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

text:
    Delbert DEAN v. STATE of Arkansas
    CR 74-174
    522 S.W. 2d 421
    Opinion delivered April 28, 1975
    [Rehearing denied May 27, 1975.]

      Don Langston, Public Defendant, by: Hubert Graves, Deputy, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst., for appellee.
   Conley Byrd, Justice.

The State charged that the appellant, Delbert Dean, committed the crime of false pretenses on or about August 20, 1973, by making false and fraudulent pretenses and representations, and obtained thereby $2,500.00 from one Billy J. Helms.

At the trial Helms testified that he and the appellant worked together, that the appellant talked of profits he made buying and selling cattle with a Mr. Whitmire, and that he asked appellant to invest his money in cattle. The appellant said he would first have to obtain Mr. Whitmire’s approval. The appellant later said that Mr. Whitmire approved and Helms tendered the money to the appellant.

The appellant later told Helms about the cattle he had bought and that two had “calved”. Weeks later Helms needed money for car repairs and appellant told Helms to have the work done, that appellant would sell the calves and would bring Helms the money.

Some two months later when appellant’s employment had been terminated and no money was forthcoming, Helms became suspicious. After twice attempting to find the cattle by following appellant’s directions, Helms contacted appellant about pointing the cattle out to him. Helms, some of Helms’ relatives, Sheriff Cauthron of Sebastian County, and appellant went to South Sebastian County for appellant to point out Helms’ cattle. They walked out in a pasture where there were some cattle. Appellant said he could not say which were Helms’ cattle and the others waited while he went to a house to get the man who could. He returned saying the man was not at home.

The State, over defendant’s objection, produced Mrs. Hamilton who was at the house and who testified that appellant did not ask about cattle, but said he was “stuck”.

The jury found the defendant guilty and fixed his punishment at three years in the Arkansas Department of Corrections. From the judgment and sentence thereon appellant appeals and assigns as error the following points.

“POINT I. The Court erred in refusing to direct a verdict for the defendant at the close of the State’s case because there was no proof of a misrepresentation of a fact which existed on or before August 20, 1973.

POINT II. The Court erred in refusing to direct a verdict for the defendant because there was no proof that any fact represented by the defendant was untrue.

POINT III. The Court erred in refusing to give the second paragraph of Defendant’s Requested Instruction.

POINT IV. The Court erred in permitting the Prosecution to adduce evidence by one witness on direct examination that the defendant went up to a house to get someone to point out which cattle in a pasture were owned by the prosecuting witness, and returned saying the man who could identify the cattle was not there; and, then permitting the State to adduce evidence on direct examination by another witness - a woman who was in the house - that the defendant came to the house, did not ask about cattle, but said that he was ‘stuck’ when the incident referred to occurred two and one-half months after the offense charged was alleged to have happened was a collateral matter.”

POINTS I and II. We find no merit in appellant’s contention that there was no proof of the misrepresentation of an existing fact. Helms testified that appellant represented that he was in the cattle business with a Mr. Whitmire and that they had some cattle at that time. When Helms indicated a desire to make a profit in the cattle business, appellant stated that he would have to consult with Mr. Whitmire about Helms going in business with them. Subsequently, but before receiving the $2,500.00, appellant told Helms that Mr. Whit-mire had said it would be all right for Helms to go in the cattle business under the arrangements appellant had discussed. After appellant had failed to point out the cattle to the sheriff, he had a conversation with Tom Robertson, Helms’ lawyer. Tom Robertson testified as follows:

“Q. And what conversation did you have at that time?
A. Well, I asked Mr. Dean what was going on. I told him that I was concerned about my client’s money.
Q. Did you have knowledge at this time of the weekend transaction down at Greenwood?
A. Yes, my client had advised me of that, and I confronted Delbert with this. And at that time he told me that there weren’t any cattle. I asked him, I said, ‘well, Delbert, what did you do with the money?’ and he said ‘I don’t know what I did with the money.’ I said, ‘you didn’t buy anything?’ ‘I just spent the money, I’m always needing money.’ And he also advised me that he was not in the cattle business with Albert Whitmire, and he admitted that the cattle he had shown them in Greenwood were not his cattle. As I recall, he didn’t know whose cattle they were.”

Albert Whitmire palled as a witness by appellant, testified on direct that he did not remember any conversation with appellant about buying any cattle for someone else.

We hold that the foregoing proof constituted substantial evidence to go to the jury on the misrepresentation of an existing fact.

POINT III. Appellant specifically asked the trial court to give the last paragraph of his requested Instruction No. 1 which provides:

“You are instructed that the misrepresentation cannot relate to future conduct even if it is accompanied by a present intention not to perform the promise.”

The trial court refused the request and instructed the jury as follows:

“Under the law of our State the crime of false pretense is defined as follows:
‘Every person who with intent to defraud, cheat or avoid payment shall designedly by oral false pretense as to an existing or past fact, or state of facts, obtain any money, personal property or other valuable thing from another person shall be deemed guilty of larceny.’”

We have consistently construed our false pretense statute, Ark. Stat. Ann. § 41-1901 (Repl. 1964), to hold that any misrepresentation or assurance in relation to a future transaction, may be a promise or covenant or warranty, but cannot amount to a statutory false pretense. See McKenzie v. State, 11 Ark. 594 (1851), Kerby v. State, 233 Ark. 8, 342 S.W. 2d 412 (1961), and Ross v. State, 244 Ark. 103, 424 S.W. 2d 168 (1968). Consequently, the instruction offered correctly stated the applicable law. With reference to the giving of instructions correctly stating the applicable law, in Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972), we said:

“We recognize that the trial court is not required to charge the law upon a question in every possible manner in which a correct statement of it may be prepared by counsel, but the law must be so declared that the jury may not be in doubt as to the law of a particular question as applied to the facts of the case. DeShazo v. State, 120 Ark. 494, 179 S.W. 1012. The instructions must fully and fairly declare the law applicable to any defense as to which the defendant has offered sufficient evidence to raise a question of fact. Cox v. State, 116 Ark. 588, 173 S.W. 187. See also, Barnhardt v. State, 169 Ark. 567, 275 S.W. 909. Even if the court’s instructions could be said to have covered the matter in a general way, it is reversible error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, unless it affirmatively appears that no prejudice resulted.”

The State here proved not only the alleged misrepresented facts but also introduced evidence to show that appellant received the money upon a promise to do a future act. Since the alleged misrepresented facts were somewhat disputed by appellant’s witness Whitmire on cross-examination, we cannot say that no prejudice resulted because of the trial court’s refusal to give the requested instruction. Therefore we must hold that the trial court erred in refusing to give the requested instruction.

POINT IV. We find no merit in this contention. The testimony of Mrs. Hamilton was admissible to show appellant’s fraudulent scheme. See Kerby v. State, supra.

Reversed and remanded.

George Rose Smith, J., dissents and Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the majority opinion. There was far more evidence introduced relating to Dean’s failure to carry out promises to do acts in the future than there was bearing upon his misrepresentation of an existing fact. This evidence was admissible as bearing upon the fraudulent intent of Dean in obtaining money from Helms by misrepresenting fact, not intentions. Furthermore, it would be difficult, if not impossible, to separate the testimony to keep out any that bore upon Dean’s allegedly false representations and upon his conduct at the time and thereafter, so that the jury would understand that a misrepresentation as to one’s present intention to do something in the future was not the misrepresentation of an existing fact. Somewhere in the course of the proceeding, the defendant was entitled to have the effect of that testimony limited in a manner the jury could understand without having to interpret the meaning of the words “an existing fact or past fact, or state of facts”. This interpretation has often been difficult even for lawyers and judges, who are supposed to have a great deal more education and insight in that respect than most jurors.

I think the dissent puts too much emphasis on a part of appellant’s objection to the failure to give the instruction. He requested a correct instruction and stated that it was not covered by other instructions. In addition, he objected that failure to give the instruction would permit the state to argue that “a present intention is a material fact”. (Emphasis mine.) In his brief here, the appellant points out not only that the state might argue in closing that that was a misrepresentation as to future conduct and that, at the time of this misrepresentation, appellant had a present intention not to perform, but, aptly and pertinently, that the jury might so find. And it seems to me that it might well do so, without the matter being argued by the prosecuting attorney at all.

Consequently, as I view the matter, something more than an abstract statement and something more important than restriction of closing argument were involved.

George Rose Smith, Justice,

dissenting. In State v. Ross, cited by the majority, we reversed the judgment because-the trial judge had affirmatively instructed the jury that a culpable misrepresentation can relate to future conduct if accompanied by a present intention not to perform the promise. We had no choice except to reverse, because, as we pointed out, it is the settled rule that one’s promise to do a future act which he does not actually mean to do is not a criminal false pretense.

In Ross the trial judge gave the jury bad law, which was error. Here the judge merely refused to give the jury what would have been good law if the proof called for the instruction. Thus the question is: Was the instruction required by the evidence?

It seems clear that it was not; so the instruction would have been abstract. Whether Dean made promises (a) in good faith or (b) with a fraudulent intent not to perform them was simply not an issue raised by the testimony. Dean himself was the only person who knew his subjective intent, but he declined to testify. The issues of fact related only to what Dean actually did, not to what he thought.

