author: Darrell Hickman, Justice.

text:
    Troy BROWN v. ARKOMA COAL CORPORATION
    82-92
    634 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered June 14, 1982

      Daily, West, Core, Coffman & Canfield, by: Michael C. Carter and Wyman R. Wade, Jr., for appellant.

      Shaw ér Ledbetter, by: J. Michael Shaw, for appellee.
   Darrell Hickman, Justice.

The issue in this case is whether a perfected security interest in certain equipment can be defeated by a judicial sale. The trial court held that Arkoma Coal Corporation had a perfected security interest in a John Deere road grader, a Wisconsin 4-cycle engine and a one ton flat-bed Ford truck that was not defeated by a judicial sale. But it held that the security interest was not perfected in a 1964 International Scout motor vehicle. Troy Brown, the appellant, purchased this equipment, in addition to some other, at a judicial sale and appeals the Sebastian County Circuit Court’s decision awarding the three items of equipment to Arkoma Coal Corporation. We find no error as to the road grader and engine but must reverse the court’s finding as to the Ford truck.

Arkoma Coal Corporation made several loans to Midwest Coal and Energy Corporation and secured the notes with security agreements, properly filed, on the equipment in question. But Arkoma did not note its lien on the certificates of title to the motor vehicles as Ark. Stats. Ann. §§ 75-160 and 75-161 direct. The City of Greenwood, Arkansas obtained a money judgment against Midwest Coal and issued a writ of execution to satisfy its judgment, attaching the equipment in question. At the sale, Troy Brown, who was the Mayor of Greenwood, purchased all of the equipment for $1,000.00. He bought the equipment individually and not as mayor. It is undisputed that no legal notice was given to Arkoma Coal Corporation of the sale. Nor is it disputed that Arkoma Coal had filed security agreements on all of the equipment. However, on the date of the sale, the president of Arkoma Coal Corporation learned on his own that a sale was to take place and caused a petition to be filed with the court to stay the distribution of the proceeds of the sale. Arkoma either did not pursue their petition, or was unaware of the court’s order confirming the sale six days later.

This suit is a replevin suit that was filed a year and a half later by Arkoma for the return of the equipment it claimed a security interest in. The trial court found that Arkoma had a superior right to the grader, engine and truck to that of Troy Brown, because there was no notice of the sale to Arkoma. He found Arkoma had neither waived its valid security interest nor was it estopped to assert its claim. In this regard the only serious consideration was whether Arkoma had either expressly or impliedly waived its claim by filing the pleading to stay the distribution. Both parties refer to Ark. Stat. Ann. § 85-9-306 (2) as authority. The statute reads:

Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Troy Brown argues that Arkoma, by filing the pleading, consented to the sale and falls within the category of “otherwise” authorizing the sale. The trial court correctly held that this was not a waiver of the security interest. A party holding a security interest can go against both the proceeds of the sale and the property. Ark. Stat. Ann. § 85-9-306, Comment 3. There is no evidence in this case Arkoma ever intended to waive its claim except for filing the petition and that is insufficient as a matter of law to waive a lien. See Nickles, A Localized Treatise on Secured Transactions Part II: Creating Security Inteests, 34 Ark. L. Rev. 559 (1981).

Brown also argues that since Arkoma did not file its replevin suit until one and a half years after the judicial sale, that amounts to ratification of the sale. That fact alone cannot be controlling. Perhaps if Arkoma had elected to only seek the proceeds of the sale, rather than the collateral, that might amount to ratification. See Nickles, supra, n. 728. We do not reach that because we cannot say that Arkoma made such an election.

The only real problems to us in this case are the fact questions. The appellant did not object during the hearing to the court sitting without a jury. But the court did note in the judgment that a jury trial had been requested and went on to find no question of fact was to be decided. Actually it appears the appellant wanted any disputed facts decided by a jury. Certainly there was a disputed question regarding whether the one ton Ford truck was an on-the-road vehicle and, therefore, subject to registration. It would appear that the truck would have to be registered with the State of Arkansas. (Arkoma did not perfect its lien by noting its interest on the certificate of title as required by Ark. Stat. Ann. §§ 75-160, 75-161.) The only testimony regarding this vehicle came from the president of Arkoma who testified that the Ford truck was probably an off-the-road vehicle used in a coal mine or used to transport material between coal mines. But he could not be certain. If it was not subject to registration, Arkoma should probably prevail. However, the matter is further complicated because it may be that Brown’s claim, based on the judicial sale, is still inferior to Arkoma’s because evidently the order of sale did not list the truck in question as one of the vehicles to be sold. Instead, another truck was listed which was a “water” truck — not a flat-bed truck. The court simply found that the one ton Ford truck was the property of Arkoma and the decree recites there were no questions of fact to be decided. Obviously there was at least one disputed question of fact and that should have been resolved either by the trial court with the consent of the parties or before a jury.

In our judgment there remained no other disputed facts before the court. Waiver and estoppel were presented as defenses because of the pleadings filed and the passage of time only. There appears to be no other basis for these arguments. If the appellant had desired these issues preserved for a jury he should have explicitly said so. These issues were submitted to the court without explicit objections. It is the duty of the appellant to make his record and we must resolve all doubts on behalf of the appellee on appeal. Orsby v. McGee, 271 Ark. 268, 608 S.W.2d 22 (1980). The trial court’s finding regarding the Ford truck is reversed and remanded and the remainder of the judgment is affirmed.

Affirmed in part, reversed and remanded in part.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    ARKANSAS LIVESTOCK AND POULTRY COMMISSION v. Dennis HOUSE
    82-29
    634 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered June 14, 1982

      Steve Clark, Atty. Gen., by; Roger W. Giles, Asst. Atty. Gen., for appellant.

      Van T. Younes of Adams, Covington ib Younes, P.A., for appellee.
   Steele Hays, Justice.

By this appeal we are asked to decide whether the discharge of an employee by the Arkansas Livestock and Poultry Commission is subject to review under the Administrative Procedure Act. The circuit court held it to be an adjudication and, hence, covered by the act. On appeal we reverse, holding the discharge of an employee to be an administrative decision and the circuit court is without jurisdiction to review those decisions.

Appellee House had been employed for several years as a livestock inspector for the Arkansas Livestock and Poultry Commission. In October 1978 he was discharged on the ground that alcohol was interfering with his job performance, which was otherwise quite acceptable. He was later reinstated to a probationary status pursuant to a grievance proceeding but subject to immediate discharge for drinking on the job, while in uniform or in a State-owned vehicle, or for failure to regularly attend meetings of Alcoholics Anonymous.

During the probationary period appellee was notified that his employment was again terminated for drinking and for failure to regularly attend meetings of Alcoholics Anonymous. A fact-finding panel again heard testimony from several witnesses including appellee and recommended against rehiring until such time as appellee had demonstrated voluntary rehabilitation. This recommendation was adopted and appellant then filed suit in circuit court, invoking the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 through 714 (Repl. 1976), tracking his allegations of error, for the most part, in accordance with the grounds for judicial review set out in Section 13 (h) of the act.

Appellant commission moved to dismiss the complaint on the ground that the termination of an employee is not an “adjudication” within the meaning of the act, which the court declined to grant, holding instead there was no substantial evidence to support appellee’s termination.

For reversal, appellant contends employee terminations are not subject to review under the Administrative Procedure Act and the trial court erred in not dismissing appellee’s complaint for lack of jurisdiction and second, appellee’s dismissal was supported by substantial evidence. We need not reach the second point, as the first point must be sustained.

It seems too obvious for serious argument that the Administrative Procedure Act, enacted in 1967, was never designed nor intended to create supervisory responsibility by the judicial branch of state government over the day-to-day actions of the executive branch, including the hiring and firing of personnel, but, rather, to establish procedures for hearings and notice (which meet due process requirements) in those functions of the executive branch which are basically adjudicatory or quasi judicial, particularly with respect to rule making, the renewal or revocation of licenses, and where, under law, an agency of the State must make orders based on the adjudication process. But it is only in the judicial functions that the Administrative Procedure Act purports to subject agency decisions to appellate review and then only as narrowly prescribed in the act. See J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943). It hardly need be said that firing employees is clearly an administrative act and not a matter that involves the quasi judicial function of an agency. If firing is subject to judicial review then we can think of no logical reason why hiring should not be also. And if hiring is, it follows that promotion would also come under our purview, and so on and on.

