood were drinking at a tavern near Paris, Arkansas. They left the tavern at midnight in Whitson’s truck and went to Whitson’s house where Jeff Underwood went upstairs and went to sleep. He testified that Darren Landis woke him about 2:00 a.m. and told him Tracy had shot Bobby Joe Whitson. Underwood went downstairs and saw Whit-son’s body lying on a bed with a shotgun wound in the neck. Novak, he said, told him he had shot “the son-of-a-bitch.” Underwood watched Novak put Whitson’s stereo and his two shotguns in Whitson’s truck and Novak proposed the three of them sell the truck in Oklahoma and “take off for somewhere else.” Underwood and Landis chose to be taken home and en route they were stopped by a Paris policeman. Novak was charged with driving while intoxicated and, subsequently, with the capital murder of Bobby Joe Whitson. Whitson’s billfold was found under the driver’s seat of the truck when Novak was arrested. Novak told the police he had Whitson’s permission to use the truck.

That afternoon, after being given the Miranda warnings, Tracy Novak signed a confession that he had killed Bobby Joe Whitson after Darren Landis told him there was a lot of stuff in the house they could steal. Novak said he got a shotgun from the closet, loaded it and shot Whitson.

I

Novak claims as a matter of law he could not have had the requisite intent to commit capital felony murder due to intoxication. Because he registered. 10 on the breathalizer Novak argues he was legally intoxicated and the trial court should have reduced the charge to manslaughter. We do not sustain the argument as there was ample testimony that Novak was rational and coherent. The fact that he was shown by breathalyzer test to register the minimum intoxication to support a charge of DWI does not establish as a matter of law that he lacked the ability to form an intent to commit murder. That was a jury question and the court was correct in so holding. Bailey v. State, 263 Ark. 470, 565 S.W.2d 603 (1978).

II

Novak contends the evidence of robbery or burglary was insufficient to support a conviction for capital felony murder — there being no proof he entered or remained unlawfully in Whitson’s home without permission, and no proof of the value of the property taken, a necessary element of theft. Since robbery is defined in Ark. Stat. Ann. § 41-2103 (Repl. 1977) as occurring when one uses or threatens to use force with the purpose of committing theft, Novak contends the value of the property must be shown. We find no merit in the argument, as the requirements of capital felony murder are met if the accused merely attempts to commit one of the felonies included in the statute (Ark. Stat. Ann. § 41-1501(1)(a) (Repl. 1977)). And robbery may occur irrespective of the value of the property obtained or, indeed, whether any transfer of property takes place. See Commentary, § 41-2103. Here, there was direct evidence that Novak placed a stereo and two shotguns in Whitson’s truck and circumstantial evidence that Whitson’s billfold and truck were also the objects of the crime. Novak’s confession further supports the conclusion that his reason for killing Whitson was to rob him of his belongings. We find the proof sufficient to sustain the conviction. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

Ill

The next point involves the issue of death qualified juries. We have repeatedly rejected the view taken in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985). Further discussion is pointless. See Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) and Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

IV

The fourth assignment of error is: The Jury Selection Process Was So Flawed That It Denied The Appellant Due Process And A Fair Trial.

A

Appellant relies on three incidents during voir dire. One concerned a prospective juror, Ms. Linda Horne, who had served previously as a juror in civil and criminal cases. Defense counsel asked Ms. Horne if she had found it hard to be impartial when she had served as a juror (Record, p. 285) and the court sustained an objection from the state on the grounds that jury deliberations were privileged. Novak argues he was denied the opportunity to determine whether Ms. Horne was prejudiced. However, the record demonstrates that at a subsequent point in voir dire counsel was permitted to ask Ms. Horne the identical question (Record, p. 287) and evidently was satisfied with her response (“No, sir”), as he pursued the matter no further. We find no error here.

B

Novak maintains the trial judge would not permit him to ask prospective jurors whether they would vote for acquittal if any of the elements of a charge were not proved by the state. He submits the trial court abused its discretion by not allowing questions regarding beliefs about the evidence to be presented, citing Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). One question was: “If the court instructs you that the crime charged includes several elements, will you vote for acquittal unless you are satisfied that the proof establishes all the elements?” This question drew an objection because it bound the juror to vote for acquittal, which the court sustained. We have said that such questions are improper.

The other question (more in the form of a declaration) was: “And in this case, the burden is on the state to show that the defendant committed burglary and/or robbery and murder; the state must show all of that. And if they do not then the defendant would not be guilty of capital murder?” The prosecutor objected to the form of the question, which the trial judge sustained and counsel moved to another topic with a request that his objection be noted. We do not find an abuse of the trial court’s broad discretion in either instance.