In fact, the appellant’s only contention in the trial court and here is that in the absence of the requested instruction the prosecutor could argue to the jury that a misrepresentation with no intent to perform would be a false pretense. But that is not the law. It is something new for us to require trial judges to instruct juries upon abstract principles of law so that the prosecutor will not argue a theory that is not the law. There are better preventives. If Dean’s lawyer feared such an argument he could have requested the court to instruct the prosecutor not to make it. He could have objected and asked for an admonition if the prosecution made such an argument. At the very least he could have made a record of such an improper argument. But none of those steps were taken. There is not one syllable in the record to suggest that the prosecutor was allowed to make the improper argument which Dean wanted to prevent. Thus the trial judge is being reversed for his failure to give an instruction having as its sole purpose the prevention of an improper argument; yet we do not have any reason to think that such an argument was made. This is not a question of presuming prejudice from error. It is simply a question of whether the appellant has met his burden of showing that an error occurred. It seems plain to me that he has not.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    NEW HAMPSHIRE INSURANCE CO. v. W. D. Frisby
    75-10
    522 S.W. 2d 418
    Opinion delivered May 5, 1975

      Shackeford, Shackeford & Phillips, for appellant.

      Denver L. Thornton, for appellee.
   Carleton Harris, Chief Justice.

This action is based on a claim under a policy of insurance covering a Caterpillar bulldozer. W. D. Frisby, appellee herein, was issued a policy of insurance by New Hampshire Insurance Company, appellant herein, granting certain coverage in the amount of $7,000, coverage including “collison of the equipment with any other vehicle or object, upset, overturn (excepting as may be caused by or resulting from landslide)”, such policy being in effect at all times hereinafter mentioned. On October 1, 1973, George Black, Jr., an employee of appellee, was operating the said bulldozer at a farm a few miles from El Dorado, and a little after 9:00 A.M. Black, backing the dozer up near the edge of a field in high grass for the purpose of getting in front of some brush, backed over and struck a valve or gauge which protruded above the ground 10 to 14 inches, and which was attached by a connecting pipe to a 20 inch pressurized transmission line, containing liquid propane. This caused a rupture permitting the gas to escape. A white cloud immediately spurted upward, and covered the bulldozer. Black cut off the motor, ran to the telephone and called Frisby. Frisby went to the scene and found the dozer frozen, “covered with ice and the gas was still going up.” The Caterpillar was covered with ice and was frozen to the ground. According to Frisby:

“We immediately moved another dozer of ours to the scene and began trying to pull it off away from the place where it was frozen to the ground and, of course, the tracks were just solid ice. The tracks wouldn’t move and there wasn’t any way to move it. *** Well, we have a D-5 caterpillar and we was trying to pull it with a winch on it, also Texas Eastern had two winch trucks there. We had those hooked to it. *** We called a real big winch truck in and with our dozer and these other trucks we managed to break it loose and it didn’t roll. It just skidded, just slid on the ground, and we got it back up near the road.”

The dozer did not completely thaw until the third day, and according to appellee, the engine block was “busted in several spots”, the radiator completely frozen and cracked, and other damage, the cost of repairs exceeding coverage under the policy. Appellant denied liability and Frisby instituted suit for $6,750.00, together with 12% penalty, reasonable attorney’s fee, interest and costs. The company answered asserting that the loss was not directly caused by collision with an object, and therefore not covered within the terms and provisions of the policy. At the close of appellee’s case, appellant resting without the introduction of any evidence, the company moved for a directed verdict which was denied and the jury returned a verdict for the full amount sought. From the judgment entered in the amount of $6,-750.00, together with 12% penalty in the amount of $810.00, $1,500.00 attorney’s fee, making a total judgment of $9,-060.00, together with costs, appellant brings this appeal. For reversal, it is simply asserted that damage by freezing was not loss or damage directly caused by collision with an object.

Appellant relies upon Mercury Insurance Company v. McClellan, 216 Ark. 410, 225 S.W. 2d 931, and Habaz v. Employers’ Fire Insurance Company, 243 F. 2d 784. We do not find either case to be pertinent to the issue at bar. In the first case (which was actually a consolidation of two cases), a truck was being repaired in a garage in Warren, when a devastating tornado struck the city, destroying the garage building and substantially damaging the truck. In the other suit which had been consolidated for trial, a parked automobile was picked up by the tornado, rolled over several times, blown into the top of a tree, and completely destroyed. No coverage for loss arising from a windstorm or tornado was provided in the policy, and this court held that since the tornado was the efficient and proximate cause of the damage, and there being no windstorm coverage, there was no liability on the part of the company. The second case involved a cloudburst in Hot Springs, and subsequent flooding conditions. The owner of a shop on Central Avenue suffered quite a bit of damage to his merchandise from the water. He held a policy of insurance with an extended coverage endorsement, the endorsement providing “Loss by aircraft or by vehicles shall include only direct loss resulting from actual physical contact of an aircraft or a vehicle with the property covered hereunder or with the building containing the property covered hereunder ***.” The opinion cites the plaintiff’s (appellant’s) contention as follows:

“The pleadings, admissions, answers to interrogatories and appellant’s pre-trial deposition established that as the time of the flood an automobile was propelled by the force of the flood waters onto the sidewalk in front of appellant’s place of business in such a manner that it diverted flood waters against the door of appellant’s shop, that the door was thus caused to break down, letting water into the shop with the resultant damage. Flood water entered some but not all of the other buildings on Central Avenue in the vicinity of the appellant’s shop. The automobile that lodged in front of appellant’s shop struck the front of the building, causing a slight crack in one of the small white tiles below one front show window but no water entered the building on that account. All of the water entered through the door opening, some little distance from the automobile itself.”

The court held that the striking of the building by the automobile was not the cause of the damage; rather, the damage was occasioned by the flood water, which was the proximate cause of the whole occurrence.

These situations are not present in the litigation now before us. Here, the initiating cause of the damage to the tractor was the striking of the valve, this collision with the valve, in itself, setting in motion the events, without the intervention of any independent force, which damaged the bulldozer; the damage would not have occurred except for the bulldozer breaking the valve-gauge. Certainly, the striking of the valve by the bulldozer was a collision with an “object” and the damage sustained was, as stated in the policy, “directly caused by the risks and perils insured against.”

In Blashfield Automobile Law and Practice, Volume 7, § 312.4, p. 487, it is stated:

“An ‘object’ may be defined as any tangible thing, visible or capable of discernment by the senses, which offers an impediment or resistance to another object.”

In Washington Fire & Marine Insurance Co. v. Ryburn, 228 Ark. 930, 311 S.W. 2d 302, we held that damages to a truck which slipped off the highway and plunged into a ditch filled with water were caused by the collision of the truck “with another object”. “Directly caused” has been construed to be fairly synonymous with the term “proximately caused.” Gulfport Portland Cement Co. v. Globe Indemnity Co., 149 F. 2d 196. We have defined “proximate cause” as “A cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” See AMI 2d Ed., § 501, p. 39.

In accordance with what has been said, we hold that the damage to the bulldozer was occasioned by the collision with an object, and the loss is thus covered under the provision of the policy, heretofore referred to. Appellee is awarded an additional attorney’s fee in the amount of $750.00 for services rendered in this court.

Affirmed.

       The liquid propane froze when exposed to the atmosphere.

       There was a $250.00 deductible.


author: Lyle Brown, Justice.

text:
    Michael M. HERRING, et ux v. Howard BRAWDY, et al
    74-348
    522 S.W. 2d 369
    Opinion delivered May 5, 1975

      Nabors Shaw, for appellants.

      Joe H. Hardegree, for appellees.
   Lyle Brown, Justice.

This action concerns the ownership of a patented slate placer mining claim in Polk County described as the W Vi of SW !4 of NW XA of Sec. 20, T. 3 S, R. 28W. For their title the appellants, the Herrings, who brought this suit, rested their title on a deed from a trustee in bankruptcy in Oklahoma City. Appellees based their title on a deed which passed title out of M. E. Herring. The chancellor held that the subject lands were not processed through the bankruptcy proceedings involving the estate of M. E. Herring and the title of Howard and Paul Brawdy was therefore superior to that of Michael M. Herring and wife, appellants herein.

We shall refer to the described twenty acres as deeded lands. Technically it is appropriate to refer to the twenty acres as a patented slate placer mining claim. That is because it was so patented by the United States Government. A patent to a placer claim passes to the holder title to the surface. 54 Am Jur 2d § 83, Mines and Minerals. If land is located and held as a placer mining claim under the act of Congress it is a mining claim before patent in every sense of the word and it does not cease to be a mining claim when by a patent from the government the fee is transferred to the locator or his assigns. Berentz v. Belmont Oil Co., 84 P. 47 (1906).

In 1960 M. E. Herring, father of appellant Michael M. Herring, acquired an option to purchase the twenty acres in question plus some mining claims staked and claimed on government land adjacent to the twenty acres of fee or private land. The option expired on December 16, 1960, but was kept alive by $50.00 monthly installments under the extension lease.