In Sikes v. General Publishing Co., Inc., 264 Ark. 1, 568 S.W.2d 33 (1978), we reviewed the fundamental distinction between administrative rulings and judicial functions in the separate branches of government, observing that appellate review under the act is confined to adjudications, which Webster defines as “a judicial determination” (New International Dictionary, 2d ed., 1939). Obviously, when and under what circumstances an agency, employee should be terminated is not a judicial function, but a basic and perfunctory part of the administrative routine of an agency in its discharge of public business and nothing would be more inimical to the separation of powers than for the judicial branch to claim the power to monitor such decisions.

Appellee argues that where the agency appoints a fact-finding panel, gives written notice to the employee, conducts a hearing, makes findings of fact and conclusions of law and generally underakes to proceed as if a judicial function were involved, it is estopped to deny that the proceeding is an adjudication as defined in the act. Appellee has given us no authority in support of the position and we find an essential requirement of estoppel (assuming a branch of state government was subject to that doctrine of the law) is lacking. Estoppel does not dictate that one who has taken a particular course of direction must continue irreversibly on that course; it is only where one has taken a certain course or position knowing that another is relying on that course and which, if altered, would leave him exposed, or in a vulnerable or defenseless position to his detriment, that estoppel comes into play. American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961); Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951). Here, appellee was not jeopardized by the grievance procedures, on the contrary, he was simply afforded an opportunity to plead his case, which he managed to do successfully the first time. And while the outcome of the second hearing was not favorable to appellee, he was not prejudiced by it. By giving the appellee the right to be heard on the issue of whether he had violated the conditions of his probation, the agency did not thereby subject itself to judicial review of what was so clearly an administrative act.

We find the circuit court was without subject matter jurisdiction, and we reverse with directions to dismiss the complaint.


author: Per Curiam. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    Levonia T. GREY v. STATE of Arkansas
    CR 82-112
    334 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered June 14, 1982

      Omar Greene, for petitioner.

      Wilbur C. “Dub” Bentley, Prosecuting Atty., Sixth Judicial District, for respondent.
   Per Curiam.

Levonia T. Grey filed a petition for a writ of certiorari alleging two reasons the writ should be granted. First, it stated that the bail of $75,000.00 was excessive, and, second, that the prosecuting attorney later filed an additional charge, for which an additional $25,000.00 bail was imposed. It is alleged this is part of a pattern to systematically deprive him of his constitutional right to bail.

The only record before us is a transcript of the bond hearing. The charges that have been filed against the petitioner are not listed but were alluded to by the attorneys at the oral argument in this matter. They include arson, conspiracy to commit arson and first degree battery, which are all serious charges.

After the hearing the trial judge reduced the bond which had been $150,000.00 to $75,000.00.

In order for us to say that the trial court was wrong in determining that $75,000.00 was a proper amount of bail to be set, we would have to find his judgment clearly erroneous. We have no basis at all to substitute our judgment for the trial court’s as to what amount would be proper.

It is suggested in the dissent that the trial judge did not follow the procedures set forth in the Rules of Criminal Procedure regarding bail. See A. R. Cr. P. Rule 9. But that issue was not raised below nor has it been raised on appeal and we do not determine on our own such issues. Cain v. Ark. Podiatry Board, 275 Ark. 86, 628 S.W.2d 295 (1982); Wilson v. Lester Hurst Nursery, 269 Ark. 19, 598 S. W.2d 407 (1980).

An allegation was made that the prosecuting attorney intended to continue filing charges to prevent the release of the petitioner and that he has filed a separate charge and an additional $25,000.00 bail has been imposed, but we have nothing before us to prove the prosecutor is acting in bad faith. We cannot presume facts nor make judgments on the basis of bare allegations.

Writ denied.

Adkisson, C.J., and Purtle, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. Although the record is not as complete as it should be, petitioner, Levonia T. Grey, is apparently charged in Pulaski County Circuit Court, Fourth Division, with arson, two first-degree batteries, and various conspiracies relating to the main charges, for which bond was set at $100,000. One of these charges was filed subsequent to the filing of the petition in this Court.

In setting bail the trial court completely ignored the United States and Arkansas Constitutions; the Arkansas Rules of Criminal Procedure which were enacted by our legislature and adopted by this Court; and a recent decision of this Court, Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).

The purpose of bail is to ensure the accused’s presence at trial. Therefore, bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment of the United States Constitution and under Article 2, § 8 and § 9 of the Arkansas Constitution. Stack v. Boyle, 342 U.S. 1 (1951). In considering the purpose for which bail is set, we emphasized in Thomas, supra, that “Money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.”

Mr. Dub Bentley, Prosecuting Attorney for the Sixth Judicial District, argued this case orally before the Arkansas Supreme Court and stated:

The purpose in setting the bail at this amount is not to deny him bail but rather to assure his presence not only for his trial but 14 other trials in which he will be a witness.

Rule 8.5 (c) (ii) requires the prosecuting attorney to recommend bail. Such a recommendation could partially account for the circuit court’s apparent confusion as to the purpose of bail. Here, it is unknown how much of the $100,000 is to assure the petitioner’s appearance in court for his own trial and how much is for the illegal purpose of assuring his presence in court as a witness at someone else’s trial.

Furthermore, in fixing bail in this case, the trial court failed to comply with the provisions of A. R. Cr. P. Rule 9. For example, Rule 9.2 (a) provides that “The judicial officer shall set money bail only after he determines that no other conditions will reasonably ensure the appearance of the defendant in court.” This Court addressed this requirement in Thomas, supra, and specifically held at page 522 of that opinion that a “determination that no other condition would ensure petitioner’s appearance in court” be made before setting money bail. Here, the trial court made no such determination.

Another example of the trial court’s failure to comply with the rules is the fact that the trial judge made no findings as to the “facts relevant to the risk of wilful nonappearance” as required by Rule 9.2 (c). This rule provides:

(c) In setting the amount of bail the judicial officer should take into account all facts relevant to the risk of wilful nonappearance including:
(i) the length and character of the defendant’s residence in the community;
(ii) his employment status, history and financial condition;
(iii) his family ties and relationship;
(iv) his reputation, character and mental condition;
(v) his past history of response to legal process;
(vi) his prior criminal record;
(vii) the identity of responsible members of the community who vouch for the defendant’s reliability;
(viii) the nature of the current charge, the apparent probability of conviction and the likely sentence, in so far as these factors are relevant to the risk of nonappearance; and
(ix) any other factors indicating the defendant’s roots in the community.

There are no findings by the trial court indicating that any of the above factors were considered in setting the bail.

The trial court also ignored Rule 9.2 (e) which states that an appearance bond and any security deposit already required shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct. Here, at least two of the charges against petitioner arose out of the same conduct as the other charges, but whether the trial court took this into consideration in setting the bond is unknown.

Lastly, it should be noted that in Thomas, supra, we held that Rule 9.2 contemplates the use of the least restrictive of the three types of money bail set out in Rule 9.2. This holding was apparently ignored by the trial judge, who obviously used the most restrictive type of money bail arrangement in order to keep the petitioner in jail until his trial and possibly in jail until the 14 other cases in which he is to be a witness come to trial. This could be an indefinite length of time.

On a better day this Court in Thomas, supra, recognized that the fixing of bail requires the payment of a considerable sum to a professional bail bondsman and that this constitutes a substantial penalty before trial. This Court went on to conclude in that case, a conclusion equally applicable to this case, that “The spirit of the fixing of bail by the trial court contravened the drafting committee’s view that ‘money bail in any form ought to be a last resort and should be used only to assure the defendant’s appearance.’ ”

For the reasons stated I would reverse this case and remand to the trial court and require that reasonable bail be set under the procedures set out by this Court and the legislature as reflected by the Arkansas Rules of Criminal Procedure.

John I. Purtle, Justice,

dissenting. In addition to the reasons given by the Chief Justice in his dissent, with which I wholly agree, I wish to add additional reasons for my separate opinion.

To start with, Amendment 8 to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Art. 2 § 9 of the Constitution of the State of Arkansas states:

Excessive bail shall not be required, nor shall excessive fines be imposed; nor shall cruel or unusual punishment be inflicted; nor witnesses be unreasonably detained.

The petitioner filed his petition at a time when he was charged with five felony counts. Two are for conspiracy to commit two of the other acts charged. He was initially placed under a $150,000 bond and the judge lowered the bond to $75,000. After he filed his petition for habeas corpus he was charged with an additional felony and bond was set at $25,000 which raised his total present bond to $100,000. By comparison these are fairly minor felonies.