C

The other incident occurred as the trial judge was questioning the panel in general about the case and whether anyone on the panel knew the facts or the principals. Appellant urges a mistrial should have been granted. We quote from the record:

BY THE COURT:
All right. The defendant in the case is Tracy Kent Novak. Will Mr. Novak please stand and face the jury?
(Defendant complied.)
BY THE COURT:
Thank you. Have a seat. Are any of you related by blood or marriage to Tracy Kent Novak?
(No response.)
BY THE COURT:
Are you acquainted with him?
(Hand raised.)
BY THE COURT:
Yes?
MR. KEARNEY:
I have arrested him several times in the past.
BY THE COURT:
Would the fact that you are acquainted with him, would that affect your decision in the case?
MR. KEARNEY:
It probably would.
BY THE COURT:
All right, I will excuse you.
BY THE COURT:
All right, is anyone else acquainted with him or any member of his family?
MR. RUSH:
Your Honor, if I may approach the bench. Tom.
(Counsel approached the bench and the following was said outside the hearing of the prospective jurors:)
MR. RUSH:
I would like to move for a mistrial based on the statements that the juror said that he had arrested the defendant.
MR. TATUM:
I know what the motion is, your Honor. I can imagine. MR. RUSH:
I would like to move for a mistrial based on the statements of the juror, that he has arrested the defendant.
BY THE COURT:
Any response.
MR. TATUM:
Your Honor, I think that is why we have voir dire, to see if there is any prejudices.
BY THE COURT:
That is the way I understand it too. Your motion will be denied.
MR. RUSH:
Well, your Honor, of course the juror has already left the courtroom. I would like to have asked him what he arrested the defendant for — that would indicate that he might have arrested him for a traffic ticket or whatever. But at any rate, I save my exceptions on the motion for a mistrial.
BY THE COURT:
All right.
(Proceedings returned to the hearing of the prospective jurors.)

We have said in a myriad of cases that mistrial is a drastic remedy and rests with the discretion of the trial judge. It should be granted only when the prejudice is so manifest that the trial cannot in justice continue. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).

We have upheld the trial court in similar circumstances where, by chance remark, it was brought out that the defendant had had prior arrests, even prior convictions, where the comment was inadvertent. In McFarland v. State, supra, we said the defendant had received a fair trial notwithstanding repeated references to other crimes. We noted the remark of one witness that he was still facing criminal charges in another county “like the others” (referring to the defendants), did not require a mistrial because the remark was not deliberate, nor were the other crimes identified. The same can certainly be said of the comment here, which referred merely to unidentified “arrests.”

In Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982), we affirmed the trial court’s denial of a mistrial motion in a rape trial where one police officer mentioned seeing what he believed to be controlled substances in the defendant’s bedroom and another officer said he remained in the house “collecting evidence on the other charge.”

In Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982) a psychiatrist for the prosecution, testifying on the defendant’s sanity, when asked what he relied on for his opinion, mentioned certain test results and added, “I also had access to his prison records.” We refused to reverse the trial court’s denial of a mistrial motion.

In Hogan v. State, 284 Ark. 250, 663 S.W.2d 756 (1984), we upheld the trial court’s refusal to order a mistrial where a police officer, asked by the prosecutor if these fingerprints were the first taken of the defendant, answered, “No, sir, that’s all I took. We do have a prior arrest record on him, which we do have a fingerprint on.” We found no abuse of the trial court’s discretion.

In reviewing motions for a mistrial we have observed that where the evidence of guilt is overwhelming, marginal errors do not require reversal. McFarland v. State, supra; Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). From a thorough review of this record we are satisfied the appellant received a fair trial and the evidence against him permits not the slightest doubt of guilt. His own confession, which he does not attack, proves the motive and that the crimes were performed with deliberation.

Some indication of the minimal impact of the mention of arrests by the prospective juror lies in the fact that counsel delayed objecting to the remark until the court had asked additional questions, excused the prospective juror, and he had walked from the courtroom. Moreover, on appeal Novak argues in the alternative that, denied a mistrial, he was entitled to an admonition to the other panel members to disregard the remark. Doubtless so, but having failed to ask for one he cannot now complain on that score.

V

Another argument is that the trial court should not have permitted Deputy Tim Markham to testify in rebuttal that he heard Tracy Novak tell his grandmother, “I killed the boy.” Novak argues that Markham had testified at a pre-trial hearing that he did not take any statements from Novak and did not overhear Novak make any statement to police officers. Those issues go to weight and not to admissibility.