M. E. Herring had a close acquaintance with appellee Paul Brawdy. The latter drove Herring around on trips, and Brawdy loaned Herring money to make the monthly installments to extend the option. In April 1961, at the invitation of Mr. Herring, who was old and having money troubles, Paul Brawdy took assignment of the option for approximately $2,500 and expenses to clear title; Brawdy obtained title to the twenty acres plus assignment to him of the option of the mining claims heretofore mentioned.

After obtaining title to the twenty acres and assignment of the mining claims, Paul Brawdy learned of a bankruptcy proceeding in federal court in Oklahoma City involving M. E. Herring and the appellant Michael M. Herring, among others, and some companies in which the Herrings had some interest.

The trustee in bankruptcy caused Paul Brawdy to be made a party to the bankruptcy proceedings and Brawdy was directed to show cause why he should not be required to turn over the twenty acres of fee land and the mining claims in Arkansas. At this time Paul Brawdy had deeded the twenty acres to his brother, appellee Howard Brawdy, but the deed was for the purpose of securing the brother who had advanced money to Paul Brawdy, and the deed to Howard was unrecorded until a later date. In any event Paul Brawdy and his attorney joined issue in the Oklahoma City bankruptcy proceeding and litigated the twenty acres plus the mining claims. After the show cause order the proceedings concerning the bankruptcy and the twenty acres may be succinctly described. On May 22, 1962 there was a hearing in the United States District Court on the show cause petition. An order was issued therein vesting legal title in certain described properties, real estate and mining claims in the trustee. The twenty acres with which we are concerned was misdescribed as the S Vz of the SW !4, NW 14.

On October 2, 1964, the U. S. District Judge in Oklahoma City, having jurisdiction over the bankruptcy proceedings, heard a petition by the trustee for an order authorizing him to sell at private sale for cash the subject twenty acres. That petition was granted, the sale was confirmed and the trustee executed a deed to appellant Dorothy E. Herring to the twenty-acre tract of land, the subject of this litigation.

From an examination of all the entries made in the bankruptcy proceedings it is clear to us that those proceedings included the twenty-acre tract and that all parties so understood it. This is especially true when we consider the fact that the twenty acres consisted of a patented slate placer mining claim, and it was evident to all concerned that the court was reaching out after all the mining claims held by the bankrupt. The fact that an accurate description of the twenty acres was erroneous in one of the documents is not fatal. In Wilson v. Spring, 38 Ark. 181 (1882) we said:

All attorneys and land agents are well aware of the multiplicity of mistakes which take place in the description of land by fractions of sections and by townships and ranges, and base lines and meridian lines. The changes of fractions and numbers and cardinal points are so constant, and in illegible or careless manuscripts mistakes are so frequent with the most careful, that courts should not hesitate to make the proper corrections where they are indeed obvious.

We think it is evident that the failure to include the twenty acres in one of the bankruptcy court documents with a proper description should have been treated by the chancellor to be a misprision and that the court-approved trustee deed to Mrs. Herring constituted good title as against appellees, the Brawdys.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    JACK WOOD CONSTRUCTION COMPANY, INC v. Robert FORD, d/b/a FORD CONSTRUCTION COMPANY & ST. PAUL FIRE & MARINE INSURANCE COMPANY
    74-290
    522 S.W. 2d 408
    Opinion delivered May 5, 1975

      Richard L. Peel, for appellant.

      Williams & Gardner, for appellees.
   John A. Fogleman, Justice.

This suit was brought on September 11, 1970, by Jack Wood Construction Company against Robert Ford, d/b/a Ford Construction Company, and St. Paul Fire & Marine Insurance Company. Appellant alleged that $12,012 was due it on a contract with Ford to do certain construction work on a track to be a part of the athletic facilities at Arkansas Polytechnic College. The allegations asserting liability against appellee St. Paul Fire & Marine Insurance Company were based upon the issuance by that company of a statutory payment and performance bond allegedly guaranteeing the payment of obligations of Ford in connection with the construction of athletic facilities. St. Paul promptly filed answer, simply denying that it was indebted to appellant in any sum.

Appellant asserted that there was an oral contract entered into on August 29, 1969, by which it agreed to furnish certain materials and perform certain labor on behalf of Ford in the construction of the track, the date of completion of which was to be dependent upon the weather and “sub-grade” conditions. After having filed two motions to require appellant to make his complaint more definite and certain, Robert Ford d/b/a Ford Construction Company filed a general denial and a counterclaim. In the counterclaim Ford alleged that breaches of the contract by appellant had caused him, as general contractor, to be assessed with a penalty of $10,000.

Ford d/b/a Ford Construction Company, moved for, and obtained permission, to make Arkansas Polytechnic College a third party defendant. This motion was filed October 15, 1971, and granted October 25, 1971. The third party complaint was filed by Ford Engineering & Construction Company, a Nebraska corporation. On November 5, 1971, the day this complaint was filed, this corporation and Robert Ford also filed a motion to correct the name of the defendant from Robert Ford d/b/a Ford Construction Company in all pleadings and for dismissal of the complaint as to Robert Ford d/b/a Ford Construction Company. On the 24th day of April, 1972, this motion was denied. On March 21, 1973, the Board of Trustees of Arkansas Polytechnic College filed a demurrer challenging the third party complaint against it, alleging that it had never been served with an order permitting the intervention of Ford Engineering and Construction Company. In this pleading, the Ford corporation was characterized as an interloper. In response to this demurrer, the Ford corporation pleaded that it was the real and actual party in interest instead of Robert Ford d/b/a Ford Construction Company. Following a further extensive battle of pleadings by the parties, the case was set for trial in June, 1974. After testimony on behalf of Ford Engineering & Construction Company had been completed, the court granted the college board’s motion to dismiss the third party complaint against the college board “upon constitutional grounds.” After testimony on behalf of defendants Robert Ford d/b/a Ford Construction Company and St. Paul Fire and Marine Insurance Company, they moved for dismissal on the basis that they were not proper parties. At that time, Robert Ford had testified that he was president of Ford Engineering and Construction Company and that this was a family held corporation. On cross-examination by the attorney for the college board he stated that he was the general contractor and contracted with Wood. He also said that he was responsible for the subcontract.

The ground for St. Paul’s motion was that, since it had not made any bond on behalf of Robert Ford d/b/a Ford Construction Company, appellant was not entitled to any judgment against it. This motion was first granted. The court then granted a motion to dismiss as to Ford, on the basis that Wood’s contract was with the corporation. The circuit judge clearly indicated that the motion was granted for defect of parties, and not as a directed verdict.

St. Paul Fire & Marine Insurance Company never raised any question about any defect of parties until after all evidence in chief on behalf of the plaintiff, appellant here, and both defendants, appellees here, had been completed. When it answered the complaint, this defendant obviously knew that Robert Ford, as a sole proprietor, was named as the defendant, and the work to be done under the contract was clearly identified. Its answer did not put the status of any party in issue. Instead it had the effect of admitting the status of its co-defendant. Ark. Stat. Ann. § 27-1121 (Repl. 1962). See Meek v. United States Rubber Tire Company, 244 Ark. 359, 425 S.W. 2d 323. No subsequent pleading by St. Paul ever raised this issue, even though Wood, by its pleadings, specifically identified the work for which it claimed to have been a subcontractor and Ford had filed its motion on November 5, 1971, specifically alleging that Ford, as an individual proprietor, was an improper party and that St. Paul was surety on the corporation’s bond and not for Ford, individually. The motion was a joint one by Ford and the Ford corporation and simply asked that the name of the party defendant be corrected. Appellant had responded by alleging that Ford and the corporation were jointly and severally liable. That motion was denied. Ford Engineering & Construction Company, as third party plaintiff, proceeded on its third party complaint, and filed pleadings in the principal action jointly with Ford.

There was no sound basis for the dismissal. A defendant may demur to a complaint where there is a defect of parties, plaintiff or defendant. Ark. Stat. Ann. § 27-1115 (Repl. 1962). The defect here did not appear upon the face of the complaint, but the question was not raised by St. Paul by any written pleading. Failure of a plaintiff to join a necessary defendant in an action is waived by a named defendant’s failure to specifically plead the defect by demurrer or answer, or to move that the missing party be joined. Jordan v. Muse, 88 Ark. 587, 115 S.W. 162; Murphy v. Myar, 95 Ark. 32, 128 S.W. 359. But the principal on the bond was not a necessary party. National Surety Corp. v. Ideal Lumber Co., 249 Ark. 545, 460 S.W. 2d 55. The failure to make Ford Engineering and Construction Company a party defendant did not prejudice St. Paul in any way, and the dismissal as to St. Paul was clearly erroneous.