It was admitted by the prosecuting attorney that the petitioner was being held as much as a witness as he was an accused. In response to a question at the hearing, the prosecuting attorney made the statement that he and his staff could be prepared for trial in regard to the charges against the petitioner within one week. Hopefully, the question before this court will be moot by the time this opinion is published.

The petitioner is 26 years of age and has been a lifelong resident of Arkansas. He did spend two years outside Arkansas while attending college in Milwaukee. Additionally, he spent some time serving in the armed forces of the United States. He is a veteran with a 40% disability rating. He was regularly employed before his. arrest and has been promised employment if he is released. In fact, he has worked for Bob Troutt since he was 15 years of age except for the time he was away in college and in the armed forces. He has never been convicted of a felony.

It appears to me that the petitioner is being held under unreasonable bond for the simple reason that he is employed by Robert Troutt. I do not care what kind of vendetta the Sheriff of Pulaski County has against Troutt, but whatever it is, he should not be permitted to utilize the courts as willing accomplices to the disruption of the processes of orderly justice. This petitioner deserves and is guaranteed the right to have reasonable bail set for him based on the guidelines contained in the Chief Justice’s opinion. In accordance with our constitution, he is innocent until proven guilty. Therefore, I would set a reasonable bond in an amount which would be sufficient to expect him to appear for trial.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    James E. DAVIS v. John W. GOODSON, Circuit Judge
    81-229
    635 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982
    [Rehearing denied July 19, 1982.]

      C. Wayne Dowd of Dowd, Harrelson ir Moore and N. Lynn Cooksey, for petitioner.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for respondent.

      Purtle, J., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

The Miller County Circuit Court held petitioner, an attorney, in contempt of court for advising his client in open court that it was not necessary for him to follow a lawful order of the court. Petitioner was sentenced to 24 hours in jail and fined $250. On appeal, we affirm.

The conduct which gave rise to the trial court’s finding of contempt occurred after the client’s case had been called. As petitioner and his client approached the bench the judge stated that he believed that the client was drunk. The following exchange then took place:

BY THE COURT:
Let’s take a breathalizer and see. Go with the sheriff.
BY MR. DAVIS:
Just a minute. I don’t see why he should be made to take one. It’s self-incriminatory, and he should be advised that he —
BY THE COURT
Because he is staggering and coming around here in open court, and I asked him if he’s had anything to drink, and he says he hadn’t.
BY THE DEFENDANT:
That was because of my boots that —
BY MR. DAVIS:
You don’t have to take the test.
BY THE COURT.
Yes, he will take the test, Mr. Davis. Mr. Sheriff, take him down. Now, if you want to get an order to stop me, you go ahead and get one, sir. But when I order one here in front, don’t you tell somebody they don’t have to do it.
BY MR. DAVIS:
He’s my client, Your Honor. I can advise him as I see fit. If I’m wrong —
BY THE COURT:
If I’m wrong, you can take me to the Supreme Court, but don’t get here in front of this court and tell somebody not to obey an order that I have just given. You hear me, sir?
BY MR. DAVIS:
I hear you.

Although an attorney has a duty to represent his client zealously, he should not engage in conduct which offends the dignity of the court. An attorney may make a proper objection to a ruling of the court but then should abide by the ruling so long as it remains in effect. Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953). Here, petitioner was clearly in contempt of court when he specifically advised his client in open court that he could disregard a lawful court order which had just been made.

Petitioner does not question the court’s authority to order a breathalizer but alleges that the following statement did not constitute an order: “Let’s take a breathalizer and see. Go with the sheriff.” It is obvious from petitioner’s immediate response that even he believed it to be an order:

BY MR. DAVIS:
Just a minute. I don’t see why he should be made to take one. It’s self-incriminatory, and he should be advised that he —

The statement was clearly taken as an order by the court and all present, and it was, in fact, an order. See Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963).

Petitioner also argues that he merely advised his client that he did not have to take the test, which is different from advising his client to disobey the order. We fail to see or appreciate this fine distinction under the facts of this case.

Affirmed.

Dudley, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority in this case in that I do not believe the applicable statutes were followed and I cannot find contemptuous behavior on the part of the petitioner.

Ark. Stat. Ann. § 34-904 (Repl. 1962) states:

Whenever any person shall be committed for a contempt under the provisions of this act (§§ 34-901 — 34-906), the substance of his offense shall be set forth in the order, or warrant of commitment.

This procedure was not followed by the court in this case. The court order which was entered on the docket sheet stated:

Def appeared drinking — intoxilyzer test ordered — Atty Davis in open ct. told def not to take the test.. . . Davis found in contempt — fine 250 and 24 hr in jail —

This brief annotation by the judge cannot be held to set out the substance of the offense of contempt by any stretch of the imagination.

I feel that the wording of the order “Davis in open ct. told def not to take the test” is not the true situation as reflected by the record. I listened to the tape of the proceedings involving the petitioner and the court, and I could nowhere hear any disrespect in petitioner’s tone or wording to the court. It seems as though the petitioner never even got a change to finish out his objections before the court would interrupt him. Under the Code of Professional Responsibility an attorney has the right and duty to advise his client as to the law. If an attorney advises a client in good faith even though that advice may be incorrect, he should not be held in criminal contempt of the court for doing what he feels is proper under the circumstances. The petitioner stated, "You don’t have to take the test.” This can be interpreted more than one way. Having listened to the tape and the voices and tones thereon, I do not feel that the petitioner ordered his client not to take the test but was merely advising him that he had the right not to take the test. Whether his client actually did have the right to refuse to take the test is not in issue. The issue is whether an attorney can advise a client in good faith as to what he believes the law to be without fear of being thrown in jail. To uphold a contempt citation in this case would, in my opinion, discourage attorneys from attempting to put forth their best effort in the defense of their clients. In any event, an attorney should be warned by the court prior to a finding of contempt and should definitely be afforded an opportunity to defend himself as to the charges.

I respectfully dissent.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    Danny SANDERS v. STATE of Arkansas
    CR 82-2
    635 S.W.2d 222
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Allen & Heuer, by: Tom Allen, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Following a trial by jury appellant, Danny Sanders, was sentenced as a habitual offender to 20 years on each of two counts of aggravated robbery and to 60 years for rape. On appeal, we affirm.

On July 5,1981, a husband and wife were camped at the Oil Trough Ferry near Batesville. About 2:00 a.m. they were awakened by a man in their tent who told them that he had a .38 pistol and that he wanted their money. The husband immediately turned on a spotlight, at which time they realized there were four men in the tent, two armed with guns and two with knives. Later a fifth accomplice came into the tent. The robbers took the $11.00 that the couple had; the husband was then forced to accompany three of the men to the tent-trailer of people camped nearby. Meanwhile, appellant and another man stayed in the tent and raped the wife.

Several weeks later a deputy sheriff showed the victims photographs of four suspects. The wife picked out appellant as being one of her assailants. The husband picked appellant as a look alike but was unable to make a positive identification. At trial appellant was positively identified by each victim.

Appellant first argues that the victims’ in-court identification of appellant should have been excluded because it was unreliable. Appellant alleges that the following factors point to unreliability: The wife, in a handwritten statement to the police, stated that her assailants referred to each other as Ricky and Bobby; appellant’s name is Danny. The wife at one time testified that appellant’s face was clean shaven; yet there was some evidence that appellant had a mustache and goatee at the time of the rape. The wife stated she did not remember any distinguishing characteristics about appellant; yet he had numerous tattoos on his arms and was small (5T" and 115 pounds). The husband positively identified appellant at trial; yet before trial was unable to make a positive identification from a photograph.

It is not argued that the procedures leading to the identification were constitutionally infirm; therefore, the reliability of eyewitness identification is a question for the jury. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976). Although the wife could recall very few of appellant’s physical characteristics in describing him to the police, her identification of appellant both in court and by picture was always positive and unwavering. There was testimony that the spotlight in the tent was on during the rape, and the wife testified that she looked directly at appellant. The credibility of the witnesses and the weight to be given to their testimony was a question for the jury.

