text:
    Bates v. City of Little Rock. Williams v. City of North Little Rook.
    4912
    319 S. W. 2d 37
    4913
    Opinion delivered December 22, 1958.
    [Rehearing denied January 19, 1959]

      George Howard, Jr. of Pine Blnff, Ark. and Robert L. Garter, New York, N. Y., for appellant.

      Gardner A. A. Deane, Jr. & Joseph G. Kemp, for appellee.

      George Howard, Jr. of Pine Bluff, Ark. and Robert L. Garter, New York, N. Y., for appellant.

      Reed Thompson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The issue on these appeals is the constitutionality of the so-called “Bennett Ordinance”, which was enacted by the City of Little Bock, and also by the City of North Little Bock. Appellant Bates was fined $25.00 for violation of the Little Bock ordinance; and appellant Williams was fined $25.00 for violation of the North Little Bock ordinance. There were separate appeals; but the cases are disposed of in this single opinion since constitutionality is the point at issue in each case, and the claims and defenses of each appellant are the same.

On October 14, 1957, the City of Little Bock adopted its Ordinance No. 10638 (here under attack), reading in its entirety as follows:

“An Ordinance Bequiring Certain Organizations Functioning or Operating Within the City of Little Bock, Arkansas to List Certain Information with the City Clerk: And For Other Purposes.

“Whereas, it has been found and determined that certain organizations within the City of Little Bock, Arkansas, have been claiming immunity from the terms of Ordinance No. 7444, as amended, governing the payment of occupation licenses levied for the privilege of doing business within the city, upon the premise that such organizations are benevolent, charitable, mutual benefit, fraternal, or non-profit, and

“Whereas, many such organizations claiming the occupation license exemption are mere subterfuges for businesses being operated for profit which are subject to the occupation license ordinance;

“Now, Therefore, Be It Ordained by the City Council of the City of Little Rock, Arkansas:

“Section 1. The word ‘organization’ as used herein means any group of individuals, whether incorporated or unincorporated.

“Section 2. Any organization operating or functioning within the City of Little Rock, including but not limited to civic, fraternal, political, mutual benefit, legal, medical, trade, or other organization, upon the request of the Mayor, Alderman, Member of the Board of Directors, City Clerk, City Collector, or City Attorney, shall list with the City Clerk the following information within 15 days after such request is submitted:

A. The official name of the organization.

B. The office, place of business, headquarters or usual meeting place of such organization.

C. The officers, agents, servants, employees or representatives of such organization, and the salaries paid to them.

D. The purpose or purposes of such organization.

E. A financial statement of such organization, including dues, fees, assessments and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization.

F. An affidavit by the president or other officiating officer of the organization stating whether the organization is subordinate to a parent organization, and if so, the name of the parent organization.

“Section 3. This ordinance shall be cumulative to other ordinances heretofore passed by the City with reference to occupation licenses and the collection thereof.

“Section 4. All information obtained pursuant to this ordinance shall be deemed public and subject to the inspection of any interested party at all reasonable business hours.

“Section 5. Any section or part of this ordinance declared to be unconstitutional or void shall not affect the remaining sections of the ordinance, and to this end the sections or sub-sections hereof are declared to be severable.

“Section 6. Any person or organization who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $50.00 nor more than $250.00, and each day of violation shall constitute a separate offense. The City Council in the enforcement of this ordinance shall have the power to seek injunctive relief.

“Section 7. It has been found and determined by the City Council that certain organizations operating within the City of Little Bock have failed to comply with the terms of Ordinance No. 7444, as amended, governing the payment of occupation licenses, and as a result thereof, needed revenue is being lost, and the enactment of this ordinance will provide for more efficient administration of such ordinance. Therefore, an emergency is declared to exist, and this ordinance being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from and after its passage and approval.”

Daisy Bates, a resident of Little Bock, is the State President of the National Association for the Advancement of Colored People (hereinafter referred to by the letters “NAACP”); and Birdie Williams, a resident of North Little Bock, is President of the North Little Bock Branch of the NAACP. Daisy Bates was notified to comply with the Little Rock ordinance, and Birdie Williams was notified to comply with the North Little Rock ordinance. Each furnished all the information required by the ordinance except that part of Section E, which requires that there be furnished: “A financial statement of such organization, including dues, fees, assessments, and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization”. In refusing to furnish the information required by Section E, Daisy Bates (by her attorney) advised the City of Little Rock:

“E. The financial statement is as follows:

January 1, 1957 to December 1, 1957 Total receipts from memberships and contributors $1,791.55

Total expenditures 1,491.46

Balance on Hand $ 300.09

“F. I am attaching my affidavit as president, indicating that we are a Branch of the National Association for the Advancement of Colored People, a New York Corporation.

“We cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information. We base this refusal on the anti-NAACP climate in this State. It is our good faith and belief that the public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm. Moreover, even aside from that possibility, we have been advised by our counsel, and we do so believe that the City has no right under the Constitution and laws of the United States, and under the Constitution and laws of the State of Arkansas to demand the names and addresses of our members and contributors. We assert on behalf of the organization and its members the right to contribute to the NAACP and to seek under its aegis to accomplish the aims and purposes herein described free from any restraints or interference from City or State officials. In addition we assert the right of our members and contributors to participate in the activities of NAACP anonymously, a right which has been recognized as the basic right of every American citizen since the founding of this country.

“I am enclosing herein a copy of the Constitution of the National Association for the Advancement of Colored People, and the Constitution and By-Laws for Branches of the National Association for the Advancement of Colored People.”

A similar refusal for similar reasons was made by Birdie Williams, concerning the North Little Rock request. For refusal to furnish the requested information each appellant was fined $25.00 by the Circuit Court; and each in prosecuting her appeal to this Court raises this Federal issue: the ordinance involved — insofar as it requires the names and addresses of the members of and contributors to, the local branch of the NAACP, is an invasion of the rights guaranteed by the amendments to the Constitution of the United States. All the other points urged blend into the one just stated.

The appellants have cited and discussed, inter alia: National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 81 L. Ed. 893, 57 S. Ct. 615; Pierce v. Society of Sisters, 268 U. S. 510, 69 L. Ed. 1070, 45 S. Ct. 571; Sweesy v. New Hampshire, 354 U. S. 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203; Grosjean v. American Press Co., 297 U. S. 233, 80 L. Ed. 660, 56 S. Ct. 444, Bridges v. Calif., 314 U. S. 252, 86 L. Ed. 192, 62 S. Ct. 190; Pennekamp v. Florida, 328 U. S. 331, 90 L. Ed. 1295, 66 S. Ct. 1029, National Broadcasting Co. v. U. S., 319 U. S. 190, 87 L. Ed. 1344, 63 S. Ct. 997, Burstyn v. Wilson, 343 U. S. 495, 96 L. Ed. 1098, 72 S. Ct. 777; DeJonge v. Oregon, 299 U. S. 353, 81 L. Ed. 278, 57 S. Ct. 255; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 95 L. Ed. 817, 71 S. Ct. 624; Thornhill v. Alabama, 310 U. S. 88, 84 L. Ed. 1093, 60 S. Ct. 736; NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958); and American Communications Assn. v. Douds, 339 U. S. 382, 94 L. Ed. 925, 70 S. Ct. 674. Also in the oral argument before this Court appellants laid great stress on the case of NAACP v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163, which was decided after the filing of appellant’s brief in this Court. It was claimed that NAACP v. Alabama was conclusive against the validity of the ordinances here challenged.

It would unduly extend this opinion to review each of the above cases or those cited by appellees. For purposes of this opinion we by-pass the point urged by the Cities • — ■ that anonymity is a personal defense and can be claimed only by the organization itself and not by one for it — and we proceed to state our conclusions on the claims that the appellants have made:

I. The primary purpose of each of the ordinances here involved is to obtain revenue for the Cities, and the obtaining of the membership list and the listing of contributors is merely to aid in determining the matter of tax status. The NAACP is not being required to furnish any information other than that which is required of all other organizations seeking immunity from the payment of an occupation tax.. The record here shows that the information required by the ordinances involved was required of all organizations claiming tax exemption; and the information was furnished by all of the requested organizations except the NAACP.