A further ground for the argument is that defendant’s discovery motion requested any oral statements made by Novak to Markham or to any other police officer and the remark Deputy Markham claimed to have overheard was not given to the defense in discovery. However, as the state points out, that was not offered as a basis for the objection at the trial and, therefore, cannot be raised initially on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

VI

The final point for reversal deals with the admission of a photograph of the body of Bobby Joe Whitson which Novak insists is inflammatory. The prosecutor offered several color photographs and the trial judge limited the state to one. Whit-son’s body is in bed, covered by a blanket to the upper chest. There is an area of the neck just below the ear where No. 6 shotgun pellets have entered the body and caused considerable bleeding from the numerous entry points. The face is turned away but some bleeding from the nose is clearly visible. Even so, in a relative sense the scene is not particularly gory. We have said the admission of photographs falls within the sound discretion of the trial court and that discretion will not be disturbed on appeal unless abused. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). The trial court’s discretion in admitting the photograph was not abused.

VII

We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Robert CORTEZ v. INDEPENDENCE COUNTY, et al.
    85-125
    698 S.W.2d 291
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985

      William C. Adair, for appellant.

      Rose Law Firm, A Professional Association, by: M. Jane Dickey, Les R. Baledge, and David L. Williams, for appellees.
   David Newbern, Justice.

The appellant, Robert Cortez, as a taxpayer, sought to enjoin the Independence County, Arkansas, Public Health and Education Facilities Board from issuing educational facilities bonds to finance construction and physical improvements at Arkansas College in Batesville. The appellant also sought a declaratory judgment that the board’s resolution, made pursuant to Ark. Stat. Ann. §§ 20-1701 through 20-1720 (Repl. 1962 and Supp. 1985), violated Ark. Const. art. 2, § 24; art. 12, § § 4,5; and art. 16, § 1, as well as the First Amendment to the U. S. Constitution.

The issues raised by the appellant are: (1) whether the bonds lend the credit of Independence County in violation of Ark. Const. art. 12, § 5 and art. 16, § 1; (2) whether the bonds have a valid public purpose as described in Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984); and (3) whether the bonds constitute impermissible state aid to religion in view of Arkansas College’s ties with the Presbyterian Church. We hold the chancellor was correct in ruling for the appellees on each issue, and thus we affirm.

1. Pledge of Credit

This point can be handled summarily by noting that the bonds state on their face that they do not pledge the faith and credit of the county. Indeed, that is a requirement of Ark. Stat. Ann. § 20-1710 (Supp. 1985) which is a part of the statutory scheme pursuant to which the bonds were issued.

These bonds are to be paid by revenue (student fees and tuition) generated by the college. While the Public Facilities Board is liable on the bonds, Independence County is not.

In two recent cases we have held that it is enough to assure compliance with Ark. Const. art. 16, § 1 that the bonds state they do not pledge the credit of the state or the political subdivision which created the agency issuing the bonds. Turner v. Woodruff, 286 Ark. 66, 689 S.W.2d 527 (1985); Murphy v. Epes, supra.

2. Public Purpose

In Ark. Stat. Ann. § 20-1702 (Supp. 1985) the General Assembly expressed its determination that adequate “educational facilities” are essential to the public welfare and that public financing is an essential alternative means of financing them. The definition of “educational facilities” is found in § 20-1703. The General Assembly, in 1981, twice amended § 20-1703, purporting in each instance to add a subsection “u.” The first amendment, Section 2 of Act 528 of 1981, contained a long definition or description of facilities for post-secondary education. It divided them into sub-subsections entitled “Approved Private Institution” and “Approved Public Institution.” The second amendment was Section 2 of Act 827 which is now codified as § 20-1703 (v). It provides:

[(v)] (u) The term “educational facilities” means real, personal and mixed property of any and every kind intended for use by an educational institution in furtherance of its educational program, including, but not limited to, dormitories, classrooms, laboratories, athletic fields, administrative buildings, utilities, equipment and other property for use therein or thereon.

We need not be concerned about which of these 1981 additions is the “real” subsection “u” or “v” or which of them should have been codified. The important point is that either of them would include Arkansas College and the project to be financed there. Nor is there any indication that by creating the second amendment the General Assembly intended to withdraw participation of private colleges. If Act 827 repealed Act 528 and was substituted for it, it was substituted in place of Act 528’s references to both “Approved Private Institution” and “Approved Public Institution.” If we were to hold that private institutions were thus eliminated from participation we would have to say public institutions were eliminated as well, and that was obviously not the legislative intent.