Appellant argues that the trial court erred in allowing the State to introduce a photograph depicting appellant as clean shaven on the date of his arrest. The appellant called several witnesses, most of them family members, who testified that the appellant had facial hair on the date of the offenses, but had shaved it after he was arrested. The photograph was relevant to the testimony of those witnesses who stated that the appellant shaved his face only after he was incarcerated because the photograph shows him clean shaven on the date of his arrest. A juror could draw an inference of either dishonesty or faulty perception based on this evidence.

Appellant argues that the trial court erred in refusing to order that appellant be allowed to take the depositions of two out-of-state persons who were called as witnesses at the trial by the prosecution. Appellant alleged that the witnesses refused to speak with defense counsel; therefore, he could not adequately prepare for trial. However, appellant has failed to show how he was prejudiced by his not being allowed to take their depositions before trial. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). Both witnesses testifiedat trial and defense counsel had an opportunity to cross-examine them. There is nothing to indicate that appellant was not furnished with the witnesses’ statements after direct examination as required by Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). Appellant cites A. R. Cr. P. Rule 17.4 (Repl. 1977) and Ark. Stat. Ann. § 43-2011 and § 43-2011.1 (Supp. 1981), to support his argument but neither the statutes nor the rule provides for the taking of a deposition under the circumstances present in this case. In light of the above considerations, we cannot say that the trial court abused its discretion in refusing to order the depositions.

Appellant argues that the trial court erred in limiting his attorney’s fee to the statutory amount of $350.00 as set out in Ark. Stat. Ann. § 43-2419 (Repl. 1977). We disagree. The attorney submitted a bill of $4,625.00 to the county for services rendered pursuant to his appointment in this case. The trial court ruled that the charges were reasonable but correctly refused to order payment in full, citing precedent of this court and the statutory limit of $350. State v. Ruiz & Van Denton, 269 Ark. 331, 602 S.W.2d 625 (1980).

Appellant now argues on appeal that Ark. Stat. Ann. § 43-2419 (Repl. 1977) violates various other provisions of the state and federal constitutions. However, these objections'to the statute were not raised in the trial court and this court will not consider arguments raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I concur with the result but would add that the appellant’s attorney has not demonstrated that he has been singled out to represent this indigent defendant, or others, to his obvious legal detriment.

It is part of the duty and responsibility of any practicing attorney to do his part to represent individuals in the locality in both civil and criminal matters who cannot afford counsel. All lawyers must bear some burden in administering the justice system. See ABA CANON 2, Ethical Consideration 2-25. [Code of Professional Responsibility and Canons of Judicial Ethics.]

It may be possible in a given criminal case that an indigent’s attorney might make a showing that he has been deprived of property without due process of law. That is a theoretical possibility. See State v. Ruiz, 269 Ark. 331, 602 S. W.2d 625 (1980). But a bare showing that numerous hours have been invested cannot in my mind even raise that issue, and that is essentially all the appellant’s attorney has done.


author: Richard B. Adkisson, Chief Justice.

text:
    Billy L. WOOD v. STATE of Arkansas
    CR 82-75
    635 S.W.2d 224
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Benny E. Swindell, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Following a trial by jury, appellant, Billy Wood, was convicted of rape and sentenced to 20 years in the Arkansas Department of Correction. On appeal, we affirm.

The victim was hitchhiking from Clarksville to her home near Salus when she was picked up by appellant and his nephew. Instead of taking her home, appellant turned off the highway on to a dirt road and stopped. Appellant told his nephew to get out and go behind the car. He threatened the victim with a knife, made her get out of the car, and raped her. He then instructed his nephew to return to the car and both men drove away, leaving the victim partially dressed on the road. She walked about four miles before neighbors gave her a ride home, and one of them testified that she appeared nervous and upset.

Upon arriving home she told her husband that she had been raped. They agreed not to report the incident to the police because they were new to the community and were afraid the police would not believe them. Over two years later the husband threatened to kill appellant after learning that he was the rapist. During the investigation of the husband’s threat on appellant’s life, the victim reported the rape. The police then questioned appellant who, at first, denied any knowledge of the rape; later, at trial, his defense was that of consent.

Appellant argues that the trial court erred in refusing to give the following instruction:

You are instructed that if you find from the evidence that Deborah Kersen failed to make complaint immediately after the alleged commission of the offense, you may consider this in determining whether she gave her consent or not.

Appellant relies on Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909), where we held that it was error to refuse to give this evidentiary instruction. However, as explained in AMCI 200, Comment, most evidentiary instructions of this nature are no longer appropriate because under our Uniform Rules of Evidence the weight to be given the evidence is a matter for counsel to argue and for the jury to decide, once the trial court has determined that such evidence is admissible. See also Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982). Here, the jury was properly instructed on the applicable law of rape by the giving of AMCI 1803.

Appellant argues that the trial court erred in repeating, at the jury’s request, the definition of “forcible compulsion” without repeating all the other instructions. The jury had returned to the courtroom, unable to reach a verdict, when the following exchange took place:

A JUROR:
And, we’d like the definition of what the law says what rape is.
THE COURT:
The definition of rape?
THE JUROR:
Forcible rape.
THE COURT:
All right. The definition that I gave you with reference to rape — and you want the forcible compulsion part of it, I take it. Is this right? You want the definition of what forcible compulsion is?
THE FOREMAN:
Yes.

The judge then read them the AMCI definition of “forcible compulsion” but did not reread any of the other instructions or give the jury a cautionary instruction.

It is within the province of the presiding judge to recall the jury and given them further instructions when, in the exercise of a proper discretion, it is necessary to do so in the furtherance of justice. Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). It is not always necessary in such cases that he should repeat the whole charge. Harrison v. State, supra.

We have held that instructions must be taken as an entirety and one instruction should not be emphasized more than any other. St. Louis, Iron Mountain and Southern Railway Company v. Reed, 88 Ark. 458, 115 S.W. 150 (1908). It is only when the j ury fails to understand a certain one, and does understand the others, that one should be read over to them without reading the others. St. Louis, Iron Mountain and Southern Railway Company v. Reed, supra. Here, the rereading of the definition of “forcible compulsion” did not unduly emphasize one instruction at the expense of the others, and it is clear from the record that the jury wanted that particular instruction repeated.

Appellant also argues that the trial court should have cautioned the jury that the instruction on "forcible compulsion” was only part of the case; however, appellant did not request such a cautionary instruction at that time. Under these circumstances, it was not error for the trial court to reread the portion of the instructions specifically requested by the jury without giving a cautionary instruction.

Appellant argues that the trial court erred in refusing to order the prosecutor to provide appellant with the victim’s statement prior to trial. Appellant made a motion for disclosure of the statement but the record does not reflect whether appellant’s motion was ever brought to the attention of the trial court, nor is there any indication that the court ever ruled on it. It is incumbent upon the moving party to obtain a ruling on an issue or motion in order to preserve it for appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.


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

text:
    John HALL v. Charles RAGLAND, Commissioner of Revenues et al
    81-260
    635 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Harmon & Honeycutt, for appellant.

      James Eads, Jr. and Wayne Zakrzewski, Revenue Division, Department of Finance and Administration, for appellee Charles Ragland.

      Wallace, Hilburn, Clayton, Calhoon ir Forster, Ltd., by: Larry C. Wallace and Joseph H. Purvis, for appellees City of North Little Rock and City of Mountain Home.
   George Rose Smith, Justice.

In this taxpayer’s suit for a declaratory judgment the appellant challenges the constitutionality of Acts 133 and 861 of 1981, under which North Little Rock and a few other municipalities have voted to levy a 1% local sales tax. Ark. Stat. Ann. §§ 19-4513 et seq. (Repl. 1980 and Supp. 1981). The appellant contends that the 1981 acts are void because they extend the provisions of a prior act by reference to its title only, in violation of Article 5, § 23, of the Constitution, and because they are local acts, in violation of amendment 14. The chancellor upheld the validity of the 1981 legislation.

The basic statute authorizing the levy of a municipal sales tax was Act 990 of 1975. Section 1 (a) of that act restricted its operation to cities having a population of more than 30,000 and being located in a border county, which limited the application of the law to Fort Smith and Fayetteville. In other respects Act 990 was a comprehensive statute providing for a local election to approve the levy, for the collection of the tax by the Commissioner of Revenues, for its distribution to the cities through the state treasury, and for other administrative details. Act 990 was amended in 1977 and 1979 to extend its provisions to a few other cities.