In Arkansas, municipalities are creatures of the State and have the powers which the State gives them. (Eagle, v. Beard, 33 Ark. 497; City of Hot Springs v. Gray, 215 Ark. 243, 219 S. W. 2d 930.) By Act No. 294 of 1937 (now found in § 19-4601 et seq. Ark. Stats.) the Arkansas Legislature authorized municipalities to enact ordinances levying an occupation tax. This was a revenue measure. In Talley v. Blytheville, 204 Ark. 745, 164 S. W. 2d 900, we held that this act of 1937 was authority for cities to enact occupation tax ordinances as revenue producing measures. Our subsequent cases have followed that holding. In 1947 the City of Little Bock passed its ordinance No. 7444, captioned, “An Ordinance Establishing an Annual Privilege License Tax for Various Businesses, Occupations, and Professions within the City of Little Bock Providing for the Amount Thereof ... ” This ordinance has been amended numerous times by changing the amount to be charged various businesses and professions and adding other businesses and professions as subjects of taxation.

On November 22,1948 the City of Little Bock passed its Ordinance No. 7809, entitled, “An Ordinance Believing Charitable Institutions from the payment of Privilege Taxes to the City of Little Bock, Amending Ordinance No. 7444, and For Other Purposes”. Thus, by the Ordinance No. 7809,. certain charitable or non-profit organizations became exempt from the privilege tax, even though such organization engaged in some kind of business. Such was the status of the law when, on October 14, 1957, the City of Little Bock enacted its ordinance No. 10638 first copied herein. The City had reason to believe that some of the organizations, who were claiming immunity under .Ordinance No. 7809, were not really charitable or non-profit organizations. The City wanted to ascertain what was being done by these organizations claiming exemptions; and so the City passed its ordinance requiring such organization claiming immunity from occupation tax to furnish the City certain information.

The NAACP is not being required to furnish any information other than is furnished by all other organizations claiming immunity from taxation. Furnishing of membership lists of non-profit organizations in Arkansas, as a basis of being determined a non-profit organization, has been the rule in Arkansas since 1875. Act No. 51 of 1875 (as now found in § 64-1301 Ark. Stats.) provides for the incorporation of a non-profit organization, and Section 2 of that Act (as now found in § 64-1302 Ark. Stats.) says:

“Any association of persons desirous of becoming incorporated, under the provisions of this act, shall file with the Clerk of the Circuit Court and Recorder for the proper county a copy of their constitution or articles of association, and a list of all the members, together with a petition to said court for a certificate of incorporation under the provisions of this act (Emphasis supplied.) So it is nothing new to require a non-profit organization to furnish a list of all of the members. The same rule that applies to such organizations seeking corporate status is sought here to be applied to such organizations that seek privilege tax exemptions. The record shows that the rule is being uniformly applied to all organizations.

Requiring the furnishing of information to the taxing power is not an unconstitutional invasion of the freedoms guaranteed. A taxpayer is required to file an income tax return giving the names of the sources of revenue (as, for instance, the name of the corporation and the amount of the dividend received from it); yet all this has been held to be within the power of the Sovereign. See Hubbard v. Mellon, 5 Fed. 2d 764. Furthermore, the United States Supreme Court, in U. S. v. Harriss, 347 U. S. 612, 98 L. Ed. 989, 74 S. Ct. 808, upheld a law which required the furnishing of the names of contributors and amounts paid by each to any person engaged in seeking to obtain legislation. So the rationale of the holdings seems to be: when the required information is a mere incident to a permissible legal result, then the information should be furnished. That is the situation in the case at bar; and we find nothing in Speiser v. Randall, 357 U. S. 513, 2 L. Ed. 2d 1460, 78 S. Ct. 1332, or in First Unitarian Church of Los Angeles v. Los Angeles County, 357 U. S. 545, 2 L. Ed. 2d 1484, 78 S. Ct. 1350, which affects the conclusion here reached

II. The claim, that it may hurt the prospects of the NAACP to furnish to the City its membership list and the names of the contributors, does not make the ordinance unconstitutional. The Constitutional Amendments do not guarantee anonymity at all events. If NAACP wants tax immunity, it should comply with the ordinance. It cannot have immunity from taxation without complying with the ordinance. This is but an application of the old statement that one cannot both eat his cake and keep it. The case of NAACP v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, affords the appellant no protection in this case. In the Alabama case the prime purpose of the procedure instituted by the Attorney General of Alabama was to obtain information whereby Alabama could force the NAACP out of the State. So the Supreme Court of the United States held that NAACP was not required to disclose against itself. In the case at bar, the purpose of the ordinance is to determine the tax status of one seeking to claim immunity from occupation tax. The ultimate aim in NAACP v. Alabama was to stop the activities of NAACP ; but in the case at bar, the disclosure of NAACP’s list of members and contributors is a mere incident to see if legal taxation is being evaded. The ordinance here under attack does not single out NAACP and require information of it only: rather, the ordinance requires information of all organizations seeking exemption from privilege tax. Other organizations have complied: why should this one have immunity as though it were a favored child!

The United States Supreme Court has quite recently recognized that a law applicable to all persons is valid, even when attacked by those who disliked the law involved. In the case of Shuttlesworth v. Birmingham Board of Education, 162 Fed. Supp. 372, four Negro children sought to test the constitutionality of the Alabama School Placement Law and to enjoin the City Board of Education from enforcing the law. The three-Judge Court, in an opinion by Circuit Judge Rives, held that the Alabama School Placement Law furnished legal machinery for an orderly administration of the public schools by admission of qualified pupils upon a basis of individual merit, without regard to their race or color, and that the law was not unconstitutional on its face. The case was appealed to the Supreme Court of the United States and that tribunal affirmed the three-judge Court in a per curiam order of November 24, 1958, saying: “The motion to affirm is granted and the judgment is affirmed upon the limited grounds on which the District Court rested its decision”. When we study the decision of the District Court, we see that the Alabama School Placement Law was upheld because there was no showing that it was not being, uniformly administered. The same thing is true in each of the ordinances here under attack: there is nothing in the record before us to show that these ordinances were enacted for any purpose other than those stated in the ordinances; and there is no showing that the ordinances are being enforced other than uniformly.

We find no error, and the judgment in each case is affirmed.

Holt and George Rose Smith, JJ., dissent.

         About the same time the City of North Little Rock adopted its Ordinance No. 2683; and the Little Rock ordinance and the North Little Rock ordinance are in all substantial respects entirely similar.

       To support the contentions for immunity from furnishing the requested information appellants stated in the lower Court and reiterate here: “. . . that Ordinance 10,638 is an unjustified interference with defendant’s rights of freedom of speech and assembly as secured and protected by the Constitution of the State of Arkansas and by the Constitution of the United States of America — namely, the First Amendment as assimilated in the Fourteenth Amendment of the Federal Constitution. It is the contention of the defendant that the City has not shown that there is a compelling reason or a justifiable cause for demanding the contributors’ list to the defendant in this case. The defendant would like to cite two United States Supreme Court cases wherein the Supreme Court held that the request of membership lists and contributors’ lists was a direct violation of this fundamental constitutional right — namely, freedom of speech. The case is Wieman vs. Updegraff, 344 U. S. 183, and there the court said that the right to assemble freely, to join an organization and to participate in its activities is one of the protected rights guaranteed under the Constitution. In Watkins vs. U. S., the Chief Justice of the United States wrote: ‘There is no general authority to expose the private rights of an individual without justification’. In
        Sweeney vs. New Hampshire, the Court said: ‘We do not now conceive of any circumstance wherein a State interest would justify an infringement upon these fields — freedom of speech and freedom of assembly’. It is our contention that the City of Little Rock has not shown that there is a compelling reason or a justifiable cause for requiring the defendant to produce the names of its members and the names of its contributors.”

       The entire text of this Ordinance is as follows:
      “WHEREAS, There are certain charitable institutions in the City of Little Rock which engage in the business of manufacturing, and selling, or other lines of endeavor in order to raise funds for charitable purposes such as the assistance of the needy, and the care and education of the crippled and the blind, and
      “WHEREAS, These institutions are performing in an unselfish manner a service to the community and are rendering untold aid and comfort to persons who are physically handicapped, and
      “WHEREAS, It is believed to be in the best interest of the City and the people of the City of Little Rock to foster and promote such activity on the part of these institutions,
      “NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF TEfE.CITY OF LITTLE ROCK, ARKANSAS:
      “SECTION 1. Each charitable, eleemosynary, non-profit organization whose purpose is to assist the needy and bring care, training and comfort to the physically handicapped, is hereby exempt from the payment of a privilege tax for the privilege of-carrying on such business or occupation within the City of Little Rock.
      “SECTION 2. Ordinance No. 7444 is hereby amended to conform to the provisions of this ordinance.
      “SECTION 3. All ordinances and parts of ordinances in conflict herewith are hereby repealed.”