We also find error in the dismissal as to Robert Ford d/b/a Ford Construction Company. The motion to dismiss by Ford was made when the trial was virtually complete. All the while the corporation of which he was president was actively participating in the trial, at least as a third party plaintiff, under permission to plead as such, granted to Robert Ford. In his request for this permission Ford alleged that he had ascertained that a contract between him and the college bore directly upon the lawsuit. The permission was granted over Wood’s objection. Ford, individually, had filed an answer which consisted of a general denial and a counterclaim. To this counterclaim, Ford had alleged that he and Jack Wood Construction Company had entered into an agreement under which Wood was to install a blacktop base, and asphalt binder, and to do necessary “sub-grading” requirements on the athletic field at the college, but that Wood had failed to complete the project in the time and manner agreed upon, thus causing a penalty to be assessed against Ford. He prayed judgment against Jack Wood Construction Company for the amount of the penalty. Wood then asked that Ford be required to make his counterclaim more definite and certain by setting forth the contract terms and conditions in specific detail and to attach a copy of any written instrument containing any of these terms. Ford’s only response was that the contract was oral and that any specific details could be more appropriately obtained through interrogatories or deposition.

In the third party complaint there were allegations that Robert Ford, acting for Ford Engineering & Construction Company, had entered into some agreement with the college. Nearly a year after the motion to correct the name of the defendant was denied, the college board filed a demurrer to the third party complaint on the ground that the Ford corporation was not properly a party to the action. This demurrer was later overruled but Ford Engineering & Construction Company had responded, alleging that it was the actual and real party in interest in the litigation. Later, the attorneys, who represented both Ford, individually, and the corporation, gave notice that the defendant and third party plaintiff would take certain depositions. Still later, Ford and Ford Engineering & Construction Company, as the defendant and the third party plaintiff, jointly filed a motion to require the plaintiff (appellant) to make an amendment to its complaint more definite and certain.

Thus, after a battle of pleadings extending over a period of nearly four years, Robert Ford moved for a dismissal, which was granted for a defect of parties.

If Ford Engineering & Construction Company had any place in the litigation at all, it was as a defendant or as an intervenor. This is not a tort action, and third party practice, strictly speaking, was not authorized in this action at the time Robert Ford was asking for permission to file the third party complaint or at the time Ford Engineering & Construction Company filed it. See Ark. Stat. Ann. § 34-1007 et seq (Repl. 1962); Ark. Stat. Ann. § 27-1134.1 (Supp. 1973). But we regard the substance of pleadings, rather than their label. Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W. 2d 836. When we do so, the Ford corporation’s filing the third party complaint under permission granted to Ford, individually, through the attorneys who represented both parties throughout the litigation, when considered along with the counterclaim of Ford, d/b/a Ford Construction Company, should be considered as an entry of appearance by the corporation and the pleading to be a cross-complaint under Ark. Stat. Ann. § 27-1134 (Repl. 1962). It is noteworthy that in response to the Ford motion to substitute the corporation for the individual, Wood had alleged that they were jointly and severally liable on the contract and that the corporation had later asserted that it was the real party in interest in the case. Any lingering doubt about the entry of appearance and the fact that the Ford corporation had become a party to the action is clearly eliminated by the motion to correct (which was denied) when Wood responded that he contended that there was joint and several liability by the individual and the corporation, and the corporation’s denial that it was an interloper and fiat assertion that it, not Ford individually, was the real party in interest. One may to all intents and purposes be a party to an action, even though all the formalities in making him such upon the record have not been observed. See Phillips v. Matthews, 203 Ark. 100, 155 S.W. 2d 716.

Even if the third party complaint were not to be considered as a cross-complaint by a defendant in the action, Ford Engineering and Construction Company was, to say the least, an intervenor. An intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding. Gorham v. Hall, 172 Ark. 744, 290 S.W. 357. The alignment of the parties as plaintiffs and defendants after an intervention depends upon substance rather than form and may be determined by analysis of the proceedings in the case. 59 Am. Jur. 2d 616, Parties § 178; Allman v. Potts, 140 Mont. 312, 371 P. 2d 11, 92 A.L.R. 2d 1104 (1962). See also, Gorham v. Hall, supra; Savage v. Cowen, 33 S.W. 2d 433, (Tex. Com. App., 1930).

A defect of parties may be cured by intervention of the nonjoined party. Fairbanks v. McAllen, 170 S.W. 2d 581 (Tex. Civ. App. 1943). A review of the pleadings in this case shows that Ford Engineering & Construction Company cured any defect of parties that might have existed.

Appellees argued that appellant failed to comply with our Rule 9 by not abstracting the testimony at the trial so we could determine whether Wood was barred from a recovery due to its failure to perform. This might be so if the circuit court has directed a verdict in the case. But it did not, and the circuit court expressly disavowed any intention to do so, saying that he granted the oral motions of appellees to dismiss.

The judgment of dismissal is reversed and the cause remanded for further proceedings.


text:
    Harold S. PURSER v. CORPUS CHRISTI STATE NATIONAL BANK
    74-291
    522 S.W. 2d 187
    Opinion delivered May 5, 1975

      Sam Goodkin, for appellant.

      Bethel!, Callaway & Robertson, and Warner & Smith, for appellee.
   John A. Fogleman, Justice.

This is the second appeal in this case. On the prior appeal we affirmed the action of the circuit court dismissing appellant’s counterclaim, which we found to be an impermissible counterattack upon a judgment of a Texas court which appellee sought to have registered under the Uniform Enforcement of Foreign Judgments Act [Ark. Stat. Ann. § 29-801 et seq (Repl. 1962)]. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549. We there concluded that the act provided a summary judgment procedure in which the judgment defendant could raise only those defenses, counterclaims and cross-complaints which might have been asserted in an action on the foreign judgment under pre-existing law of this state. The counterclaim and set-off then asserted was an attempt to recover from the judgment creditor compensatory and punitive damages in tort for alleged conversion of business and malicious prosecution. But we noted that appellant had not alleged fraud or lack of jurisdiction in his counterclaim and setoff, also noting that the pleading constituted a collateral attack on the judgment, which in the absence of allegations of fraud or lack of jurisdiction, either of the subject matter or the parties, could not be raised in the registration proceedings.

After the mandate of this court was filed in the circuit court, appellant filed an amended counterclaim, alleging lack of jurisdiction of the Texas court over the person of appellant, and praying that the judgment be set aside and held void. He also asked judgment against appellee as prayed in the original counterclaim and setoff. Appellee moved to quash (strike?) appellant’s amended pleading, asserting that the matter was res judicata, because the matter set forth therein had been argued by appellant on the prior appeal and on his petition for rehearing. Appellee responded that the dismissal of its original counterclaim was specifically entered “without prejudice” and that this court had noted the absence of any allegation of fraud or lack of jurisdiction, and, therefore, the law.of the case is that an allegation of lack of jurisdiction will support a counterclaim. The circuit court dismissed the amended counterclaim and directed appellant not to again assert, or attempt to assert it “against the plaintiff in this action”. On the same day, appellee moved for summary judgment on its petition for registration of the Texas judgment. The motion was supported by an affidavit of Henry Nuss, an attorney for appellee that, after a motion by appellant to quash service upon him in the Texas court had been overruled, appellant’s attorney requested that the trial court reconsider its order that Nuss had consented and that another hearing was held on the motion, at which appellant’s contentions were argued by his attorney. In less than ten days after the motion for summary judgment was made, the circuit judge granted the motion and registered the judgment. The reason given for the premature entry of judgment was that the judge did not feel that any meritorious defense was available to appellant.

We do not agree with appellant that the law of the case is that he may assert his counterclaim, if he alleges that the Texas court was without jurisdiction. We pointed out in the first appeal that the recovery appellant sought in the tort action was not the proper subject of a counterclaim in a proceeding to register the foreign judgment. Insofar as that phase of the case is concerned the law of the case does govern and there was no error in dismissing the counterclaim insofar as it related to the tort action. This leaves a question pertaining to the allegation that the judgment is void for want of jurisdiction of the Texas court. That question was also raised by appellant’s answer and was an issue in the case.

The motion for summary judgment was supported by the affidavit of Nuss which tended to show that the same jurisdictional question had been raised in the action in which the judgment sought to be registered was rendered. There was no contravention of the statement in that affidavit. In the absence of contravention, statements in the affidavit should be taken to be undisputed and true for the purposes of the motion. Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881; Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465; Sleeper v. Sweetser, 247 Ark. 477, 446 S.W. 2d 228; Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76. If indeed they are true, Purser raised the same jurisdictional question in the Texas court he is seeking to raise here.

Summary judgment is an extreme remedy which should be granted only when it is clear that there is no genuine issue of fact to be litigated. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W. 2d 435; Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646. The notice requirements were not complied with. They are not mere formalities and should not be treated so lightly as to deprive a party of an opportunity to present rebutting evidence and argument. Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F. 2d 493 (5 Cir., 1967). Courts of the Eighth Circuit have required strict compliance with these requirements of the rule. See Twin City Federal Savings & Loan Assn. v. Trans-America Insurance Co., 491 F. 2d 1122 (1974). The importance of notice and hearing has been emphasized by many authorities. In pointing out the reason Rule 56 FRCP requires ten days service rather than five days required by Rule 6 (d), Wright and Miller say at p. 451, Vol. 10, Federal Practice & Procedure, § 2719:

The extended time period for service of the motion is especially important in the Rule 56 context because it provides an opportunity for the opposing party to prepare himself as well as he can with regard to whether summary judgment should be entered. In theory, the additional time ought to produce a well-prepared and complete presentation on the motion to facilitate its disposition by the court. In addition, since opposition to a summary judgment motion often is a difficult task, usually involving preparation of both legal and factual arguments as well as affidavits, and since the results of failure are drastic, it is felt that the additional time is needed to assure that the summary judgment process is fair.