In 1981 the legislature adopted Act 133, amending Act 990 to include all cities of the first class, and then adopted Act 861, further amending Act 990 to include all cities and incorporated towns. We need quote only Act 861, which is entitled: “An Act to Amend Sections 1 and 2 of Act 990 of 1975, as Amended (Ark. Stats. 19-4513 and 19-4514); and for Other Purposes.” The rest of Act 861 provides:

SECTION 1. Section 1 of Act 990 of 1975, as amended, the same being Arkansas Statute 19-4513, is hereby amended to read as follows:
“Section 1. The following words shall have the following meanings unless a different meaning clearly appears from the context:
(a) The term ‘City’ shall mean any city of the first class, city of the second class, or incorporated town.
(b) The term ‘Commissioner’ means and refers to the Commissioner of Revenues of the State of Arkansas, or any of his duly authorized agents.”
SECTION 2. Section 2 of Act 990 of 1975, as amended, the same being Arkansas Statute 19-4514, is hereby amended by adding subsection (j) as follows:
“(j) Any city may provide in its ordinance authorized by this Act for a rebate from the city for taxes in excess of twenty-five dollars ($25.00) paid to the city on a single transaction.”
SECTION 3. It is hereby found and declared by the General Assembly that there is a great need for immediate improvement of municipal services and a stable source of revenue to finance such vital local government services. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the protection of the public peace, health and safety shall take effect and be in full force immediately on its passage and approval.

We first turn to the argument that Act 861 is contrary to Article 5, § 23, which reads: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revised, amended, extended or conferred shall be reenacted and published at length.” Here the question is whether Act 861 improperly amended Act 990 or improperly extended its provisions, the references to “revive” and “confer” not being pertinent.

The language of the 1874 constitution was derived from a similar Article 5, § 23, of the 1868 constitution. In an early case we said that the object of the constitutional provision was “to prevent that system of amendments, which, instead of inserting the amendment or alteration, together with so much of the old law as was retained, provided... that a given law should be amended as follows, to wit: in a given section or line, strike out given words and insert others, leaving the court, by this direction, to make the amendment itself and make a new law out of the two.” Palmore v. State, 29 Ark. 248 (1874), followed in Perkins v. DuVal, 31 Ark. 236 (1876). After the adoption of the 1874 constitution we adhered to the view expressed in Perkins. Scales v. State, 47 Ark. 476, 1 S.W. 769, 58 Am. Rep. 768 (1886).

In actuality we have seldom encountered statutes attempting to amend earlier acts by merely substituting one word or phrase for another, the procedure condemned in Palmore. Such an instance did arise in Rider v. State, 132 Ark. 27, 200 S.W. 275 (1918), where the amending statute merely provided that wherever Act 310 of 1909 read “Charleston District of Franklin County” it was amended to read “Charleston District of Franklin County and Barham and Wittich Townships of Franklin County.” We held the amending statute to be in violation of the Constitution.

In other contexts, however, we have in about twenty-five cases passed on the validity of statutes that were said not to have complied with the requirement in the Constitution that “so much [of the earlier statute] as is revived, amended, extended or conferred shall be reenacted and published at length.” We find it impossible to completely harmonize all the language in our earlier cases. Some of our holdings simply conflict with others. We cannot conscientiously decide the present case without recognizing those conflicts and following what we think to be the better rule.

We are sure that the intent of the Constitution was misconstrued, twelve years after its adoption, in Watkins v. Eureka Springs, 49 Ark. 131, 4 S.W. 384 (1886). There one section of an act provided that “the law now in force governing in cases where counties are authorized to call in their floating indebtedness, shall apply and govern in proceedings had by counties, cities or incorporated towns.” Although the act in question did not expressly purport to amend any earlier statute, we held it to be invalid because it did not re-enact the act authorizing counties to call in the evidence of their indebtedness. This language in the opinion is no longer law:

But can the operation of the provision [applicable to counties] be extended or the power given by it conferred upon cities, by a general reference to the former law? We apprehend that it was just this sort of blind legislation the Constitution intends to prohibit when it says the provisions of a law shall not be “extended or conferred” without “re-enacting” the part “extended” or “conferred.” It may be that no legislator was misled by this act or failed to perceive all that it was desired it should accomplish. Of that we have no means of judging. It is sufficient that the Constitution renders such an effort at legislation unavailing.

The error in the Watkins case was effectively corrected in 1915, but we neglected to overrule or even cite Watkins. State v. McKinley, 120 Ark. 165, 179 S.W. 181 (1915). In McKinley we recognized the validity of “reference statutes,” such as the one invalidated in Watkins, by approving this language in an Alabama opinion: There is a class of statutes, known as “reference statutes,” which impinge upon no constitutional limitation. They are statutes in form original, and in themselves intelligible and complete — “statutes which refer to, and by reference adopt, wholly or partially, pre-existing statutes. In the construction of such statutes, the statute referred to is treated and considered as if it were incorporated into and formed a part of that which makes the reference. The two statutes coexist as separate and distinct legislative enactments, each having its appointed sphere of action; and the alteration, change, or repeal of the one does not operate upon or affect the other.” Phoenix Assurance Co. v. Fire Department, 117 Ala. 631, 23 So. 843, 42 L.R.A. 468. Such statutes are not strictly amendatory or revisory in character, and are not obnoxious to the constitutional provision which forbids a law to be revised, amended, or the provisions thereof to be extended or conferred by reference to its title only. That prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original act are usually unintelligible.

The Watkins opinion contained another misleading statement, that the constitutional provision now before us was meant “to lay a restraint upon legislation where the bill was presented in such form that the legislator could not determine what its provisions were from an inspection of it.” That overbroad statement was quoted, albeit harmlessly, as recently as 1968 in City of Manila v. Downing, 244 Ark. 442, 425 S.W.2d 528.

The constitutional provision in question relates to the situation in which the legislature is passing a bill for the purpose of modifying in some way a certain previous law. In that situation it is hardly possible for the amending act to be drawn in such a way as to explain its full effect without any legislator having to look at the act being modified. That point was made clear in Scales v. State, supra, when we said:

It is well settled that this provision does not make it necessary, when a new statute is passed, that all prior laws modified, affected or repealed by implication should be re-enacted. If we should so hold a large part of the laws of this state would have to be re-enacted and republished at every session of the legislature, and some of them many times over. ... To make the provision mean that would be an absurd construction.

To illustrate the point, Act 57 of 1981, now compiled as Ark. Stat. Ann. § 19-2203, was entitled: “An Act to Amend Section 3 of Act 491 of 1921; and for Other Purposes.” It might have been better if the title had indicated the nature of the proposed amendment, but there is no such constitutional requirement. The act itself contains only one section, which amends a section in the earlier act “to read as follows.” The section is long, more than a printed page. No legislator or anyone else could determine the changes made by the new act without comparing it word for word with the 1921 act being amended. But Act 57 complied strictly with the Constitution by re-enacting and publishing at length that part of the earlier act being changed. The constitutionality of Act 57, as far as Article 5, § 23, is concerned, cannot be doubted. There are scores of similar amendatory statutes now in force, all of which would be imperiled if we adopted the literal meaning of the language in the Watkins opinion.

It is plain enough ^hat there is no requirement that an amendatory statute be so self-sufficient that no examination of the act being amended is needed for a complete understanding of the changes being made. On the other hand, we recognize the possibility that a legislative bill might contain a “re-enactment” of so few words in a prior statute as to fall within the prohibition in Palmore v. State, where we condemned the mere substitution of one word for another.

That impermissible brevity, however, is not to be found in the statute under attack, Act 861, which we have quoted in full. It re-enacts in fulfl the definition of the term “city,” which is being changed. It adds a new subsection (j) to Section 2 of Act 990, permitting a city to authorize a rebate of taxes in excess of $25 paid in a single transaction. Furthermore, the act contains an emergency clause referring to the immediate need for a stable source of revenue to finance an improvement in needed municipal services. An emergency clause has been considered in determining the validity of a statute in a case of this kind. Hollis & Co. v. McCarroll, 200 Ark. 523, 140 S.W.2d 420 (1940). It cannot be said that Act 861 contained such a marked lack of information as to amount to a violation of the Constitution.