       Section 7 of Art. 5 of the Constitution and By-Laws for Branches of the NAACP says that the local branches shall remit, “. . . the net proceeds of each entertainment or fund raising effort by a Branch shall be divided equally between the Branch and the National Office . . .” When we consider that shows and amusement places and other forms of entertainment are taxable under the occupation tax ordinance, certainly the City would have some right to ascertain who was belonging to the NAACP and who was making contributions to it, because it was claiming an immunity and yet sending part of its money for some other use outside of the State.

       In 8 Ark. Law Review 110 there is an interesting case note entitled : “Illegal activities by non-profit corporations”.


source: Caselaw Access Project

author: George Rose Smith, J. Ed F. McFaddin, Associate Justice

license: Public Domain

text:
    Potts v. Hay.
    5-1551
    318 S. W. 2d 826
    Opinion delivered December 22, 1958.

      Joseph C. Kemp <& Gardner A. A. Deane, Jr., for appellant.

      McMath, Leatherman & Woods, for appellee.
   George Rose Smith, J.

This is a representative suit brought by the three appellees, as officers of the Little Rock policemen’s union, to enjoin the city officials from enforcing Act 30 of 1957, it being asserted that the act is contrary to Amendment 34 to the Arkansas Constitution. William W. Leigh, as a citizen and taxpayer, filed an intervention and offered proof in defense of the statute. The chancellor held the act to be unconstitutional and issued a permanent injunction against its enforcement.

The evidence need not be recited in .detail. The city and the intervenor adduced proof to show that the declared policies of the. labor union contemplate that its members will support authorized strikes, refuse to cross picket lines, and in other respects adhere to a course of action contrary to the attitude of impartiality that the city expects on the part of its policemen. There was also testimony that 35 of the 162 members of the police force belong to the union and that the department as a whole suffered a loss of public esteem as a result of the union’s having made a $500 contribution in support of a busmen’s strike against their employer.

Amendment 34 reads in part: “No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union, nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union.” Section 1 of Act 30 declares that union membership by police officers is inconsistent with the discipline which their employment requires. Section 2 of the act provides that no person who is a member of a policemen’s union shall be eligible to serve on any municipal police force and that union members currently serving shall be dismissed unless they sever their relationship with the union within thirty days.

If the constitutional amendment applies to public employees it cannot be doubted that the act is unconstitutional. The amendment requires that no person be denied employment because of membership in a labor union. The act requires that persons be denied employment as policemen because of membership in a labor union. The conflict is irreconcilable; the act must fall unless it can be said that public employment is not within the purview of the amendment. •

In insisting that an implied exception should be read into the amendment the appellants rely upon a rule of statutory construction, that in certain kinds of statutes general words do not include the state or its subdivisions unless that intention is stated expressly or by necessary implication. Cole v. White County, 32 Ark. 45; Linwood & Auburn Levee Dist. v. State, 121 Ark. 489, 181 S. W. 892. Although the rule is followed primarily in the interpretation of statutes, we recognized its applicability to a constitutional question in State v. Williford, 36 Ark. 155, 38 Am. Rep. 34. There the two appellees asserted the constitutional exemption of personal property to defeat a writ of execution upon a judgment in favor of the state. We concluded that no harm could come to the state if the debtors were permitted to claim their exemptions and accordingly held that the exemption clause in the constitution included the state by implication.

We perceive no compelling reason to believe that the people intended to exclude public employment from the positive, unequivocal command of Amendment 34: “No person shall be denied employment because of membership in . . . a labor union.” The suggestion made by the appellants, that the public interest will suffer if policemen are allowed to exert “union pressure” upon the city, fails to take into account the relatively slight extent to which Amendment 34 restricts the power of the legislature.

The pertinent clause of the amendment deals only with the denial of employment on the basis of union membership. Nothing is said one way or the other on the subject of union pressure. Left untouched, for example, is the matter of striking against the government. As the Connecticut court pointed out, after a thorough review of the cases, every judicial decision on the subject holds that there is no right to strike against the government. Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 83 Atl. 2d 482, 31 A. L. R. 2d 1133. Yet in the same case the court was able to say, with complete consistency: “In the absence of prohibitory statute or regulation, no good reason appears why public employees should not organize as a labor union.” In like manner a Texas statute has been upheld which provides, on the one hand, that no person shall be denied public employment by reason of membership in a labor union, and, on the other, that collective bargaining contracts with public employees are void and that any public employee who participates in a strike forfeits his employment. Beverly v. City of Dallas, Tex., Civ. App., 292 S. W. 2d 172.

We are not convinced that the bare fact of union membership on the part of police officers presents such a threat to the public welfare that an implied exception must be written into the unqualified language of Amendment 34. Quite the contrary, when the full implications of the appellants’ argument are carefully examined, it seems clear that the suggested exception was not intended. One result of the amendment, perhaps the principal one, was to outlaw the closed shop. Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45. If the state and its subdivisions were meant to be exempted from the mandate of the amendment, there would be nothing in the constitution to prevent the legislature from permitting policemen to maintain a closed shop, even though that type of organization is forbidden in private employment. Inconsistencies such as this can be avoided only by giving the amendment the effect that its plain words demand.

Affirmed.

McFaddin, J., concurs.

Ed F. McFaddin, Associate Justice

(concurring). Less than 60 days ago, I was designated to write the majority oninion in this case. I prepared such an opinion; but the majority did not approve my draft. So I now use as a concurring opinion the draft that I prepared. It uses the plural as “we hold” instead of the singular as “I submit”, but it must be understood that it was prepared for a majority opinion. Here it is:

We have, here, a case in which a Labor Union is relying on the Bight-to-Work Constitutional Amendment. The question presented is whether Act No. 30 of the 1957 Arkansas Legislature is void as being in violation of Arkansas Constitutional Amendment No. 34. The Act No. 30 of 1957 (hereinafter called “the Act”) is captioned: “AN ACT to Prohibit Persons Employed on Municipal Police Forces of the Various Municipalities of this State from Holding Membership in or Being Affiliated with any Policemen’s Union; to State the Policy of this State in Regard to the Membership or Affiliation of Municipal Law Enforcement Officers in Policemen’s Unions; and for Other Purposes.” Section 1 of Amendment No. 34 (hereinafter called the “Constitutional Amendment”) reads in part:

“No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union * * *”

The appellees (plaintiffs below) are individuals and members of Local Union No. 1377 of County and Municipal Employees and are members of the Little Rock Police Department. They brought this action for and on behalf of themselves and as a class suit for the benefit of the other members of the local Union who are employees of the City of Little Rock Police Department. The appellants (defendants below) are the Chief of Police of Little Rock, the City Officials, and Members of the Civil Service. Commission of Little Rock. The appellees sued to enjoin appellants from enforcing the Act No. 30, claiming that the appellants will dismiss appellees from employment as policemen of Little Rock because of Union membership. The prayer was that the Act No. 30 be declared void — as being in conflict with the Constitutional Amendment — and that appellants be enjoined from discharging appellees because of Union membership.

W. W. Leigh intervened for himself and as a representative of taxpayers and employers. Evidence- was heard. It was shown that the Policemen’s Union was affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), some of whose aims and objectives are: (1) to refuse to cross or interfere with a picket line established by an affiliated union; (2) to assist in promoting the effectiveness of any strike called by an affiliated union; and (3) in cases of strikes, to aggressively resist resumption of work or production by an employer through the use of non-union labor. It was furthermore testified that in a recent strike in Little Rock involving the transportation system and in which strike there was some violence, the Policemen’s Union had contributed to the fund of the strikers; and that many people in Little Rock were of the opinion that the Policemen’s Union did not maintain neutrality in the said strike. It was also shown that the official manual for the Little Rock policemen required of each member, inter alia:

“In accepting the position of a police officer, you become an executive officer of the criminal laws of the State and the ordinances of the City, and a conservator of the public peace; your acts are at all times subject to the observation and criticism of the public; and on the standpoint where you commence and the course which you pursue depends not only the welfare of the community, but the credit of the department, as well as your own success as an officer and a man. You must never forget that your character is your capital. Deal honorably with all persons, and hold your words sacred, no matter when, where, or to whom given.”