Yet, we have not gone so far as some courts have in holding that a trial court is without jurisdiction to render a summary judgment in less than ten days. See Adams v. Campbell County School District, 483 F. 2d 1351 (10 Cir., 1973); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F. 2d 607 (10 Cir., 1973). See also, Bowdidge v. Lehman, 252 F. 2d 366 (6 Cir., 1958); Enoch v. Sisson, 301 F. 2d 125 (5 Cir., 1962). We have already taken the position that failure to hold a hearing on such a motion is not always fatal to a summary judgment, when the party against whom the judgment is rendered is not prejudiced. Sherman v. Keene, 256 Ark. 850, 510 S.W. 2d 870.

There was error in the premature entry of the judgment in this case and unless it is manifest that the error is not prejudicial, we should reverse. Even though appellant has registered a timely and appropriate objection in this cause and has been effectively prevented from filing counter-affidavits, it seems clear that appellant has not been prejudiced and that the circuit judge correctly stated that no meritorious defense was available to the appellant under the circumstances disclosed by the record.

In granting a motion for summary judgment, the court must find from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ark. Stat. Ann. § 29-211 (c) (Supp. 1973). In considering the motion the court was not confined to consideration of affidavits filed with the motion but could search and review the entire record, including all pleadings and exhibits filed in the case. Adamson v. Bowker, 85 Nev. 115, 450 P. 2d 796 (1969); Lundberg v. Backman, 9 Utah 2d 58, 337 P. 2d 433 (1969); Davis v. Travelers Insurance Company, 196 N.W. 2d 526 (Iowa, 1972); Northwestern National Bank of Sioux City v. Steinbeck, 179 N.W. 2d 471 (Iowa, 1970); Thompson v. Abbott, 226 Ga. 353, 174 S.E. 2d 904 (1970); Brown v. Pointer, 390 Mich. 346, 212 N.W. 2d 201 (1973); Thomas v. Signal Insurance Company, 236 S. 2d 874 (La. App., 1970); Schy v. The Susquehanna Corp., 419 F. 2d 1112 (7 Cir., 1970), cert. den. 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55. See also, Smoot v. State Farm Mutual Automobile Insurance Co., 299 F. 2d 525 (5 Cir., 1962); Goldsmith v. American Food Services, Inc., 123 Ga. App. 353, 181 S.W. 2d 95 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E. 2d 370 (1971); Riggins v. County of Mecklenberg, 14 N.C. App. 624, 188 S.E. 2d 749 (1972).

There was evidence other than the affidavit of Nuss in the case showing clearly that appellant had appeared in the Texas court in which the judgment was rendered to raise the jurisdictional question appellant seeks to pursue in resisting the registration of the judgment. An exhibit in support of appellee’s motion to quash the counterclaim originally filed by appellant was a certified copy of the entire proceedings before the Texas court. It shows clearly that: on April 19, 1971, appellant through the attorney representing him here, filed a motion to quash the service on the grounds he now asserts, with a supporting brief; the motion was heard and overruled; that order was set aside, the motion reheard and again denied.

In his abstract of the record on the former appeal, appellant included the following statement:

In due time, the nonresident defendant, specially appearing for the sole and only purpose of questioning the jurisdiction of the Texas Court, filed a Motion to Quash service on the grounds that he was a nonresident and did not sign the postal return receipt, nor served with copies of the notes (TR. 29-30). But this Motion was overruled on July 14, 1972 (TR. 32-33).
Defendant did not plead further, and on August 29, 1972, the Texas Court entered a judgment by default against defendant in the sum of $72,825.33, with interest and costs. (TR. 34).

It was proper for the court to consider the exhibit to the motion to quash. When we consider it, we agree with the circuit judge that no meritorious response was available to appellant. The admitted appearance of appellant in the Texas court for the purpose of quashing service would have had the effect of giving that court jurisdiction of his person for the purpose of quashing service on any ground that he asserted or might have asserted in his motion. Since he appeared in that court for that motion, he is estopped from asserting in this action not only the reasons alleged in his motion there, but any reasons he might have set up as grounds for quashing the service and the judgment of that court on the question is conclusive and not subject to collateral attack in the Circuit Court of Sebastian County. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488, 152 S.W. 142.

In view of the entire record and appellant’s statement, we have no hesitation in holding that the premature entry of judgment was not prejudicial to any right of appellant, since the jurisdictional question was the only potential issue.

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    A. F. BAKER, et al v. Clarence L. WESTMORELAND, et ux
    75-5
    522 S.W. 2d 402
    Opinion delivered May 5, 1975

      (lamer, (lamer & Cloar, for appellants.

      Carneal Warfield, for appellees.
   Frank Holt, Justice.

This is an action to quiet title. Appellants, the natural children of A. W. Baker, deceased, petitioned the chancellor to declare them the owners of an undivided 6/7ths interest in property owned by their father. The chancellor held that Baker owned this property with his wife as tenants by the entirety. Therefore, upon Baker’s death in 1951 the property went to his wife rather than to Baker’s heirs. Mrs. Baker died in 1966 leaving her son, appellee Westmoreland, as her sole heir. Appellants assert for reversal there is insufficient evidence to support the chancellor’s finding of a tenancy by the entirety.

The record reflects that Baker, individually, obtained title to 79 acres of farm land in 1936. In 1946, Baker and his wife, Emma, as joint grantors, conveyed this property by warranty deed to Ernest Mangum. By the granting clause, a vendor’s lien was retained for the unpaid balance evidenced by notes payable to the grantors. Upon default, the granting clause provided “that the Grantors at their option” could declare the entire debt due. The Mangums defaulted and in 1947 conveyed the property to “A. W. Baker and Emma Baker, Man & Wife, and unto his heirs ***.” The granting clause also contained this significant language. “(The object of this deed is to return title to Grantee herein, without foreclosure for balance of purchase price.)”

The only issue is whether the Mangums’ deed conveyed a tenancy by the entirety to the Bakers. Appellant relies upon Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903 (1954). There we held that a grant to “Dave Harmon and Gertie Harmon and unto his heirs and assigns forever” did not convey a tenancy by the entirety. The facts in that case, however, are peculiarly different from these in the case at bar. There the word “his” was typed into the printed form deed. This was erased and the word “theirs” typed in. Then “theirs” was inked out and the word “his” inserted by writing. We held that this written insertion was deliberate and could not be treated as a mere inadvertence.

The later case of Redmon v. Hill, 233 Ark. 45, 342 S.W. 2d 410 (1961), distinguished Harmon v. Thompson, supra. In Redmon the granting clause of the deed conveyed property to Duncan Hill and Emma Hill, and **** unto his heirs and assigns ****.” There we said:

In two important respects the facts in the Harmon case are easily distinguishable from the facts in the case under consideration. One, in the cited case it is clear, because of the erasures and changes, that the word “his” was deliberately and purposely used instead of the word “their.” Such is not the case here. Two, in the cited case the all important fact of intent is not definitely shown, as it is in this case.

In Redmon v. Hill, supra, there was testimony that Hill asked that the deed be made to him and his wife. Likewise, in the case at bar, Mrs. Mangum’s uncontradicted testimony is that the deed was made according to Baker’s direction. There is no indication that the use of the word “his” was purposely and deliberately done to alter the intent in the deed. Additionally, the conveyance here from the Mangums to the Bakers, as grantees, includes the phrase “Man and Wife.” Further, the reconveyance was specifically noted as being for the purpose of cancellation of their notes to Baker and his wife, Emma, when they jointly conveyed the property to the Mangums. Although the Mangum deed recites the purpose of the conveyance “is to return title to grantee herein” that does not negate the fact that the “grantee” in the singular could include Baker and his wife since both were the grantors in their deed to the Mangums. We hold that Redmon is applicable and controlling in the case at bar.

Neither do we consider Baker’s 1936 unprobated will nor who paid the taxes on the property as being of any significance in determining the pivotal issue before us, which is the construction of the reconveyance by the Mangum deed. The chancellor’s interpretation is in accord with our well established rule of property. Mills Heirs v. Wylie, 250 Ark. 703, 466 S.W. 2d 937 (1971).

Affirmed.


text:
    Sam LINGO et al v. CITY OF JACKSONVILLE
    75-9
    522 S.W. 2d 403
    Opinion delivered May 5, 1975

      Chas. A. Walls, Jr., for appellants.

      Ben Rice, for appellee.
   Frank Holt, Justice.