In reaching this conclusion we have carefully studied the case of Texarkana-Forest Park etc. Dist. No. 1 v. State Use Miller County, 189 Ark. 617, 74 S.W.2d 784 (1934), cited by the appellant. That case had its remote origin in Act 126 of 1923, a complete and comprehensive act authorizing the creation of suburban improvement districts for various purposes, including the construction of streets, roads, waterworks systems, gas pipe lines, sewer systems, and other improvements. Section 24 of the act limited its application to counties having more than 75,000 inhabitants. By Act 183 of 1927 the legislature amended Act 126 to make it applicable to all counties. Act 183 repealed Section 24 of the earlier act and added several other sections designed to increase the scope of the original law, such as a section permitting a suburban improvement district to include land in two or more counties and a section reducing from 10,000 to 6,000 the minimum population of those cities near which a suburban improvement district could be formed.

In the Texarkana case the court, in a 4-3 decision, held that Act 183 of 1927, the amending act, violated Article 5, § 23, of the Constitution. The court first relied on the Watkins case, supra, which, as we have seen, had in effect been overruled by State v. McKinley, supra. The opinion then copied eight additional citations from Farris v. Wright, 158 Ark. 519, 250 S.W. 889 (1923), but for the most part those cases were actually contrary to the Texarkana holding and had been cited in Farris for a quite different reason. The court rested its final conclusion squarely on Rider v. State, supra, saying that in Rider “we had before us, in effect, the exact question here presented.” In Rider, however, the amending statute had merely substituted for the words “Charleston District of Franklin County,” wherever they appeared in the statute being amended, the words “Charleston District of Franklin County and Barham and Wittich Townships of Franklin County.” Thus the Rider case merely applied the basic principle announced in Palmore v. State, supra, and was certainly not a basis for the holding in the Texarkana case. In fact, the Texarkana decision stands alone during the past sixty years or more in its holding that an amending statute which adds sections to a previous act must also re-enact the earlier statute in its entirety. Such a rule would invalidate hundreds and perhaps even thousands of amendatory statutes that have actually complied strictly with the constitutional requirement that the amended provisions be re-enacted. We have no hesitancy in overruling the Texarkana case.

The appellant’s second point, that Act 861 is a local act, does not require extended discussion. The chancellor held that Act 990 was not local even though it applied only to Fort Smith and Fayetteville. We do not reach that issue, because the effect of Act 861 was to convert Act 990 into a general law, applicable alike to all cities and towns throughout the state. Ordinarily, the legislature cannot amend a local act, Johnson v. Simpson, 185 Ark. 1074, 51 S.W.2d 233 (1932), but that is because the amending act is itself a local act. Here, however, the amending act made Act 990 a general law. The legislature could have reached precisely the same result by re-enacting Act 990 in its entirety, with the broader definition of a city — a consideration that is not applicable to most amendments of local acts. Consequently there was no violation of the principle that generally prevents the passage or the amendment of a local act. This point of distinction was completely overlooked in the opinion on rehearing in the Texarkana case, where the court merely stated the general rule that a local act cannot be amended.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Rather than determine whether our cases are inconsistent, I have tried to determine whether they are consistent. Rather than see if the constitution and our cases can condone this legislation, I have sought to determine if this legislation complies with the constitution and the principles of law set forth in our cases. In doing so, I would reach an opposite result because there is a common theme that runs throughout our cases; that is, whether the amendatory legislation can stand alone on its face and notify any legislator of its purpose.

The intent of Article 5, § 23 of the constitution is to insure that members of the General Assembly are given fair notice of the effect of an amended act. Of course, that principle may not have always been consistently applied since no two pieces of legislation are the same and, therefore, our cases are not all alike. But our approach has been consistent. And that is to make certain Article 5, § 23 has some force and effect.

In Watkins v. Eureka Springs, 49 Ark. 131, 4 S.W. 384 (1886), we held a proposed amendment invalid because it was “blind legislation.” Regarding Article 5, § 23 we said:

They [The framers of the Constitution] meant only to lay a restraint upon legislation where the bill was presented in such form that the legislator could not determine what its provisions were from an inspection of it. ... The language of the provision is so broad that a liberal construction would hamper legislation, almost to the extent of prohibiting it.

The majority interprets State v. McKinley, 120 Ark. 165, 179 S.W. 181 (1915) as overruling Watkins, supra. In McKinley we did quote with approval language from an Alabama decision. But that language is consistent with our posture — the amendment must be intelligible and be able to exist separately; it cannot be unintelligible. We said in McKinley:

The purpose of the clause of the Constitution was to protect the members of the Legislature and the public against fraud and deception.
Where the new act is not complete but refers to a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist and this constitutes the vice sought to be prohibited by this clause of the Constitution.

Regarding the Act in question we said:

In the case before us, the act is very broad and comprehensive. It is complete in itself and in no manner attempts to amend or change the existing election laws.

In McKinley we also quoted from a Michigan case, People v. Mahaney, 13 Mich. 481, which said:

The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.

In City of Manila v. Downing, 244 Ark. 442, 425 S.W.2d 528 (1968), we said that Article 5, § 23 “ ... was intended to prohibit legislation drafted in such form that the legislators could not determine what its provisions were from an inspection of it. ...” We upheld the act in question, Act 124 of 1961, for the reason that it did “not contain any meaning that was not apparent on the face of the Act.” In TexarkanaForest Park Dist. No. 1 v. State Use Miller County, 189 Ark. 617, 74 S. W.2d 784 (1934), we did not construe Article 5, § 23 as strictly as .we had in other cases, but it was and is the law and has not since been questioned. It emphatically holds that a local act cannot be amended, even though the local act is made general in its application by the amendment. Evidently that principle is also overruled.

Our position heretofore was fairly summarized in Anderson, Drafting a Legislative Act in Arkansas, 2 ARK. L. REV. 382 (1948):

The Arkansas Supreme Court, however, has adopted a rather restricted construction which does not impose unreasonably severe limitations upon the amendment process. The purpose of the provision is said to bé the prevention of amendatory acts that are not complete in themselves and which, for that reason, cannot be intelligently considered by the legislature without reference to the text of the earlier act. [Emphasis added.]

I find no inconsistency in principle in these cases.

Does Act 861 meet our test? Is it complete in itself? Or does the original text have to be referred to? The trial court made a finding that the original act had to be referred to to understand the proposed amendment, and it was undisputably right in that regard. There is no way any legislator, citizen, lawyer or judge could say this legislation on its face authorized cities and towns to enact a one cent sales tax. That information is simply not there; therefore, the legislation fails our test.

The majority raises the specter of thousands of other acts being also illegal. Whether other such unconstitutional legislation exists is, of course, irrelevant. It is not within our province to tell the legislature how to conduct their business; our purpose is to interpret and enforce the constitution. Thousands of local acts have been passed in violation of amendment 14. As everyone knows, including the legislators themselves, the local acts are nonetheless illegal. Actually, Article 5, § 23 is primarily for the benefit of the General Assembly; members should only be accountable for their vote on that which is legally and intelligibly before them.

How could Act 861 have been made constitutional? In several ways. Simply by providing its purpose on its face, exactly as another act that passed the same session did. That legislation, Act 991 of 1981, authorized counties to enact a sales tax. Its title provides: “AN ACT to Authorize Counties to Levy a One Percent (1%) Sales Tax; Requiring an Election on the Issue; and for Other Purposes.” Is it too much to ask that just such information appear somewhere in the amended Act? No doubt, because of the title of Act 991, all legislators were on notice as to what the legislation was; just as surely the legislators could not know that Act 861 was authorizing cities to levy a one cent sales tax. Another way Act 861 could have been made constitutional is by providing in any section, including the emergency clause, that a one cent sales tax was being authorized. The amended legislation could also have been recited in full, leaving no doubt as to the meaning of the amendment. In my judgment any of these methods could have made Act 861 constitutional.

The precedent set by the majority will uphold the constitutionality of amendatory legislation regardless of its content and the notice it gives to legislators, if the amended act is referred to and the amendment is set forth in full.

Rather than adopting a better rule, we are diluting the constitutional provision in question and abandoning an important principle of law consistent in our cases. Rather than overrule any cases and emasculate an article of the constitution, I would declare the act void.

Since I would void the legislation because it violated Article 5, § 23, I would not reach the question of local legislation. If I did, I would not treat it so gently.

Purtle, J., joins in this dissent.

John I. Purtle, Justice,

dissenting. I fully agree with Justice Hickman’s dissent; however, for my own peace of mind, I would like to add a few words. Article 5, § 23, Constitution of Arkansas, reads as follows:

No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length.
Act 861 of 1981 reads as follows:

Be It Enacted by the General Assembly of the State of Arkansas:

SECTION 1. Section 1 of Act 990 of 1975, as amended, the same being Arkansas Statute 19-4513, is hereby amended to read as follows:

“Section 1. The following words shall have the following meanings unless a different meaning clearly appears from the context:
(a) The term “City” shall mean any city of the first class, city of the second class, or incorporated town.
(b) The term “Commissioner” means and refers to the Commissioner of Revenues of the State of Arkansas, or any of his duly authorized agents.”