It was shown that unless the injunction issued, the City would have no alternative except to dismiss any policeman who belonged to the Union. The Chancery Court held that the Act No. 30 violated the Constitutional Amendment, and enjoined the enforcement of the Act. This appeal ensued. Splendid briefs have been filed by the parties and the intervener, and a wealth of cases have been cited. For the appellants and the intervener it is most earnestly claimed that the State as a Sovereign is not within the inhibition of Amendment No. 34, and that the municipality is a subsidiary of the State and therefore entitled to the same immunity. On this and other points appellants and intervener cite, inter alia: Thornbrough, Comm. v. Williams, Chancellor, 225 Ark. 709, 284 S. W. 2d 641; Baratti v. Koser Gin Co., 206 Ark. 613, 177 S. W. 2d 750; Railway Mail Assn. v. Murphy, 180 Misc. 868, 44 NYS 2d 601, 607; United Federal Workers of America (CIO) v. Mitchell, District of Columbia, 56 Fed. Supp. 621; Christal v. Police Comm. of City and County of San Francisco, 33 Cal. App. 2d 564, 92 Pac. 2d 416; Perez v. Board of Police Comm. of L.A., 78 Cal. App. 2d 638, 178 P. 2d 537; Annotation in 31 ALR 2d 1145, 1154; McNatt v. Lawther, (Tex. Civ. App.) 223 S. W. 503; San Antonio Fire Fighters Local Union No. 84 v. Bell, (Tex. Civ. App.) 223 S. W. 506; CIO v. City of Dallas, (Tex. Civ. App.) 198 S. W. 2d 143; U. S. v. United Mine Workers, 330 U. S. 258, 91 L. Ed. 884, 67 S. Ct. 677; Cole v. White County, 32 Ark. 45; Lunsford v. City of Bryan (Tex.), 297 S. W. 2d 115; and King v. Priest (1947), 357 Mo. 68, 206 S. W. 2d 547 (appeal dismissed 333 U. S. 852).

To attempt to review and distinguish all of the cases in the briefs would be a work of supererogation. We merely state our conclusions. In State ex rel. Attorney General v. Irby, 190 Ark. 786, 81 S. W. 2d 419, in considering constitutional language, Chief Justice Johnson, speaking for the Court, said:

“As a preliminary to a consideration of these questions, it may be said that we are irrevocably committed to the rule that the Constitution of this State should be construed as a frame of laws and not as an ordinary statute (Pulaski County v. Irvin, 4 Ark. 473; State v. Scott, 9 Ark. 270), and that where the language employed in the Constitution is plain and unambiguous the courts cannot and should not seek other aids of interpretation (Clayton v. Berry), 27 Ark. 227; State v. Ashley, 1 Ark. 513; Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586); and that every word used should be expounded in its plain, obvious and common acceptation (State v. Martin, 60 Ark. 343, 30 S. W. 421; Ex parte Reynolds, 52 Ark. 330, 12 S. W. 570) * * *”

The foregoing language points to the result in the case at bar. The Constitutional Amendment says: “No person shall be denied employment because of membership in or affiliation with ... a labor union . . . ” Each of the appellees in this case is a person; and each of the appellees is about to be denied employment because of affiliation with a labor union. The words of the Constitutional Amendment are too clear to require the application of any rules of statutory construction such as the one urged here by the intervener, to-wit: that the Sovereign is not restricted by general statutes. It is not a question of restricting the Sovereign by general statute: it is a question of the people having restricted the Sovereign by the clearest possible words in the Constitutional Amendment. When we view the language in the fundamental document (Constitutional Amendment No. 34) by which the people have given the State Government its powers, we see the broad and clear expressions used. It would be a most dangerous doctrine to say that the State (Sovereign) was not bound by the limitations imposed by the People and that, as here, the individual citizen is not entitled, as against the' State, to the rights which the Constitution gives him. To hold that the State is not bound by Amendment No. 34 would lead inevitably to the next step — that the State was not bound by Art. 2, Sec. 22 of the Bill of Rights, which says that private property shall not be taken, appropriated, or damaged for public use without just compensation. When the State rises above the people and seeks immunity against rights guaranteed the people, then our motto — “The People Buie” — will have come to an end, and the super-state will have arrived. The right to work in gainful employment is as necessary for human existence as the right to own property — else why did the great Declaration say, “life, liberty, and the pursuit of happiness”? So we hold that the State — its subdivision, the municipality in the case at bar — is bound by the language of the Constitutional Amendment No. 34 just as any other employer; and this holding on Amendment No. 34 distinguishes the case at bar from cases cited by the appellants and intervener, such as McNatt v. Lawther (Tex. Civ. App.), 223 S. W. 503, and Perez v. Board of Police Com’rs, 78 Cal. App. 2d 638, 178 Pac. 2d 537.’

It has been said that such an application of Amendment No. 34 as here made renders it impossible for the State to exercise its police power for the general welfare. We, therefore, think it proper to point out that, even though under Amendment No. 34 the municipality cannot refuse to employ a policeman merely because he belongs to a Union, still the State has the right to enact a statute that would require every policeman, as a condition prerequisite to employment, to agree to forego the right to strike or to support a strike. Law enforcement must go on in times of strikes; and to require public employees engaged in law enforcement to agree to forego the right to strike or support a strike as a prerequisite to employment is a matter which Amendment No. 34 does not prohibit.

       The full'text of the Act is: “Section 1. PURPOSE. The purpose of this Act is to protect the public peace and welfare by encouraging the undivided loyalty of municipal police officers to the public service which it is their duty to serve, by prohibiting such police officers from holding membership in or becoming affiliated with any policemen’s labor union which might, on any occasion for any purpose, attempt to control or influence the relations of municipal police officers toward the municipality which they have undertaken to serve. It is hereby found and determined by the General Assembly that such membership or association by police officers is inconsistent with the discipline which such employment requires, and therefore is subversive to the police service and detrimental to the general peace and welfare.
      “SECTION 2. Hereafter, no person who is a member of or affiliated with any policemen’s union shall be eligible to serve on the police force of any municipality of this State. Any person who is serving on the police force of any municipality of this State and who is a member of or affiliated with any policemen’s labor union shall be dismissed unless such person shall, within thirty (30) days after the passage of this Act, sever all relationship with such policemen’s labor union.
      “SECTION 3. Any person who is responsible for the payment ol salaries or other compensation to municipal police officers in this State and who shall make payment to a person who under the terms of this Act is not eligible to serve on the municipal police force, shall be guilty of misfeasance in office and shall be punishable by a fine not to exceed $1,000.00 and shall be removed from his office or position in the municipal government.
      “SECTION 4. All laws and parts of laws in conflict with this Act are hereby repealed.”

       The rule is stated in 82 C.J.S. 554 “Statutes”, Sec. 317, in this general language: “Neither the government, whether federal or state, nor its agencies, are considered to be within the purview of a statute unless an intention to include them is clearly manifested; * * *” As pointed out in our present opinion, this is a rule of statutory construction. There are eases which hold that the general rules of statutory construction apply with equal force in matters of constitutional construction (Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. 2d 361) ; but none of these rules of construction ever comes into use except when the words of the document are not clear. No rule of construction should ever be used to defeat the clearly expressed language of the document.

       The Railway Labor Act (U.S.C.A. Title 45 See. 151 et seq.) has a provision which allows injunction against strikes, and that provision has been upheld: certainly police protection is as important as is transportation. Also, the Hatch Act (U.S.C.A. Title 5 Sec. 118-i) prohibits federal employees from political activities and it has been held valid: certainly abstaining from strikes by those employed in law enforcement is no more a burden than is abstention from political activities. (See also U.S.C.A. Title 5 Sec. 118-j for statute preventing strikes by government employees).


author: George Rose Smith, J.

text:
    National Association for the Advancement of Colored People, Inc. v. State of Ark.
    5-1593
    319 S. W. 2d 33
    Opinion delivered December 22, 1958.
    [Rehearing denied January 19, 1959]

      George Howard, Jr. of Pine Bluff, Ark. and Robert L. Garter; New York, N. Y., for appellant.

      Rruce Rennett, Atty. General & Roy Finch, Jr., Asst. Atty. General, for appellee.
   George Rose Smith, J.

This is an action by the State, on the relation of the Attorney General, to collect corporate franchise taxes, in the amount of $50 a year, for the past seven years. The merits of the case were not reached in the court below, as the appellant refused to comply with an interlocutory order requiring the production of certain records and permitted judgment to be entered by default as a means of obtaining a review of the production order.