Further evidence of legislative approval of . bonds for financing higher educational facilities is found in § 20-1704.1 which empowers public facilities boards to include “facilities for post-secondary education” in public facilities projects.

In addition we made it clear in Turner v. Woodruff, supra, that education, in general, is a legitimate public purpose.

3. Religious Establishment or Entanglement

Arkansas College is unquestionably related to the Presbyterian Church. It was founded by that denomination, and a majority of the members of its board are Presbyterians. There is a chapel on the campus where the minister, who is employed by the College, conducts weekly religious services. A three-hour course called “Introduction to the Bible” is required for graduation. It is otherwise a typical small liberal arts college. The three-hour Bible course constitutes only 2 percent of the 128 credits required for graduation.

The project to be financed by the bonds includes such items as renovating buildings, asphalting parking lots, and fencing. Perhaps the most questionable item from an “establishment” or “entanglement” perspective is that a building known as “Brown’s Chapel” will have its parking lot resurfaced. It is a building which is devoted to many educational purposes, but it contains the room with 80 seats in which weekly religious services are held. Testimony showed that weekly attendance usually amounts to six students. The building also has a 550-seat auditorium and houses other activities such as music instruction. The large auditorium is available for rental to the public for lectures, theatrical performances and other such activities.

Ark. Const, art. 2, § 24, says in part, “. . . no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship above any other.” Aid to Arkansas College gives no preference to the Presbyterian faith over any other. Any college sponsored by a church would be entitled to the same kind of bond issue if all statutory requirements were met.

A more serious question arises under the First Amendment to the U. S. Constitution and the U. S. Supreme Court decisions interpreting it. The appellant relies on Lemon v. Kurtzman, 403 U.S. 602 (1971), for his argument that issuance of the bonds will result in “excessive entanglement” of government and religion. That case involved direct subsidies paid by Rhode Island and Pennsylvania to secular schools. The Supreme Court particularly noted the danger in supporting institutions sponsored by churches in which impressionable elementary school students are taught “secular” subjects in an atmosphere pervaded by religion.

On the other hand, in Hunt v. McNair, 413 U.S. 734 (1973), the Supreme Court rejected a First Amendment challenge to South Carolina’s legislation permitting assistance to higher education institutions in financing capital improvements. At issue in that case was financial assistance to a Baptist-sponsored college through the issuance of revenue bonds by the South Carolina Educational Facilities Authority. The South Carolina legislation, which was very similar to the Arkansas legislation discussed above, stated its purpose was to assist “institutions for higher education and the construction, financing and refinancing of projects.” S. C. Code Ann. § 22-41.4 (Supp. 1971). See 413 U.S. at 736.

As the appellee points out, the most significant difference between the Hunt case and this one is that Baptist College at Charleston’s student enrollment was 60 percent Baptist while the Presbyterian enrollment of Arkansas College is only 7.5 percent. It is clear to us that the U. S. Supreme Court would not regard the statutes authorizing the bonds in question here as being violative of the First Amendment.

The Supreme Court’s test is:

First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . , finally, the statute must not foster “an excessive government entanglement with religion.”
[Lemon v. Kurtzman, supra, 403 U.S. at pp. 612-613; Hunt v. McNair, supra, 413 U.S. at p. 741.]

We do not ignore the argument that the tax savings on public revenue bonds frees money which might otherwise have to be spent on “secular” improvements for possibly “sacred” uses. Nor do we lightly put aside the argument that a building in which religious services are held will be enhanced by the project. However, we are.convinced the U. S. Supreme Court cases require us to say these arguments are insignificant in view of the primarily secular purpose of the legislation and its effect here which is to foster liberal arts higher education rather than the establishment of any particular religion or of religion in general.

We have reviewed the Supreme Court’s most recent cases in this area and find them to be irrelevant as they address situations far more akin to Lemon v. Kurtzman, supra, than to Hunt v. McNair, supra, and the case before us now. See Aquilar v. Felton, No. 84-237 decided July 1, 1985, and School District of the City of Grand Rapids v. Ball, No. 83-990, decided July 1, 1985.

Affirmed.

Purtle, J., not participating.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting.

Independence County obtained a low-interest loan for Arkansas College, a private Presbyterian institution. Article 12, section 5 of the Arkansas Constitution provides:

No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual. (Italics supplied.)