SECTION 2. Section 2 of Act 990 of 1975, as amended, the same being Arkansas Statute 19-4514, is hereby amended by adding subsection (j) as follows:

“(j) Any city may provide in its ordinance authorized by this Act for a rebate from the city for taxes in excess of twenty-five dollars ($25.00) paid to the city on a single transaction.”
SECTION 3. ... (Emergency Clause.)

In my opinion, the General Assembly runs a serious risk of having legislation declared unconstitutional unless they abide by the provisions of Article 5, § 23 as set out above. Until the foregoing constitutional provision is repealed or amended by the people of the state of Arkansas, I shall continue to insist that its provisions be strictly complied with.


author: George Rose Smith, Justice.

text:
    James E. BERRY and Joyce BERRY v. SPRINGDALE WATER & SEWER COMMISSION et al
    81-266
    635 S.W.2d 236
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982
    [Rehearing denied July 19, 1982.]

      Jones & Segers, for appellants.

      Davis ér Bracey, P.A., for appellees.
   George Rose Smith, Justice.

This case must be affirmed because of flagrant deficiencies in the appellants’ abstract of the record. Rule 9 (d) requires that the abstract consist of an impartial condensation of such parts of the record as are necessary to an understanding of all questions presented for decision. In scores of cases we have discussed the essentials of a proper abstract of the record. In the case at bar the following statement from Collins v. Duncan, 257 Ark. 722, 520 S.W.2d 192 (1975), is especially pertinent: "A good rule of thumb would be for an attorney to forget that he knows anything at all about the case, and examine his abstract of the record for a determination of whether it clearly sets out all he would,need to know if he were required to decide the issues involved on appeal.” In the light of that statement we quote the appellants’ entire abstract:

The Complaint of Appellant alleges jurisdiction; a contract between appellant and appellee; a breach of the contract and resulting damages (TR-1). The answer of appellee alleges it is a quasi-municipal corporation; comparative negligence as a bar to recovery; and governmental immunity as a bar to recovery (TR-3). Motion for Jury Trial by appellant (TR-5). Order Transferring cause from Second Division to First Division (TR 6-10). Request for Admissions of Fact by Appellee (TR-13). Answer of Appellant to Request admitting the act which occurred was an act of an employee or agent of appellee, the act was an act of negligence and was not caused by an automobile (TR-15). Motion for Summary Judgment with brief by Appellee alleging immunity, no evidence of a contractual relationship and no issue of material fact existing (TR 17-20). Response of appellant stating the contract is a fact question and there is an issue to be determined (TR-22-23). Order granting Judgment to Appellee Summarily (TR-24). Notice of Appeal and Designation of the Record (TR-25).

For reversal it is argued, first, that we should abolish municipal immunity from tort liability, and second, that whether a contract existed between the parties was a question of fact precluding the entry of summary judgment. The appellants’ abstract tells us next to nothing about the plaintiffs’ asserted cause of action, about the supposed contract, about the alleged act of negligence, about the possible fact question, or about the summary judgment. We have insufficient information from the abstract even to discuss, much less decide, the issues that are argued.

Affirmed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    AMERICAN SHEET METAL WORKS, INC. v. CON-ARK BUILDERS, INC. et al
    81-225
    635 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982
    [Rehearing denied July 19, 1982.]

      Bridges, Young, Matthews, Holmes ¿r Drake and Holmes, Holmes & Trafford, for appellant.

      Friday, Eldredge ir Clark, by: Bill S. Clark, for appellees.

      Hays, J., would grant rehearing; Holt, J., not participating.

   Darrell Hickman, Justice.

This is an appeal from the trial court’s directed verdict in favor of the appellee, Con-Ark Builders, and others, finding that the appellant, American Sheet Metal Works, Inc., did not have a binding contract to be a subcontractor to Con-Ark, which had the general contract to construct the medium security building at the Cummins unit of the Department of Correction. American Sheet Metal Works had sued the appellees for damages for breach of contract.

We agree with the trial court that the issue was a question of law and find the court properly decided that issue.

Con-Ark Builders was the general contractor bidding on the medium security building at the Cummins unit of the Department of Correction. American Sheet Metal Works made a telephone bid to several general contractors, bidding on various mechanical portions of the job. American’s bid was $643,969.00 and it was the low bid for its portion of the job. Con-Ark used American Sheet Metal’s bid as part of its overall bid and was awarded the construction project as the low bidder. Later, Con-Ark had some reservations about the ability of American Sheet Metal Works to perform the job. Of the total subcontract of $643,969.00, approximately $400,000.00 of it was plumbing. It was learned that American Sheet Metal Works, which was primarily a sheet metal, electrical, air conditioning and mechanical contractor, intended to use Southern Mechanical, a Memphis, Tennessee firm, to perform the plumbing part of the subcontract and that Southern had no license to perform construction work in Arkansas. Con-Ark also questioned whether American Sheet Metal Works could obtain a bond in the amount of the subcontract, and, Con-Ark learned that American Sheet Metal Works’ Arkansas license did not authorize American Sheet Metal for the specialty of plumbing. Con-Ark notified American Sheet Metal that it would not enter into a written contract with American Sheet Metal on this job; instead Con-Ark obtained permission from the State to substitute one of its subsidiaries, Nabco Mechanical, Inc., to perform this subcontract at the amount bid by American Sheet Metal Works.

Essentially American Sheet Metal argues that the trial court was wrong in finding as a matter of law that it did not have an enforceable contract with Con-Ark Builders. What American Sheet Metal Works could not avoid at trial, nor with us, is that its Arkansas license, at the time of the negotiations, did not authorize American Sheet Metal Works to do plumbing. Later, American Sheet Metal Works did have ip license amended to reflect that it was authorized to perform plumbing work. American insisted below and insists on appeal that the missing authorization was due to a mistake. But the question has to be, could Con-Ark be forced to accept the proposal in view of the deficiency on the license and the other considerations that we have mentioned?

American Sheet Metal Works, Inc. argues that Ark. Stat. Ann. § 14-613 (Repl. 1979) was circumvented by Con-Ark. Ark. Stat. Ann. § 14-613 is referred to in the construction industry as the “name your subcontractor law.” Generally it requries that a general contractor offer the first opportunity for subcontracts to Arkansas contractors qualified as mechanical, electrical, roofing and sheet metal contractors engaged in plumbing, heating, ventilating, air conditioning, electrical wiring and illuminating fixtures and other such specialties.

However, the statute reads that the general contractors must “first offer an opportunity to Arkansas licensed and qualified . . . subcontractors.” [Emphasis added.] Con-Ark insisted that American Sheet Metal Works, Inc. was not licensed and qualified at the critical time and we must agree.

Essentially, American Sheet Metal Works’ argument is one of equity and implies that Con-Ark Builders used bad faith. It is suggested that American Sheet Metal Works was simply used to obtain the bid and then Con-Ark deliberately awarded the subcontract to one of its subsidiaries. American Sheet Metal Works argues that it found a qualified Arkansas subcontractor to perform the plumbing work; that it proved that it could be bonded for the full amount and that later it had its license amended to include plumbing. But all these factors arose after the fact and could merely be used as arguments to persuade Con-Ark to sign a contract with them. These arguments avoid the question of law involved and that is, whether Con-Ark Builders was required to accept American Sheet Metal Works’ proposal after the State of Arkansas awarded the contract to Con-Ark. The Arkansas statute did not require Con-Ark to accept the bid and, consequently, we cannot.

Affirmed.

Holt, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I thoroughly disagree with the decision to affirm. I believe the question of whether American Sheet Metal Works was “licensed and qualified” is one of fact and the trial court erred in taking the case from the jury at the close of the evidence.

The majority agree with the trial court that the issue was a question of law, correctly decided. By taking that view, the opinion shuns the necessity of dealing with the evidence, and avoids both a formidable task and an unconvincing result. But having declared the issue to be one of law, the opinion fails to state with any clarity the rule of law it relies on. No cases are given and Ark. Stat. Ann. § 14-613 is cited merely as requiring that general contractors must “first offer an opportunity to Arkansas licensed and qualified . . . subcontractors.” And Con-Ark insists that American Sheet Metal Works was not licensed and qualified. By avoiding any specific citation of the law, the majority leaves the dissent with the burden of proving that American Sheet Metal was not, under the law, unlicensed and unqualified.