Four days after the complaint was filed the plaintiff attempted to secure information about the appellant’s activities in Arkansas by propounding interrogatories to the president of the Arkansas State Conference of NAACP Branches. The president refused to disclose a substantial part of the information requested, on the ground that it was privileged under the constitutional guaranties of free speech and assembly. The plaintiff then asked for an order directing the defendant to produce for inspection (1) records listing the names and addresses of the officers, agents, servants, employees, and representatives in Arkansas of the defendant and of its Arkansas Conference, (2) records listing similar information with respect to the defendant’s local branches in Arkansas, (3) records, files, papers, correspondence, deposit slips, canceled checks, reports, and publications of the defendant and its Arkansas Conference, and (4) records listing the persons in Arkansas donating to the defendant and its Arkansas Conference during the past, seven years, and the amount received from each. ;

This motion was resisted on the same ground of privilege. The defendant offered proof to show that if the identity of its officers and members were disclosed they might be subjected to harassment in the form of violence, bombing, the burning of crosses, anonymous telephone calls, and threatening letters. The court found that the requested information was not privileged and granted the plaintiff’s motion for production, except that item (4) was modified to require only a statement of the total donations and contributions from Arkansas for the past seven years. As we have indicated, the defendant refused to comply with the order and permitted the entry of a default judgment. The court found that the refusal was not willful and denied the plaintiff’s motion that the defendant be punished for contempt.

We need consider only the two points argued by the appellant in its brief, for it abandons other errors by failing to argue them. Connell v. Robinson, 217 Ark. 1, 228 S. W. 2d 475. It is first contended that the appellant’s membership lists are privileged under the guaranties of freedom of speech and of assembly. NAACP v. Alabama, 357 U. S. 449. 2 L. Ed. 2d 1488, 78 S. Ct. 1163. In this particular case this contention is sufficiently answered by the fact that we do not construe the court’s order as requiring the production of these lists. That information would doubtless have been available to the plaintiff had the court granted item (4) in the motion for production, for the names of persons donating or contributing to the appellant would have included the names of persons paying dues. But the court refused to order the disclosure of this information, which of course means that it was also excluded from the general language in the rest of the order. The State did not cross appeal from the court’s refusal to order that the membership lists be produced.

Secondly, it is said that the plaintiff should have been required to show good cause for the production of the records. Ark. Stats. 1947, § 28-356. The record reflects, however, that the parties stipulated and orally agreed that the only issue on appeal would be whether the records are privileged. On the basis of this agreement the chancellor refused to impound the records pending appeal. Hence the appellant is not in a position to question the order on the ground now asserted.

Affirmed.


author: George Rose Smith, J. Carleton Harris, Chief Justice,

text:
    Wheat v. Wheat.
    5-1658
    318 S. W. 2d 793
    Opinion delivered December 22, 1958.

      J. H. Spears, for appellant.

      nieves & Smith <& Henry S. Wilson, for appellee.
   George Rose Smith, J.

The only question here is the validity of Act 36 of 1957, which added the following provision to the statute governing the matter of residence in divorce cases: "The word 'residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall he considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.” Ark. Stats. 1947, § 34-1208.1. The effect of the 1957 statute is to substitute residence, in the sense of physical presence, for domicile as a jurisdictional requirement in divorce cases. The chancellor held the act unconstitutional and, finding that the plaintiff-appellant is not domiciled in Arkansas, dismissed his suit for divorce.

The parties were married in 1948 and were living-in Maryland when they separated in 1952. The record does not show where the marriage ceremony was performed, but it was evidently in some state other than Arkansas. It is not contended that either of the parties had ever lived in Arkansas before the appellant came here in May of 1957. At that time he was transferred by his employer, a private corporation, to a station in Millington, Tenxiessee, which is some twenty miles northeast of West Memphis, Arkansas. Wheat rented an apartment in West Memphis and traveled back and forth each day to his work at Millington. After havixxg thus resided in Arkansas for about three months Wheat filed this suit for a divorce, on the ground of three years separatioxi. Mrs. Wheat, who is a resident of California, was served by warning order. She filed a crosscomplaixit asking for separate maintenance, but she denied the court’s jurisdiction to grant a divorce. Although Wheat testified that he intends to make Arkansas his home, the weight of the evidence supports the chancellor’s findixxg that Wheat has xiot established his domicile in this state. Hence the case turns upon the validity of Act 36, by which the jurisdictional requirement of domicile was abolished.

The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement of the action. C. & M. Dig., § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement'of the action. Ark. Stats., § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. This interpretation was followed until 1947, when we overruled the Squire case and held that the statutory reference to residence meant domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, noted in 2 Ark. L. Rev. 111. The Gassen case did not reach the constitutional question now presented, as the decision involved only an issue of statutory construction. It cannot be doubted that by Act 36 the legislature intended to restore the rule of the Squire case, for the emergency clause in the act refers specifically to that decision and to the Gassen case.

Although the wisdom of Act 36 is of no concern to the courts, since the law of divorce is purely statutory, Squire v. Squire, supra, Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, 152 A. L. R. 327, we may nevertheless observe that the act may well have been designed to prevent perjury. We know, of course, that the residential requirements for divorce vary greatly among the forty-nine states. In a decided majority of the states the plaintiff must have lived in the state for at least a year before filing suit. Louisiana and New York have no minimum period of residence, but their laws do not permit the courts to entertain cases where the state had no substantial connection with the marriage.

Arkansas is one of the five states in which the necessary period of residence is relatively short. In Idaho and Nevada the period is six weeks, in Wyoming sixty days, in Arkansas three months before judgment, and in Utah three months before the commencement of suit. At the time Act 36 was adopted all five of these states demanded proof of domicile as a condition to the granting of a divorce.^

It is a matter of common knowledge that every year thousands of unhappily married persons, unable to obtain divorces at home, visit one or another of these five states in search of marital freedom. It is equally well known that the need for proof of domicile leads to perjury in a vast number of instances. The situation in Nevada, for example, has been described in these words: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by non-residents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage. Upon such evidence the courts find that they acquired a Nevada domicil.” Lorenzen, Extraterritorial Divorce — Williams v. North Carolina 11, 54 Yale Law Journal 799, 801. We should be less than candid if we did not concede that similar instances of perjury have taken place in Arkansas. Act 36 goes far toward freeing litigants from the temptation to swear falsely on the issue of domicile.

To hold the act invalid we must be able to assert that it conflicts with some particular clause in the state or federal constitution. Only two clauses seem sufficiently pertinent to warrant discussion.

First is the full faith and credit clause of the federal constitution. This clause is now construed to mean that a divorce decree is not entitled to recognition in other states unless one of the parties was domiciled in the state where the decree was rendered, Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207, 143 A. L. R. 1273, with an exception which precludes either party from attacking the decree if the question of domicile was actually put in issue. Sherrer v. Sherrer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355.

The full faith and credit clause deals only with the extent to which the decree is entitled to recognition elsewhere. It does not purport to say that the decree is not valid in the state where rendered; still less does it intimate that the courts cannot be authorized to act at all in the absence of proof of domicile.

We do not question the desirability of having Arkansas divorce decrees receive recognition in other states. That wish was the basic reason for the Cassen decision. But it must be remembered that a decree is not entitled to respect elsewhere merely because the statute exacts a showing of domicile as a condition to the maintenance of the suit, and this is true even though the court makes a finding that domicile does exist. The decree is still not conclusive of the issue, which may be re-examined in other jurisdictions. Williams v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092. Although Nevada ostensibly requires proof of domicile, we have refused to recognize a Nevada decree when the court’s finding of domicile was clearly unsupported. Cooper v. Cooper, 225 Ark. 626, 284 S. W. 2d 617. With or without Act 36 the acceptance of any particular Arkansas decree by a court in another state will ultimately depend upon whether that court believes that an Arkansas domicile really existed. Even if the act deprives the decree of prima facie extraterritorial validity when the Arkansas court fails to make a finding of domicile, it was for the legislature to say whether this disadvantage is outweighed by the beneficial consequences of the statute.

The other constitutional provision to be considered is the due process clause. On this point the arguments on each side are examined in detail in the majority and minority opinions in Alton v. Alton, 3d Cir., 207 Fed. 2d 667, appeal dismissed as moot, 347 U. S. 610, 98 L. Ed. 987, 74 S. Ct. 736. See also Granville-Smith v. Granville-Smith, 349 U. S. 1, 99 L. Ed. 773, 75 S. Ct. 553. In the Alton case the Court of Appeals declared invalid a Virgin Islands statute which provided that six weeks residence should be prima facie evidence of domicile and, further, that if the defendant entered his appearance the court would have jurisdiction without reference to domicile. The facts were that Mrs. Alton brought suit for divorce after having resided in the Islands for the necessary six weeks. Her husband entered his appearance but made no defense. The trial court refused to grant a divorce without proof of domicile. The Court of Appeals, by a vote of four to three, sustained the trial court, holding that the statute denied due process of law.