The first sentence of Amendment 13 to the Arkansas Constitution reads: “Neither the State nor any city, county, town or other municipality in this State, shall ever lend its credit for any purposes whatsoever . . . .” The majority has ignored the violation of these provisions by stating that the county has not pledged its faith and credit by issuing revenue bonds. That, however, is not the only prohibition of the constitution.

Not all states have so easily bypassed their similar constitutional provisions. The Idaho Constitution provides:

The credit of the state shall not in any manner, be given, or loaned to, or in aid of any individual, association, municipality or corporation; nor shall the state directly or indirectly become a stockholder in any association or corporation ....

In Village of Moyie Springs, Idaho v. Aurora Mfg. Co., 353 P.2d 767 (Idaho 1960), a revenue bond case, the Supreme Court of Idaho said:

It must be clear to the ordinary mind on reading this language, that the framers of the Constitution meant to cover all kinds and character of debts and obligations for which a city may become bound, and to preclude circuitous and evasive methods of incurring debts and obligations to be met by the city or its inhabitants.

Article 8, Section 4 of the Ohio Constitution provides:

The credit of the state shall not, in any manner, be given or loaned to, or in aid of, any individual association or corporation whatever; nor shall the state ever hereafter become a joint owner, or stockholder, in any company or association in this state, or elsewhere, formed for any purpose whatever.

The Supreme Court of Ohio considered this provision, and others similar to those in the Arkansas Constitution, in a case involving two revenue bond issues: one, to obtain credit for a private corporation, and the other, an issue by a public corporation to aid a private corporation for profit. The court said:

... as to each loan, we have a situation where the commission proposes in effect that ‘the credit of the state shall *** be given or loaned to, or in aid of a private ‘corporation.’ . . . The Ohio Constitution specifically states this ‘shall not, in any manner’ be done.

In conclusion the court stated:

We regret the necessity of disagreeing with the legislature and executive branches of our government but our duty under the constitution is clear. We are unanimously of the opinion that the proposed borrowing and lending by the commission in the instant case would represent a giving and loaning of the credit of the State of Ohio in aid of private interests and are prohibited by the express words of . . . the Ohio Constitution.

Saxbe v. Brand, 176 Ohio St. 44, 197 N.E. 2d 328 (1964).

The Nebraska Constitution provides: “The credit of the state shall never be given or loaned in aid of any individual, association, or corporation.” Neb. Const. Art. 8 § 3. The Nebraska Supreme Court interpreted this provision in Beck v. City of York, 164 Neb. 223, 82 N.W.2d 269 (1957), a revenue bond issue to aid a private corporation. It said:

It is true that the revenue bonds are not a general liability of the city and they are not subject to payment through the exercise of the taxing power. But they do cast burdens upon the city with reference to their issuance and payment. The city and its officers are charged with the duty of fixing and collecting the rentals from which the revenue bonds are to be paid. . . The loan of its name by a city to bring about a benefit to a private project, even though general liability does not exist, is nothing short of a loan of its credit. The use of the city as a payer of the bonds is intended to give respectability to them because of the general acceptability of cities as a source of bond issues in financial markets. It is a loan of the credit of the city within the meaning of the constitutional prohibition. (Italics supplied.)

We have the same situation before us: Independence County is directly authorized by the state, pursuant to Act 142 of 1975, to obtain a loan using its credit for a private church institution.

In this case we do not have the usual legislative pronouncement that the private enterprise serves a public purpose. For instance revenue bonds issued for a housing project, were justified by a legislative statement that the public would be served since low income families would benefit. Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). The majority simply concludes “we need not be concerned . . .” because all educational institutions, private religious ones, as well, serve a public purpose.

The Arkansas General Assembly passed a provision in Act 528 of 1981 expressly including private institutions in its definition of “education facilities” as used by Act 142 of 1975. It also restricted the use of public funds to educational programs with a secular purpose. But 11 days later this provision was repealed and a new definition of “education facilities” was substituted which expressly omitted the reference to private institutions and the limit of the use of public funds. Act 827 of 1981. This is the act that controls. Roberts v. Tice, 198 Ark. 397, 129 S.W.2d 258 (1939). So we have no legislative declaration that a private school can share in bonds to be issued for educational institutions. Nor do we have a restrictive clause. Does the majority presume to include private schools on its own? It took a constitutional amendment to make industry a public matter. Ark. Const. Amend 49.