As to the license, it is undisputed that American Sheet Metal was licensed and if the license was insufficient by not including a “mechanical specialty designation” then where is the law that makes that requirement? It is certainly not to be found in § 14-613, the only statute cited. Appellees’ brief recognizes the void and offers § 71-710 of the Contractor’s Licensing Law of Arkansas as giving the Licensing Board power to limit the license of a contractor “to the character of work for which the applicant is qualified.” But the problem here is there was absolutely no evidence presented that the Board had limited the license of American Sheet Metal; to the contrary, there was evidence from which the jury could have readily determined that the Licensing Board considered American Sheet Metal fully qualified to perform the work on which it had bid. Moreover, we have held licensing statutes must be construed strictly in favor of an individual against whom such enactments are sought to be applied. Davidson v. Smith, 258 Ark. 969, 530 S.W.2d 356 (1975). Con-Ark’s argument would have us do the reverse. If a litigant under our system is to be deprived of the opportunity to present his cause to a jury on the basis of an adverse rule of law, it ought to be possible (and essential) to clearly state what that rule is and where in our code or our cases it is to be found. Anything less is as unfair to the successful party as it is to the losing party.

Perhaps American Sheet Metal Works was thought to be unqualified, which § 14-613 does require. But that surely is a question of fact and the burden of proving that allegation was on Con-Ark. The proof was to the contrary, evidenced by the fact that Con-Ark’s motion for a directed verdict made no claim that American Sheet Metal was not qualified.

For the sake of argument, let us assume that by inference § 14-613 does require that the license of American Sheet Metal Works bear a mechanical specialty designation in order for it to take advantage of the statute and enforce its bid. The evidence presented in this case is such that the jury could reasonably infer that American Sheet Metal did in fact have a mechanical specialty designation which was simply omitted from its license through oversight. This was precisely the import of the testimony of Mr. Robert Carter and others that American Sheet Metal was a mechanical contractor licensed since 1969; had done mechanical work previously for Con-Ark; that the company had requested a mechanical designation from the Licensing Board and was unaware that its license failed to include the designation; that when Con-Ark asked about the mechanical designation he appeared before the Licensing Board to point out the mechanical designation was missing and the license was reissued for the years 1977-1978 to show the mechanical specialty effective July 1, 1977. When this evidence is considered in light of the following letter to American Sheet Metal from the Licensing Board, there is ample evidence to submit the issue to the jury:

Dear Mr. Carter:
This is to advise that it is the Board’s opinion that you are presently qualified to do the mechanical work you now have under contract as well as any future contracts undertaken. (My italics.)
Your Certificate of License has been amended to read as follows and mailed to you under separate cover:
“SPECIALTY: Mechanical — Sheet Metal — Air Conditioning”
Yours very truly,
CONTRACTORS LICENSING BOARD
/s/ Howard Jones, Administrator

The result reached by the majority goes against what we have said in a host of cases: On appeal a directed verdict is reviewed by taking that view of the evidence most favorable to the party against whom the verdict is directed, together with all reasonable inferences which can be drawn therefrom, and we must reverse if there is any substantial evidence tending to establish an issue in his favor. Farm Bureau Mutual Insurance Company v. Parks, 266 Ark. 454, 585 S.W.2d 936 (1979), and Housing Authority of the City of Texarkana v. E. W. Johnson Construction Co., Inc., 264 Ark. 523, 573 S.W.2d 316 (1978). Even more, we have said, correctly, that where the evidence is not in dispute if it is such that fair-minded men might draw different conclusions from it, a jury question is presented. Moore Ford Company v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Williams v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974).

The majority opinion states that American Sheet Metal’s arguments that it was qualified, capable of being bonded, and had its license amended all “arose after the fact” and Con-Ark was not required under § 14-613 to accept American Sheet Metal’s bid after the State of Arkansas awarded the contract to Con-Ark. The reasoning ignores two things: First, that § 14-613 makes it mandatory for Con-Ark to award the subcontract to the subcontractor whose name and bid Con-Ark listed on its bid to the State, and it is undisputed that Con-Ark listed American Sheet Metal and American Sheet Metal’s bid of $642,969.00 on its bid to the State. Second, it ignores the fact that although Con-Ark wrote to American Sheet Metal on February 22, 1978, to ask its interpretation of § 14-613 as to its having the necessary license to bid any plumbing, heating or ventilating work, adding, “Sure hope we can work something out to our mutual benefit,” there was evidence that two weeks earlier on February 8 Con-Ark was engaged in efforts to acquire the entire contract for itself by substituting Nabco, simply a division of Con-Ark, for American Sheet Metal, which is precisely what § 14-613 seeks to avoid. The fact is that Con-Ark managed to accomplish this objective to the loss of American Sheet Metal, and whether by so doing Con-Ark violated § 14-613 and rendered itself liable to American Sheet Metal should be resolved by a jury and not by a directed verdict.


text:
    Deborah MARVEL v. COAL HILL PUBLIC SCHOOL DISTRICT
    82-6
    635 S.W.2d 245
    Supreme Court of Arkansas
    Opinion delivered June 21, 1982

      Cearley, Gitchel, Mitchell & Roachell, by: Richard W.

      Roachell, for appellant.

      Josef V. Hobson, for appellee.
   Darrell Hickman, Justice.

The question in this case is whether a full-time school teacher can be denied the minimum salary due to teachers because of a written contract for a lesser amount. The trial court found such a contract enforceable. We disagree and reverse.

Deborah Marvel had been a part-time librarian and teacher for the Coal Hill Public School District when her contract was negotiated for the 1979-1980 school year. She said that Mr. Nolan Williams, the superintendent of schools, told her she would serve as part-time librarian and part-time teacher but would receive the same salary that full-time teachers did. (She had been paid in the past as an aide, but was now to be paid as a teacher.) Williams refuted that. But the contract only provided for a salary of $9,800.00 and the minimum a full-time teacher with her experience would receive is $11,450.00. She accepted the position and signed the contract but chose to sue for the difference, which was $1,650.00, plus interest.

The parties disagreed as to whether Miss Marvel signed the contract under protest but that is irrelevant. It is not disputed that she was a "teacher” within the meaning of Ark. Stat. Ann. § 80-1326 (Repl. 1980), and performed all the duties of a full-time teacher. She performed the ancillary duties of all teachers such as hall monitor, attending ball games and faculty meetings. She kept grade, class planning and attendance records. In order to qualify as full-time, she was required to work six periods a day. She acted as a teacher five periods a day and as a librarian two periods. It is also undisputed that the school district filed with the State Department of Education a salary schedule, as required by Ark. Stat. Ann. §§ 80-1324 and 80-850.7 (Repl. 1980), and that her salary as a full-time teacher would have been $11,450.00.

The superintendent said the reason Miss Marvel was not paid the minimum salary is because the part of her salary for teaching remedial reading was Title I money (federal money) and the grant did not allow her to be paid more.

The trial court held that the contract did not violate Arkansas law which requires that school districts promulgate minimum salary schedules, citing Ark. Stat. Ann. §§ 80-1325, et seq. (The Teachers’ Minimum Salary Law), and 80-850.1, et seq. (The School Finance Act of 1979), and Fennell v. School Dist. No. 13, 208 Ark. 620, 187 S.W.2d 187 (1945). The court found that since she was paid fairly for librarian duties from general funds that the district complied with the law, and found further that Miss Marvel knowingly and freely entered into a binding agreement.

The trial court was wrong in its interpretation of the law. Miss Marvel was a full-time teacher and the district could not receive her services and refuse to pay her the minimum salary it paid other full-time teachers. Title I provisions cannot be used to avoid Ark. Stat. Ann. §§ 80-1327 and 80-850.7, which require each school district to set a schedule of minimum salaries and abide by it.

If the district’s position were to prevail, then no teacher could be sure of equal treatment when he or she was hired or retained — at least to the extent that a minimum salary would apply to all hired for full-time duties. The school district received the benefit of the services of a full-time teacher and it should not be allowed to manipulate the law to avoid its legal responsibility.

The judgment is reversed and the cause remanded for the court to enter judgment for the appellant.

Reversed and remanded.