We have studied the majority opinion in the Alton case with much care but do not find it convincing. The Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property without due process of law. The question at once arises: What person was denied due process in the Alton case? The majority’s answer is hardly satisfying: “The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere.” It will be seen that although Alton alone could have complained of a denial of due process and did not choose to do so, the court nevertheless found that his constitutional rights were somehow being violated.

In the case at bar Mrs. Wheat, unlike Alton, elects to contest the action for divorce and to attack the validity of Act 36. We may lay aside at the outset any question about procedural due process. It is not suggested that Mrs. Wheat is being denied notice or an opportunity to be heard. To the contrary, she invokes the court’s jurisdiction by her request for separate maintenance. We also assume that there is no doubt about the power of the Arkansas courts to determine Mrs. Wheat’s marital rights in any Arkansas property her husband may own.

The difficult question is raised by the theory,/Which was the basis for the Alton decision,(that the marriage relationship is a res that remains always at the parties’ common domicile, or at their separate domiciles, and is therefore beyond the reach of courts in other jurisdictions. "See Rest., Conflict of Laws, § 110; Leflar, Arkansas Law of Conflict of Laws, § 133; and compare Corwin, Out-Haddocking Haddock, 93 Pa. L. Rev. 341. It will hardly do to side-step this issue by merely observing that the marital status in the domiciliary jurisdiction will not be affected if our decree is not entitled to full faith and credit there.

With respect to the due process clause, as distinguished from the full faith and credit clause, we are not convinced that domicile must be the sole basis for the exercise of jurisdiction over the marriage relationship .//As the court observed in Wallace v. Wallace, 63 N. M. 414, 320 P. 2d 1020; “Where domicile is a statutory jurisdictional prerequisite it is quite correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual which will create a sufficient interest in the state under the due process clause to give it power to decree divorces . . . Precedent is not lacking for the conclusion that divorce jurisdiction can be founded on circumstances other than domicile.” The court concluded that a soldier’s residence in the state for a year, although insufficient to establish domicile, was a reasonable basis for the exercise of jurisdiction over the marital status.

The appellee relies strongly upon the decision in Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A. L. R. 2d 662, where the court held invalid a statute permitting nonresident couples to confer jurisdiction by consent and thus obtain a divorce in Alabama with no residence there at all. We agree with that decision, for there was no reasonable basis for the exercise of jurisdiction over the marital status.

It has been pointed out repeatedly that the theory of basing divorce jurisdiction solely on domicile has led to conflicting decisions and to legal confusion ever since the theory was first formulated in connection with the full faith and credit clause. Domicile differs from residence only in the existence of a subjective intent to remain more or less permanently in the particular state. Whether that intent exists on the part of a person who comes to Arkansas can seldom be proved with any meas- • ure of certainty. Often it is only after the court has decided this perplexing question that the lack of intent ¡becomes apparent, as when the successful plaintiff immediately leaves the state. Although the/court reached its ’decision in the utmost good faith, the want of domicile becomes retroactively so demonstrable that the issue must be decided the other way when the decree is relied upon _ in another state.

By Act 36 the legislature has substituted the simple requirement of three months residence, which can be proved with certainty, for the nebulous concept of domicile, which usually cannot be proved. We concede that the period of residence might be shortened so unreasonably, as in the Jennings case, as to indicate that the state has no reasonable basis for exercising jurisdiction over the marriage. We are not convinced, however, that the act before us is open to that criticism. Under the holding in Squire v. Squire, supra, the rule of Act 36 actually prevailed in this state for fifteen years. Now that the legislature has unmistakably expressed its intention in the matter, we do not feel that the due process clause compels us to say that its action is arbitrary.

Reversed.

Harris, C. J., concurs. Holt and McFaddin, JJ., dissent.

Carleton Harris, Chief Justice,

(concurring). I write this concurrence, not because I disagree with the reasoning of the majority, but simply to express my personal feelings on the issue involved. There has not been a case before this Court, subsequent to my entering upon the duties of this office, wherein my personal views have been so much in conflict with my interpretation of the law, or to state it simply, my “legal views.” Perhaps my greatest interest, since entering upon judicial duties in Í949 (as Chancery Judge), has been the preservation of marital harmony, and the discouragement of divorce. My personal feeling is that legislation should be directed to making divorces more difficult to obtain rather than easier to obtain, and I am unable to find too much consolation in the fact that, after all, the Act in question has no effect upon our bona fide citizens, but only affects those who take up a temporary residence for the purpose of obtaining a divorce. It might be added, that in my view, any divorce granted under the provisions of this statute, in numerous of our sister states, will probably be worth only the paper it is written on.

But yjhile this legislation is personally repugnant to me, I have been forced to conclude that the legislature had full power to validly enact the provisions of Act 36 of 1957. It is not within the scope of our authority to pass upon the wisdom of legislation, or to hold an Act invalid because we deem it unwise; to take such a view, would propel the Court into the field of legislating, which, under our system of government, is entirely alien to the proper function of the judiciary. So — while I strongly disapprove of the legislation, and hope that the G-eneral Assembly will see fit to repeal Act 36,1 am of the opinion, for the reasons set forth in the majority opinion, that the Act is valid.

J. S. Holt and Ed. F. McFaddin, Associate Justices (dissenting).

We respectfully dissent.

When this case was submitted the Honorable Minor W. Millwee was a Justice of this Court, and he prepared an opinion, which he hoped would be adopted. His opinion was not acceptable to the majority, and was never delivered. However, his views won our support; and he has given us permission to use his original opinion as our dissent. Here it is, just as he prepared it:

This appeal involves the validity of Act 36 of 1957 (Ark. Stats. Sections 34-1208 and 34-1208.1). The first section of the act provides inter alia, that no decree of divorce shall be granted until a plaintiff has maintained an actual residence in this State for three full months. The second section (34-1208.1) provides: “The word ‘residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall be considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas. ’ ’

The problem and issues presented are well stated in the following opinion rendered by the trial court as the basis for a decree holding the Act invalid:

“On August 6, 1957, Myron W. Wheat filed suit against his wife, Alice S. Wheat, for a divorce in Crittenden County. On August 28, 1957, Mrs. Wheat filed her answer in the action and alleged, among other things, that Mr. Wheat was not a bona fide resident of the State of Arkansas.

“On or about October 31, 1957, plaintiff completed the taking of his proof (all on depositions); and, on that data, the defendant filed her motion to dismiss the complaint ‘for the reason that the evidence is insufficient to warrant the court granting the relief prayed . . .’

‘ ‘ Argument in support of this motion was based entirely upon the premise that when plaintiff rested in the development of his case, the evidence was not sufficient to warrant a finding that he was a bona fide resident of Arkansas. If that premise is correct, then the complaint must be dismissed and this action is at an end.

“Facts relative to residence (or domicile) of the plaintiff are undisputed except as to plaintiff’s own personal statement that it is his intention to make Arkansas his permanent home. That self-serving conclusion is challenged by the defendant as being inconsistent with all other facts in the record.

“Though the fact does not appear of record, argument by plaintiff’s counsel indicated that Mr. Wheat is a native of Oklahoma and was formerly a school teacher in that State. His mother still resides in Oklahoma. He has a married sister in Fort Smith, Arkansas.

‘ ‘ Mr. Wheat, now about 57 years old, is employed by North American Aviation Corporation, whose headquarters are in Columbus, Ohio. The company has places of business all over the nation, especially around U. S. Air Force bases, and in foreign countries. Mr. Wheat is subject to transfer to a new location on 24-hour notice.

“The present Mrs. Wheat is plaintiff’s third wife. The first wife went by way of a divorce in the State of Illinois; and the second one by the same route in the State of California. Dates of these events are not in the record. Plaintiff married the present Mrs. Wheat in February, 1948, hut the place is not revealed. It was not in Arkansas. The parties never lived in Arkansas during their married life. They separated around July or August, 1952, in Leonardtown, Maryland.

“Following this separation, Mr. Wheat was transferred from Maryland to Florida, where he purchased a home and brought suit against the present Mrs. Wheat for divorce. Mrs. Wheat resisted the Florida suit and it was, on advice of Mr. Wheat’s counsel, dismissed by Mr. Wheat. While living in Florida, Mr. Wheat wrote his wife and advised that he was finding happiness there and intended to make it his permanent home.

“After a little more than two years in Florida, Mr. Wheat was transferred to Columbus, Ohio, for two months and thence to California. Plaintiff volunteered the information that while in California he formed an intention to make that State his permanent home. Several months later he was transferred to Pennsylvania; and on May 1, 1957, his employer transferred Mr. Wheat to duty at the Naval Air Station, Millington, Tennessee (near Memphis).