This case involves a dispute concerning subterranean water rights. Appellee, the City of Jacksonville which is located in Pulaski County, purchased several small parcels of land in Lonoke County. Appellee then constructed five water wells on its land. The water is pumped approximately five miles to the city to supplement its water supply for sale to its customers. Appellants are homeowners, fish and rice farmers and a manufacturer in the area of appellee’s well field and also within the same watershed. They depend upon their individual or several wells for their water supply. Appellants petitioned the chancellor to enjoin appellee from pumping water, asserting its removal would deplete the quantity and quality of the existing supply. Appellants further alleged that appellee, as a public entity, should compensate the landowners for the water removed. The chancellor’s order enjoined the appellee from “pumping more than 650 gallons per minute from any of the five individual water wells owned by said city, in excess of eight hours during any twenty-four hour period.” The other provided for masters to monitor the water level of the wells and report to the court at least on monthly intervals for six months or such other intervals as the court might direct. The court retained jurisdiction “until further orders of this court.” From this order comes this appeal.

Appellants contend for reversal that the chancellor erred in not enjoining appellee from removing water from under its land, as a riparian owner, to a distant point for sale. Appellants argue that the owner of riparian rights, under the reasonable use theory, can only use the water on the overlying land in the absence of an eminent domain proceeding and just compensation. We cannot agree.

The appellee, as a landowner, is a riparian owner exactly the same as are the appellants. Incidental to that ownership, each is entitled to a reasonable use of their respective subterranean water rights. In Jones v. Oz-Ark-Val Poultry Co., 228 Ark. 76, 306 S.W. 2d 111 (1957), we said:

As to water rights of riparian owners, this State has adopted the reasonable use rule. Harris v. Brooks, 225 Ark. 436, 283 S.W. 2d 129; Harrell v. City of Conway, 224 Ark. 100, 271 S.W. 2d 924. We see no good reason why the same rule should not apply to a true subterranean stream or to subterranean percolating waters.

In Harris v. Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955), we said:

It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use. **** The purp0se Df the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated.

We then quoted with approval:

‘The law accords equal protection to the interests of all riparian proprietors in the use of water, and seeks to promote the greatest beneficial use of the water, and seeks to promote the greatest beneficial use by each with a minimum of harm to others. **** Hence it is only when one riparian proprietor’s use of the water is unreasonable that another who is harmed by it can complain, even though the harm is intentional.’

We said further:

In all our consideration of the reasonable use theory as we have attempted to explain it we have accepted the view that the benefits accruing to society in general from a maximum utilization of our water resources should not be denied merely because of the difficulties that may arise in its application. In the absence of legislative directives, it appears that this rule or theory is the best that the courts can devise.

It is permissible for a riparian owner to remove subterranean and percolating waters and use it away from the lands from which it was pumped if it does not injure the common supply of other riparian owners. Jarvis v. State Land Department, 106 Ariz. 506, 479 P. 2d 169 (1970); and Higday v. Nickolaus, Mo. App., 469 S.W. 2d 859 (1971). The rationale is that adjacent riparian owners cannot complain if they are not damaged by the removal. In the case at bar, the City of Jacksonville, a riparian owner in the same subterranean watershed, will use the water five miles distant for the consumption of its customes or the public. A study of the impact of appellee’s usage of its waterfield upon the existing supply in the area was made by the Arkansas District of the Water Resources Division of the U. S. Geological Survey in cooperation with the Arkansas Geological Commission. The study reflected a lowering of the water level in the immediate area of the appellee’s wells by six feet at the end of one year if the proposed pumpage of 3,000,000 gallons per day was permitted. The lowering of the level or “cone of depression” at the well site tapered off to zero after a short distance. The study indicates that at this rate of pumpage for an additional ten years the water level would only be reduced by approximately one inch per year.

According to appellee’s expert witness, the “drawdown” of the water level or “cone of depression” will be six feet at the immediate site of the wells and gradually taper to zero after a short distance. The “drawdown” at each well would stabilize after 621.378 days’ usage at levels not exceeding 7.8 feet. The quality of the water should not change.

Appellants’ expert witness was of the view that the water level in the watershed was declining annually. He estimated that the “drawdown” would vary from 20 to 30 feet and appellee’s proposed use would adversely affect appellants’ water supply. He personally had made no measurements in water levels in the area and based his opinion upon his general knowledge in the Grand Prairie watershed and a study of federal and state records. Appellants adduced evidence from landowners in the immediate area and from other areas in the watershed. According to their experience, the use of multiple wells in an area diminished and had an adverse effect upon the sufficiency of their water supply.

To insure that the appellants are not damaged, the chancellor retained jurisdiction and, as indicated, restricted appellee’s use. The concern of the chancellor is demonstrated in his well reasoned memorandum opinion stating in part:

The City of Jacksonville would, in the opinion of this Court, have a right to the reasonable use of the water in question so long as that use does not interfere with or damage the domestic or agricultural or other lawful water rights of the adjacent property owners. **** This Court finds that the evidence is that the operation of the wells in question, unless restricted, will to some degree diminish the water table in the immediate vicinity of the wells. The City of Jacksonville might even deplete the area of water, and irreparably damage the adjacent landowners’ right to use the water in question. Therefore, this Court will restrict the City of Jacksonville by injunction from removing water from the wells in question to the extent that it would damage the plaintiffs. **** It is difficult at this time for the Court to find with any confidence the exact amount of water that may be removed without damage to the landowners. But after carefully studying the evidence, this Court concludes that the pumps in question, individually, may not be operated during any one twenty-four hour period for more than eight hours. **** This Court will continue to exercise jurisdiction over the parties and the matter in question so long as may be necessary to protect the property rights of the interested parties. Of course, the Court will be available for modification of the injunction should it develop that this restriction is either too lenient or too harsh.

Masters were appointed “for the purpose of measuring the water level of certain wells located in Lonoke County” to ascertain the effect on the water level by appellee’s usage.

Since the appellee is a riparian landowner, it is clear from what we have said that its use of the underground water is not necessarily a subject for eminent domain proceedings. However, we do not foreclose the right of the appellants, upon proper proof, to show special damages suffered by them by appellee’s unreasonable use of the water supply as a riparian owner.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    ARKANSAS GAZETTE COMPANY and Ginger SHIRAS v. Fred M. PICKENS, Jr. et al, Acting in Their Capacities as Members of the Board of Trustees of the University of Arkansas
    75-6
    522 S.W. 2d 350
    Opinion delivered May 12, 1975

      Rose, AW;, Williamson, Carroll & Clay, for appellants.

      Ray Trammell, for appellees.
   Carleton Harris, Chief Justice.

The sole question presented on this appeal is whether committees of the Board of Trustees of the University of Arkansas are required by the Freedom of Information Act to permit newspaper reporters to be present at meetings. Stated differently, are committees of a board which is itself subject to the provisions of that act exempt from such provisions because they are only subgroups?

The Board of Trustees of the University is composed of ten members, one of whom serves as chairman, and on November 2, 1973, prior to a meeting of the entire board, five trustees, acting as members of the Student Affairs Committee of the Board, met with the president, vice-president and the legal counsel of the University for the purpose of discussing a proposed rule change that would permit University students of legal age to possess and consume intoxicating beverages in University owned or controlled facilities at the Fayetteville campus. Also present was the chairman of the board, who is an ex-officio member of all committees. Ms. Ginger Shiras, a reporter for the Arkansas Gazette, was present for the purpose of reporting events that transpired in a subsequent issue or issues of the aforementioned newspaper. When her presence was discovered, a majority of the members of the committee, acting upon advice of the University’s legal counsel that the Freedom of Information Act did not prohibit exclusion of the public and representatives of the press from committee meetings, voted to conduct the meeting in private, and Ms. Shiras was requested to leave. On December 1, a request by the attorney for the Gazette that a policy be adopted permitting press representatives to attend the meetings was forwarded by mail, but no action apparently was taken on the request. On December 14, 1973, a second meeting of the Student Affairs Committee was held for the purpose of discussing the alcoholic consumption issue, at which time the same members were present. Ms. Shiras again attempted to attend the meeting for the purpose of reporting proceedings, but was told that the policy explained at the November meeting was still in effect and that the committee’s meetings were closed to the press.Ms. Shiras did attend a meeting of the full Board of Trustees later in the day.

Thereafter, appellants instituted suit in the Pulaski County Circuit Court against the Board of Trustees seeking a declaratory judgment relative to their rights under the Freedom of Information Act. After the filing of an answer and the taking of testimony, the court rendered an opinion finding that committees or subdivisions of governing bodies or boards, “functioning in the manner and for the purposes that committees ordinarily do” were not subject to the provisions of the Freedom of Information Act and judgment was entered to that effect and the complaint was dismissed. From such judgment comes this appeal.

For reversal, it is simply asserted that “committees composed of members of the Board of Trustees are required by the Freedom of Information Act to conduct public meetings. ”

The Freedom of Information Act of 1967 is codified as Ark. Stat. Ann. § 12-2801 — 12-2807 (Repl. 1968). The pertinent sections to this litigation are § 12-2802, the second paragraph of § 12-2803, and § 12-2805. The first mentioned section declares the public policy of the State as follows:

“It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.”

This language was commented on in Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753, the first case interpreting any phase of the Freedom of Information Act (by this court) after its passage by the legislature. After pointing out that the city’s contention that the Freedom of Information Act was a penal statute and accordingly required strict construction, was erroneous, we then said:

“In the act now before us the General Assembly clearly declared the State’s public policy: ‘It is vital in a democratic society that public business be performed in an open and public manner.’ We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved'.” [Our emphasis].