A purely private enterprise cannot be made a public one without some pronouncement by the general assembly. In Turner v. Woodruff, supra, we said: “What constitutes public purpose is for the General Assembly to determine.” The fact that Arkansas College is also a liberal arts college, serving its community well, does not make it an institution of the public. Nor does it matter that the aid consists only of lending credit or obtaining a loan.

I find no mention of private schools in the Arkansas Constitution. Indeed, all provisions speak of aiding “common” or public schools. Article 14, section 1 provides that the General Assembly can make laws for the support of common schools. Amendment 53 provides “the State shall ever maintain a general, suitable and efficient system of free public schools . . .” Not only is there no duty to assist private schools financially, it is prohibited. Article 12, Section 5 prohibits obtaining credit for or loaning credit to any corporation, association, institution or individual. If a private school is not an institution, what is it? The majority has simply decided on its own to approve financial aid to private church schools.

Moving to the question of religion, the Arkansas Constitution is more expansive than that of the First Amendment to the United States Constitution. Two provisions read:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship above any other.
Protection of Religion. Religion, morality and knowledge being essential to good government, the General Assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship. (Italics supplied.)

Art. 2, §§ 24, 25.

Two things are said in these provisions: the right to worship without interference is recognized and, the legislature shall enact laws to protect that right. Where does it say private religious institutions shall be aided? Where is the hint of approval of direct or indirect financial aid by the state or local government to a private church school? Is the majority saying that since all private church schools can qualify, these constitutional provisions condone it? That is an inconceivable interpretation of these provisions of the Arkansas Constitution, notwithstanding the fact another constitutional provision plainly prohibits aid to private institutions. Art. 12, § 5.

Finally, the majority concludes that since the United States Supreme Court would approve this bond issue, they must, citing Hunt v. McNair, 413 U.S. 734 (1973). No doubt the United States Supreme Court takes the same benign attitude towards revenue bonds that the majority does. But in the Hunt case the Supreme Court emphasized that the state legislation in question contained a provision prohibiting any use of the bond money for “any facility used or to be used for sectarian instruction or as a place of religious worship. . . nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.” Also emphasized by the court was that the lease agreements executed in that case obligated the institution to restrict the benefits to education programs with a secular purpose. The majority ignores these crucial factual differences between Hunt and the instant case. Act 528 of 1981 had a similar restriction and that might have satisfied the U. S. Supreme Court; but it was repealed 11 days later by Act 827. The Hunt case cannot, in my judgment, be used as justification for this bond issue.

Arkansas College is a private church college; it cannot be made something else. It can teach, flourish and grow without fear of any interference from the government. Indeed, our constitutions guarantee that right. Where should such schools get money to operate? From private individuals or loans from private institutions; certainly, not from the government. No citizen should be required to pledge support to a private religious institution. Yet that is the effect of this decision. That is what we have come to with this revenue bond business.

       Revenue bonds are not constitutional. This has been my position since Purvis v. City of Little Rock, 282 Ark. 102, 110, 667 S.W.2d 936, 940 (1984) (Hickman, J., concurring.). Some revenue bonds are outright frauds on the public. For example, bonds issued to finance the Justice Building, to be paid for with “rent” from the state agencies occupying the building are a mockery of the bond provisions of the Arkansas Constitution. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955); see also Wells v. Clinton, 282 Ark. 20, 666 S.W.2d 684 (1984). I will change my position when the constitution is changed. Amendment 62 to the Arkansas Constitution, approved by voters on November 6, 1984, which repeals inconsistent provisions in Amendments 13 and 49, as well as other amendments, makes no provision for revenue bonds, and may well have absolutely outlawed them.


text:
    Larry Jack NATION v. STATE of Arkansas
    CR 84-28
    697 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985

      Darrell E. Baker, Jr., for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Larry Jack Nation has petitioned for permission to proceed in Cross Circuit Court for post conviction relief pursuant to Rule 37.2. The petition alleges that Larry Jack Nation pled guilty to burglary and theft of property, receiving a sentence to consecutive prison terms totalling forty years. He alleges the guilty pleas were not supported by a factual basis as required by Rule 24.6 of the Arkansas Rules of Criminal Procedure, that he is in fact innocent of the charges.

Petitioner further alleges that counsel appointed to represent him did not challenge the failure of the circuit court to establish a basis for the guilty pleas and, hence, was ineffective.

We will withhold a decision on the petition to give petitioner an opportunity to obtain a copy of the transcript of the hearing at which his pleas were entered and attach such transcript as an exhibit to his petition.

It is so ordered.

Purtle, J., not participating.