* ‘ On the 3rd or 4th day of May, 1957, plaintiff rented a furnished apartment at a motel in West Memphis (Crittenden County), Arkansas, and has been using that as Ms home continuously since, to the extent that he sleeps there at night. He still (at the time of depositions) has a Pennsylvania license plate on his automoMle and operates under a California driver’s license. He has not assessed his automobile or anything else for tax purposes in Arkansas. His official, and only, mail address is ‘P. O. Box 7, Memphis, Tennessee. ’ He drives fifty miles daily to and from his work at Millington, Tennessee. He says he pays $110.00 a month rent for his furnished apartment ; his landlady says he pays $80.00 a month. At least one or two other persons who came to Arkansas for a divorce have lived in the same motel but they do not still live there.

“Plaintiff makes no pretense that he intends to make Crittenden County his permanent home. Instead, he says, ‘I intend to go to the Ozarks in Arkansas’ and settle down to a little farming and fishing.

“After considering all the foregoing facts carefully, and weighing them against the plaintiff’s expressed intention to make Arkansas his permanent home, the court is not able to reach a satisfactory conclusion that Mr. Wheat is a bona fide resident of Arkansas. It is our finding that Mr. Wheat is not domiciled in Arkansas.

“Counsel for plaintiff directs our attention to Act 36 of 1957 and urges that, under its provisions, it is not material whether Wheat has an honest intention to make Arkansas his permanent home. This Act, it seems to the court, does specifically .eliminate ‘intention’ as one of the elements of residence or domicile for divorce purposes and sets up a single element, to-wit: ‘actual presence’ in Arkansas ‘for three full months’.

“Counsel for defendant urges that Act 36 of 1957 is void, and of no avail to plaintiff, because it was beyond the power of our State Legislature to remove ‘intent’ as an element of domicile. It appears that this Act has not been considered by our Supreme Court from any point of view. This court proceeds, therefore, to an evaluation of its validity.

“We draw our first ray of light from a general statement of the meaning of £ residence ’ and £ domicile ’ as it appears in 159 A.L.R. 499, to-wit:

‘The weight of authority continues to be that a bona fide “residence”, necessary under statutes in order to confer jurisdiction in divorce proceedings, is within the legal meaning of the word ‘ ‘ domicile ’ ’, that is, an abode aMimo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart.’

From innumerable jurisdictions it is clear that ‘intention’ to establish a bona fide permanent home within the State is an indispensable element of residence or domicile as it relates to actions for divorce. Carlson v. Carlson, 198 Ark. 231, 128 S. W. 2d 242; Sneed v. Sneed, 14 Ariz. 17, 123 P. 312; Wade v. Wade, 93 Fla. 1004, 113 So. 374; Perzel v. Perzel, 91 Ky. 634, 15 S. W. 658; Wright v. Genesee, 117 Mich. 244, 75 N. W. 465; Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366; Bell v Bell, 181 U. S. 175, 21 S. Ct. 551, 45 L. Ed. 804.

‘‘In Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A.L.R. 2d 662, the highest court of Alabama considered a problem very similar to the one at issue here. From the official opinion, we quote:

‘ * * * the statute provides that when the defendant is a nonresident of this state, the complainant need not be a resident of this state when the court has jurisdiction of both parties.

‘Has the court by virtue of the statute the power to render a decree of divorce when not only the respondent, but also the complainant resides in another state?’

“If our finding in the case at bar that plaintiff is not a bona fide resident of Arkansas with an ‘intention’ to make this State his permanent home is a correct finding, then the foregoing question posed by the Alabama court defines our problem exactly. That court proceeded to answer its own question thus:

‘Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law * * * This is true because domicile in'the state gives the court jurisdiction of the marital status or the res which the court must have before it in order to act. * * * The domicile of one spouse, however, within the state gives power to that state to dissolve the marriage. * * ’* Unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer on the courts of that state power to grant a divorce. 17 Am. Jur. 273.’

‘An act to be valid must be within the legislative jurisdiction of the enacting state. 59 C.J. 21 * * * Here the statute seeks to act on a status which is beyond the boundaries of the state. That it cannot do. ’

“When one state undertakes to apply its marriage and divorce laws to a marital status in another state, then the sovereignty and jurisdiction of the other state is being invaded. Such an attempt by one state to control a marital status entirely within another state is ultra vires. A state legislature may not exercise powers which the state itself does not possess. The People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 273; Kegley v. Kegley, 16 Cal. App. 2d 216, 60 P. 2d 482; Lister v. Lister, 86 N.J. Eq. 30, 97 A. 170; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21.

“It is the conclusion of this court that ‘intent’ to establish a permanent home is an indispensable element of domicile; and that domicile of one of the parties is the only basis upon which Arkansas may dissolve a marriage by divorce. Applying that fundamental concept of law, it follows that the Arkansas Legislature exceeded its powers when, in Act 36 of 1957, it attempted to remove ‘intent’ as an element of domicile; and we declare said Act to be void and of no effect. The complaint herein will be dismissed at the cost of the plaintiff.”

For reversal of the decree, the plaintiff-appellant relies primarily on Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, where we held valid Act 20 of 1939 which abolished recrimination as a defense against three years separation as a ground for divorce. In doing so we pointed out that the legislature generally has the right to establish the grounds and conditions of divorce and that the plaintiff in that case had resided in the county where he brought suit fifteen months and made ample proof of a bona fide residence in Arkansas.

The authorities generally appear to be in accord with the Chancellor’s holding that a court has no jurisdiction to grant a divorce when neither party is domiciled within the state. Since our decision in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, we have consistently held that domicile of one of the parties is necessary to confer jurisdiction. In that case we said: “Before a person can become a resident of this State so as to have his marital status determined by the courts of this State, he must, in truth and in fact, be a bona fide resident of the State, # * * A divorce decree in this State, to fulfill all the requirements for full faith and credit under the United States Constitution, can determine status only when there is a bona fide residence in this State. We quote from Sec. Ill of the American Law Institute’s Restatement of the Law on Conflict of Laws: ‘A state cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state. ’ ’ ’ See also, Oberstein v. Oberstein, 217 Ark. 80, 228 S. W. 2d 615, where we said: “In the case at bar neither spouse was ever domiciled in this State, so it is clear that the divorce decree rendered by the Garland Chancery Court in this cause on October 28, 1947, was a decree rendered without jurisdiction, and was and is void, and is not entitled to full faith and credit under Article IV, Sec. 1 of the United States Constitution.”

In Leflar, Conflict of Laws, Sec. 133, the learned author states: ‘ ‘ Since in legal theory the marital relationship is a status, or res, having a situs at the place where the married parties are domiciled, it follows that in legal theory an action undertaking to terminate the res in an action in rem, to be maintained only at the situs of the res, towit, the domicile. That is the way the law has developed. If a divorce is granted at the place which is the common domicile of the husband and wife, it is valid, and everywhere entitled to full faith and credit. If a court purports to grant a divorce at a place which is the domicile of neither party, the decree is a complete nullity, and entitled to no faith or credit anywhere.” The rationale of the rule requiring domicile as a basis for divorce jurisdiction is set forth by another well known authority on the subject in Goodrich, Conflict of Laws (3rd ed.) p. 396, as follows: ‘ ‘ Divorce, since it concerns the termination of the marital status, is a matter of state concern, and an act of law must accomplish it. What law? The natural answer would be the law of that place with which the person is most intimately concerned, the place ‘where he dwelleth and hath his home’; in other words, his domicile. It is the law of the domicile which determines whether or not a marriage may be terminated by divorce. In marriage cases it has been shown that the marriage will generally be recognized as good by the domiciliary law, if valid by the law where contracted. This is not true of divorce. Here there is no general policy favoring termination of the relation. It is only allowed if at all upon statutory grounds. A divorce may be granted only for a cause recognized by the domiciliary law; furthermore, only a court at the domicile has jurisdiction to grant a divorce. This is true both in England and in the United States. In the language often used by the courts: ‘This necessarily results from the right of every nation or state to determine the status of its own domiciled citizens * * *’ ” See also Lorenzen, Extraterritorial Divorce — William v. North Carolina II, 54 Yale Law Journal 799.