This, then, is the approach that we shall take in determining the litigation now before us.

Paragraph 2 of § 12-2803 defines “public meetings” as follows:

“ ‘Public meetings’ are the meetings of any bureau, commission or agency of the state, or any political subdivision of the state, including municipalities and counties, Boards of Education, and all other boards, bureaus, commissions or organizations in the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds.”

The manner of conducting public meetings is set out in § 12-2805, pertinent language to the present action reading as follows:

“Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.”

It is the contention of appellees, which view was also taken by the trial court, that the language in the statutes just quoted refers only to the governing body as a whole, i.e., public meetings are only required when the full board meets, and committee or subgroup meetings are not covered in the Freedom of Information Act. Granted, the act does not specifically set out the word “committees” when it defines public meetings, and the question thus becomes whether the legislative intent was to encompass the subgroups of a board. Before proceeding further, perhaps it would be well to state that we attach no significance to one of the arguments advanced by appellants. It is pointed out in their brief that six members (including the chairman) of a ten-man board constitute the Student Affairs Committee; that this number likewise constitutes a majority of the board itself, and it is suggested that this circumstance permits the board to transact board business as a committee and thus (according to the view of the board) exclude the public from its meetings. It is also shown by tne evidence that two other board members, not members of the committee, came into the meeting room off and on at the November meeting, and one board member, not a committee member, endeavored to speak, or ask a question at the December meeting which was not permitted. These facts deserve no further comment, for the conclusion which we have reached in this case, hereinafter set out, is not in any manner predicated upon the number of board members constituting the Student Affairs Committee, and our decision would be the same if that committee were composed of a lesser number.

We might also state that decisions from sister jurisdictions are of little help, since the several freedom of information acts over the nation vary from state to state,have been amended from time to time, and the courts have taken divergent views in interpreting these statutes. Actually, there is authority to support both sides in the present litigation.

In Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, this court said:

“In the case of Bailey v. Abington, supra, this Court held that in construing legislation and Constitutional provisions, it is the duty of the courts to ascertain and give effect to the intent of the framers and to the people who adopted it, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning; that the courts are confined to the real purpose and intention of the language rather than to the literal verbiage employed; that the reason, spirit, and intention of the legislation or Constitutional provision shall prevail over its letter; that this rule of construction is especially applicable where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat, the plain purpose of the law; and that to afford such construction, courts must restrict, modify, enlarge, and/or transpose the expressed terms.”

It clearly appears that the General Assembly, in referring to public meetings, attempted to “cover the field”, using such language as “formal or informal”, “special or regular”, and we attach no particular significance to the fact that the word “committee” is not specifically enumerated; in other words, it was the intent of the legislature, as so emphatically set forth in its statement of policy, that “public business be performed in an open and public manner.” [Our emphasis].

Where is the basic difference in the nature of the business conducted by the board and the committee? Both are dealing with public business — both are dealing with problems that confront the institution which they represent. In fact, it Would appear that the principal difference is that the committee delves more into detail than the board. When the General Assembly used the expression “to learn and to report fully [our emphasis] the activities of their public officials”, it meant not only the action taken on particular matters, but likewise the reasons for taking that action. Actually, public knowledge of the reasons can well result in a board decision being more acceptable or palatable; to the contrary, decisions rendered in secret, the reasons not being known, can well result in perhaps unjustified criticism of a board. Is not the public entitled to know why a board adopts certain rules or regulations? The “why” is the essence of the action taken.

Appellants assert in their brief that if the trial court’s decision is upheld, “The Board of Trustees now has the tool to eviscerate the Freedom of Information Act. Controversial subjects can be dealt with at committee meetings. All of the board members are entitled to attend.” We think there is merit in this contention. Board members can thus acquaint themselves with the issues involved in controversial subjects, hear those issues discussed and debated, and definitely form their conclusions without the particular issues being discussed at the board meeting at all. The concurring opinion by Chief Justice Adkins in the Florida case of Jones v. Tanzler, 238 So. 2d 91 (the court having decided the case by a short/w curiam), is pertinent to this question. There, the Chief Justice stated that a parent body could divide itself into groups of small committees, each member of the committee thus having a chance to commit himself concerning a matter on which foreseeable action would be taken by the parent authority, and the public would have no opportunity to be heard. It was then pointed out that the action of the entire parent body in a public meeting would thus be only an affirmation of the various secret committee meetings that had been held. This aspect of the situation was also commented upon by the court in Bigelow v. Howze, Fla. App., 291 So. 2d 645, where it was said:

“This court may take judicial notice of the fact that committee recommendations are often accepted by public bodies at face value and with little discussion.”

What is a committee? According to The American Heritage Dictionary of the English Language (1969 Edition), a committee is:

“A group of people officially delegated to perform a function, as investigating, considering, reporting, or acting on a matter.”

This definition fits the situation here at issue and it appears to us somewhat incongruous that a parent body cannot go into executive session (except for personnel inatters) but its component parts (the committees) which actually investigate the complaints, and act on those complaints by making recommendations to the board, are at liberty to bar the public from their deliberations. Surely a part (of a board) is not possessed of a prerogative greater than the whole.

Of course, pertinent to our discussion in the instant litigation is the question, “Did the decision reached by the committee affect proposed rules for the student body?” To ask the question is but to answer it, for the committee made its recommendations to the board on the basis of its own investigation, and the board adopted that recommendation with but little discussion. When a committee of a board meets for the transaction of business — this is a public meeting, and subject to the provisions of the Freedom of Information Act.

It is suggested by appellees that appellants are without standing to institute this lawsuit since Ark. Stat. Ann. § 12-2802 (the declaration of public policy heretofore referred to) provides that public business shall be performed in an open and public manner so that the electors shall be advised of the performance of public officials; that the complaint contains no allegation that either appellant is an elector, nor that either appellant has been appointed agent-representative of any electors. This is a surprising argument, and in our view, merits but little comment. In the first place, such an issue does not appear to have been presented to the trial court. In fact, the answer admits the allegations contained in Sections 1 and 2 of the complaint. The former section sets out that the Gazette is a corporation organized under the laws of the State of Arkansas and that Ms. Shiras is a resident of Pulaski County. The latter states that a justiciable controversy exists.

§ 12-2806 provides that any citizen denied rights granted to him under the Freedom of Information Act may appeal to the Pulaski County Circuit Court, but appellees assert that there is no showing that Ms. Shiras is a citizen, but only a .resident. Of course, the declaratory judgment act (Ark. Stat. Ann. § 34-2512 [Repl. 1962]) provides that the word “person” shall also mean, inter alia, a corporation of any character Whatsoever, so there is no doubt but that appellants had standing, under the declaratory judgment act, to have their rights and status declared by the court. Without delving into the distinction between “resident” and “citizen” (which is most often synonymous), § 12-2805 (Freedom,of Information Act) sets out very clearly:

“The time and place of each regular meeting shall be furnished to anyone who requests the information. [Our emphasis].
“In the event of emergency, or special meetings the person calling such a meeting shall notify the representatives of the newspapers, radio stations and television stations, if any, located in the county in which the meeting is to be held and which have requested to be so notified of such emergency of special meetings, of the time, place and date at least two (2) hours before such a meeting takes place in order that the public shall have representatives at the meeting.”

The only way that electors, citizens, or any other member of the public can receive full reports of what transpires in board or committee meetings is by information obtained from the news media. Without such reports, the Freedom of Information Act is without meaning. Of course, the public in general cannot take a trip to Fayetteville or Little Rock, or wherever else the board and its committees, may meet, in order to attend a session and learn what is being done. Necessarily, the information must be acquired from the sources mentioned. Really, the argument is so paradoxical that it defies analysis. At any rate, the language of the act, just quoted, makes clear that members of the news media are indeed interested parties, and we find no merit in the contention.

In concluding, we adopt the language of the Florida Supreme Court in Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, which succinctly, but accurately, sets forth our own views in the present litigation:

“Statutes enacted for the public benefit should be interpreted most favorably to the public.”

Reversed.

It is so ordered.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result reached insofar as this particular case is concerned. But except for the circumstances of this particular case, I agree with the judge of the Circuit Court, the Attorney General and the Board of Trustees of the University.

I have no quarrel with the policy declarations in the Freedom of Information Act. A public well informed as to actions of officials on public business, and the decisions made by them is essential to maintaining public confidence in public institutions and in restoring it where it is lost or impaired. The provisions of the act are decidedly beneficial for that purpose and the legislation should be classified and construed as remedial in nature.

I do think, however, that reading into the act a requirement that all committee meetings are public meetings under the statutory definition is more than a liberal interpretation of the act. It is, in my opinion, an extension made by rhetoric rather than reason. In the definition of “Public Meetings” it would have been so simple to have added the word “committee” somewhere if the General Assembly had intended the act, in derogation of common law, to be so comprehensive. Not only did it carefully avoid this, none of the words used is broad enough to encompass a committee of a bureau, commission, agency, board or organization. No one thinks of any of these words, in their common acceptation, as meaning committee, where the committee has no authority to act for its parent organization. See Adler v. City Council of City of Culver City, 184 Cal. App. 2d 763, 7 Cal. Rptr. 805 (1960); McLarty v. Board of Regents of the University System, 231 Ga. 22, 200 S.E. 2d 117 (1973). When it does have such authority, it becomes the alter ego of the body itself, and in my opinion subject to the same requirements of the Freedom of Information Act as its parent board, commission, agency, bureau, organization or governing body and its meetings become, to say the least, informal meetings of the board. But there is no indication in this record that the committee involved here was given any such actual authority. Furthermore, I cannot subscribe to the view that either ultimate favorable board action on a committee recommendation or usurpation of authority by it to act in a matter not referred to it by the parent organization is evidence of implied authority. Neither can I agree that the evidence shows that board action upon committee recommendations in this situation is either automatic or ceremonial or perfunctory.

But I attach great significance to a factor the majority considers insignificant. I agree with appellants that when a committee consists of a majority of the board itself, the committee can and, in all probability will, become the alter ego of the board, and its meetings, informal meetings of the board, particularly when any or all of the members of the board may attend. I cannot accept appellee’s argument that the chairman is not a member of the committee, simply because of his ex-officio status. This simply means that he is a member of all committees by virtue of his office as chairman. Black’s Law Dictionary, 4th Ed.

Until today’s decision, the most extreme position regarding committee meetings appears to have been taken by Florida courts. In Bigelow v. Howze, 291 So. 2d 645 (Fla. App. 1974), where, I submit, the reach of judicial notice was overextended, as I feel it has been by the majority here, the result reached and the answer to the question actually posed there is not nearly so extreme as its language or the result here. In that case a county commission had appointed a committee consisting of two of its five members and the tax assessor to investigate and report on the ability of two firms to do a comprehensive reappraisal of real and personal property in the county. The county attorney was an ex-officio member of the committee. A complete quotation of the actual decision follows:

We do not suggest that the committee cannot interview others privately concerning the subject matter of the committee’s business or discuss among itself in private those matters necessary to carry out the investigative aspects of the committee’s responsibility. Cf. Basset v. Braddock, Fla. 1972, 262 So. 2d 425. However, at the point where the members of the committee who are also members of the public body make decisions with respect to the committee’s recommendation, this discussion must be conducted at a meeting at which the public had been given notice and a reasonable opportunity to attend.
This court may take judicial notice of the fact that committee recommendations are often accepted by public bodies at face value and with little discussion. Therefore, unless the decision making process of a committee composed of two or more members of the public body appointing the committee is made in public, the salutory objectives of the Sunshine Law will have indeed become clouded.

In Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969) the trial court injunction affirmed only prohibited meetings or conference sessions “at which a quorum is present”. In Town of Palm Beach v. Gradison, 296 So. 2d 473 (1974), the committee involved was characterized by the Florida Supreme Court as a buffer to serve as the alter egos of the Town Councilmen to make tentative decisions guiding zoning planners and advising the Council as to their ultimate zoning ordinances. The court considered that much of the Council’s administrative and legislative decisional zoning formulation authority had been delegated to the committee. Where this is the case, I would agree with the Florida court.

But the Florida Supreme Court has finally said that a careful rereading of its opinions and the act fails to support the contention that prior decisions compel public meetings for acts of deliberation, discussion and deciding, prior to and leading up to affirmative formal action. Bassett v. Braddock, 262 So. 2d 425 (1972).

It can be argued with considerable force that the result of the extension made here is an impediment to informal discussions and exchange of information among committee members, and consultation by them with experts or informed individuals having special qualifications to speak upon problems being investigated by the committee. There is an appropriate investigative and exploratory stage preceding many actions by governmental bodies and agencies. At this stage, it may be said there are advantages to the public in permitting preliminary discussions in which there can be greater freedom of expression without fear of benefitting special interests, harming reputations, inviting pressure from special interests, creating a public image of ignorance by searching questions, producing demagogic oratory, exposing disagreements of subordinates with policy determinations they must administer, or “freezing” members into publicly expressed opinions they might well prefer to abandon. In such initial stages, it is well that much be done and said which is exploratory, experimental and hypothetical, and open meetings could prove to be an impediment to a free exchange of ideas of that sort. See Open Meeting Statutes: The Press Fights for the “Right to Know,” 75 Harvard Law Review 1199, 1202, 1219 (1962). The writer of that article, an advocate of the extension of Freedom of Information acts, demonstrates that a policy determination is involved in this language found at p. 1206:

. . . .Whether the courts will construe less explicit statutes as applying to subordinate committes and agencies is problematical. Since such groups have no power to make governmental decisions and since their recommendations must be considered in open session by the parent body, the need for public meetings is less compelling; indeed, privacy may facilitate the gathering of information as well as preliminary discussion. But if in practice recommendations are adopted with only perfunctory consideration by the parent grbup, the public will be deprived of information about the actual process of decision. And since there seems to be no particular reason for leaving subordinate groups always free to meet in private, the preponderant interest in informing the public seems sufficient to justify their inclusion.

Likewise, an Ohio court has recognized the impossibility of satisfactory accomplishment of the desired freedom of discussion and exchange of ideas essential to clear understanding and thinking under a spotlight or before a microphone. Dayton Newspapers, Inc. v. City of Dayton, 28 Ohio App. 2d 95, 274 N.E. 2d 766 (1971).

Public policy matters are involved. Fundamentally, the legislative branch declares public policy. If the common law is to be changed by extension of the Freedom of Information Act to all committees of every public board, commission, agency, organization or governing body, it should be done, as it was in California and New Jersey, by the General Assembly. See Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968); Comment, Access to Government Information (Blum), 54 California Law Review 1650, 1653 (1966); Wolf v. Zoning Board of Adjustment of Park Ridge, 79 N.J. Super 546, 192 A. 2d 305 (1903). The great disadvantage in courts’ attempting to declare public policy lies in the fact that attention is necessarily focused on the particular interests of the litigants. In contrast, the legislature has the advantage of having all perspectives presented and considered in making such determinations. This determination should have been left with the General Assembly where it belongs, both as a policy decision and as a change in the common law. Even the Florida Supreme Court has finally recognized the hazards of “judicial implementation.” Bassett v. Braddock, 262 So. 2d 425 (1972).

To say the least, all the court needs to decide today is that the committee consisting of a quorum of the board, as its alter ego, is subject to the same requirements of the Freedom of Information Act as the parent board. Courts should decide cases, not controversies.

I also agree with the result as to the standing of appellants, but cannot embrace all the particular reasons given in reaching it. In view of the efforts of appellee to have affirmative relief and in the absence of any showing that the standing of appellants to bring the action was challenged in the trial court, it appears to me that the question was waived and is raised for the first time on appeal. This is not a defect, if it is one at all, that goes to subject matter jurisdiction, so it is tardily raised. To say the least, if the challenge had been raised in the trial court, it is entirely possible that it would have been met there. See Sacramento Newspaper Guild v. Sacramento Board of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968).

I would reverse the circuit court judgment only to the extent indicated. *

       A question concerning race relations also was discussed, complaints having been made by an organization of black students called B-A-D relating to incidents occurring during “Beat Texas Week.”

       Counsel relied upon an opinion from the attorney general rendered on July 1, 1971, and it might be here stated that there is no contention but that the board acted in good faith; i.e., it considered its actions to be legal.

       Ms. Shiras had just been permitted to attend a meeting of the Legal Committee when the Student Affairs Committee gathered for its meeting in the same room.

      It is interesting to note that, according to the testimony, the board works by committees (authorized by the act which created the University) as a means of promoting efficiency and saving time, the main reason being the last. The record reflects that there are ten standing committees, and it is difficult to see how, with so many members on one committee, that much time could be saved since committee appointments are duplicated.

       In Comment, “Open Meetings Laws: An Analysis and a Proposal”, 45 Miss. Law Journal 1151, 1974, it is pointed out that only four states are without some type of open meetings legislation.

       Appellants cite and review cases from seven states and appellees cite and review cases from eight states, in some instances the parties referring to the same states.

       The Florida Freedom of Information Act, West’s F.S.A. § 286.011, in referring to public meetings, mentions those inter alia “of any board or commission of any state agency or authority”, the word “committee” not being included in the statute.

       The Chairman of the Student Affairs Cmmittee presented the report to the board, citing the (then) present regulation concerning the use of alcohol on campus, and then reading the committee’s proposed regulation. The minutes then reflect:
      “Dr. Miller moved, and Mr. Shults seconded, a motion that the new regulation be adopted. Dr. Kemp asked whether the regulation would be explained that the new regulation would only apply to the Fayetteville campus at this time. Mr. Shankle requested the new regulation proposed to be read aloud again. He asked clarification as to what areas it covered. Dr. Mullins explained that it applied only to students 21 years of age, or older, and their possible use of alcohol within the privacy of their dormitory rooms. There were comments concerning the effective date if the recommendation were to be adopted. In response to inquiries, Dr. Mullins pointed out that options would be available under which other students might choose to be housed in areas away from those where alcoholic use would be permitted. The motion was adopted.”

       See also Comment, Access to Governmental Information in California, (Blum) 54 California Law Review 1650, 1651, 1655, (1966).