In the famous second case of Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366, Justice Frankfurter, speaking for the Court' said: “Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicile. Bell v. Bell, 181 U. S. 175, 45 L. Ed. 804, 21 S. Ct. 551; Andrews v. Andrews, 188 U. S. 14, 47 L. Ed. 366, 23 S. Ct. 237. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a neams between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted. In view of Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207, 143 A.L.R. 1273, supra, the jurisdictional requirement of domicil is freed from confusing refinements about ‘matrimonial domicil’, see Davis v. Davis, 305 U. S. 32, 41, 83 L. Ed. 26, 30, 59 S. Ct. 3, 118 A.L.R. 1518, and the like. Divorce, like marriage, is of concern not merely to the immediate parties. If affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises.”

It is true that Williams v. North Carolina, supra, and similar cases decided by the U. S. Supreme Court were concerned with the extra-territorial effect that must be given to a foreign decree under the full faith and credit clause, and did not involve the question of the validity of a non-domiciliary decree in the state where rendered, as did the Alabama case of Jennings v. Jennings, supra. After pointing this out on page 398 of his work on Conflict of Laws, supra, Judge Goodrich posed these questions: “May we expect to see it decided that such a decree is not entitled to recognition where rendered, also? Since the Fourteenth Amendment, U.S.C.A. Const., a money judgment rendered against a defendant not before the court by virtue of allegiance, valid personal service, or consent, is void even in the jurisdiction where rendered. Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 35 S. Ct. 579, 59 L. Ed. 910, 1915. Could not the same argument be applied to a case where a court has attempted to adjudicate upon the status of persons domiciled elsewhere and so is without jurisdiction in the international sense?”

Strangely enough, the author soon joined his colleagues in fashioning an affirmative answer to these questions. In Alton v. Alton, (C.C.A. 3rd Cir.) 207 F. 2d 667, the court considered the validity of a statute of the Virgin Islands which, in effect, declared six weeks residence by a plaintiff in a divorce action to be the equivalent to domicile where there was personal service on the defendant. After finding that the constitutional restrictions on the actions of a Virgin Islands government were substantially the same as those on the states, the majority held that the portion of the statute which empowered a court to grant a decree of divorce without reference to domicile violated the requirements of due process. Judge Goodrich, speaking for the majority, said: “Before the days of the Fourteenth Amendment, a state could and some states did, pass rules for the exercise of jurisdiction against nonconsenting, nonresident absentee defendants. These rules were not based upon what are now considered the fundamental requisites for such jurisdiction. The judgments were not recognized in other states under the full faith and credit clause, but there was no foundation for testing their validity in the state where they were rendered. After the Fourteenth Amendment provided a way for testing the validity of these judgments in the rendering state under the due process clause, it became well settled that an attempt to give a personal judgment for money against one not subject to the state’s jurisdiction was invalid at home under due process, as well as invalid abroad under full faith and credit. With regard to this type of case one can generalize and say that due process at home and full faith and credit in another state are correlative.

“The Restatement of Conflict of Laws says flatly that a state may not create an interest where it does not have jurisdiction. Undoubtedly the result of a divorce decree is to affect interests in a matrimonial relationship. If it is still correct to say that the basis for divorce jurisdiction is domicile, a state where the party is not domiciled is, in rendering him a divorce, attempting to create an interest where it has no jurisdiction. Its attempt to do so is an invalid attempt, and contrary to the due process clause.

“We think that the premise that divorce jurisdiction is founded on domicile is still the law. It was reiterated by the Supreme Court in unequivocal language in the quotation cited above, which language is the more significant because of the strong dissent expressed by Mr. Justice Rutledge. If that premise is to disappear in the light of real or supposed change in social concepts, its disappearance should be the result of the action of higher authority than ours.

“The result suggested above is not spelled out in the books. If the Restatement generalization is correct the application necessarily follows. The Restatement generalization is demonstrably correct so far as a personal judgment for money is concerned. The arguable point here is whether in a world of changing modes jurisdiction for divorce based on domicile is as fundamental as the rule that you must have a defendant subject to your jurisdiction before you can give a personal judgment against him. Minority dictum from a member of the Supreme Court has indicated impatience with the domiciliary requirement.

“We think that adherence to the domiciliary requirement is necessary if our states are really to have control over the domestic relations of their citizens. The instant ease would be typical * * * Domestic relations are a matter of concern to the state where a person is domiciled. An attempt by another jurisdiction to affect the relation of a foreign domiciliary is unconstitutional even though both parties are in court and neither one raises the question. The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere. The Supreme Court has in a number of cases used the due process clause to correct states which have passed beyond what the court has considered proper choice-of-law rules.”

Although the U. S. Supreme Court granted certiorari in the Alton case, it became moot when the husband procured a divorce in another jurisdiction before the court reached it on the merits and the case was dismissed in Alton v. Alton, 347 U. S. 610, 74 S. Ct. 736, 98 L. Ed. 987. The problem came before the U. S. Supreme Court again in Granville-Smith v. Granville-Smith, 349 U. S. 1, 75 S. Ct. 553, 99 L. Ed. 773, where the material facts were the same as in the Alton case and the same result was reached in the Circuit Court of Appeals as in that case. The Supreme Court affirmed by a divided court but the majority did not explore the issue of jurisdiction and, instead, held that Congress had not given the Virgin Islands power to enact the statute.

The holdings in Williams v. North Carolina and similar cases as well as those in the Jennings, Alton and Granville-Smith cases have evoked much comment, critical and commendable, by law writers generally. At least one state has adopted the reasoning of the dissenting judges in the Williams and Alton cases in dealing with the issue in cases which did not reach the U. S. Supreme Court. See Wallace v. Wallace, 63 N. M. 414, 320 P. 2d 1020, where the court held it was within the power of the Legislature to establish mere residence of the petitioner for one year as a basis for jurisdiction in the case of military personnel stationed in the state for that period. This conclusion is apparently bottomed on the theory that American divorce law has outgrown the doctrine of jurisdiction in rem; and that a reasonable period of residence alone should be regarded as a sufficient substitute for domicile as a basis of jurisdiction. One able writer feels that one year should be the minimum if mere residence is to be substituted for domicile while another suggests that a six months period might be sufficient. Either period would present a much closer question than is in issue here. Even in Nevada, a petitioner is still theoretically required to prove domicile in addition to six weeks’ residence before jurisdiction is acquired.

The problem presented in the instant case is difficult and highly controversial. Admittedly no clear, comprehensive and satisfactory basis for determining divorce jurisdiction in all cases has yet been devised either legislatively or judicially. Perhaps the most appropriate remedy would be for Congress to specify a period of residence which it deemed sufficient to satisfy the full faith and credit requirements of the U. S. Constitution. Until this or some similar action is taken, we are unwilling to abandon the traditional rule that domicile in the state is an indispensable requisite for divorce jurisdiction. Even while this court still adhered to the doctrine of Squires v. Squires, 186 Ark. 511, 54 S. W. 2d 281, it paradoxically refused to recognize or give any effect to a divorce granted in another jurisdiction which is the domicile of neither spouse. In doing so, we approved and followed the reasoning of those courts which hold to the domiciliary theory of jurisdiction and proclaim that recognition of the non-domiciliary decree would hopelessly frustrate and make vain all state laws regulating and limiting divorce. Bethune v. Bethune, 192 Ark. 811, 94 S. W. 2d 1043, 105 A.L.R. 814; Leflar, Conflict of Laws, Sec. 135.

Surely there is something fundamentally wrong with a judicial double standard under which the court of one state fondly embraces a jurisdictional practice within its own realm which it condemns as downright reprehensible when indulged in by the courts of a sister state. We decline to lend a hand to such judicial amorality and duplicity. If domicile is the jurisdictional test for the compulsory recognition of a foreign divorce decree, as the IT. S. Supreme Court has repeatedly held, then the same test should determine the validity of a decree in the state where rendered. In our opinion the holdings of the Alabama Supreme Court and the Circuit Court of Appeals to that effect in the Jennings and Alton cases, supra, are logical and sound.

       Act 36 designated this section as 34-1208 (a) but this was changed by the compilers of Arkansas Statutes to preserve the uniformity of the numbering system of the statutes.

       Goodrich, Conflict of Laws, supra; 32 Va. L. Rev. 555; 93 U. of Pa. L. Rev. 341; 28 Harvard L. Rev. 930; 67 Harvard L. Rev. 615; 54 Yale L. J. 799, supra; 42 A.B.A. 225.

       Rabel, The Conflict of Laws — A Comparative Study, 397.

       Lorenzen, Haddock v. Haddock, Overruled, 52 Yale L.J. 352.


author: Paul Ward, Associate Justice.

text:
    Tatum v. Chandler.
    5-1716
    319 S. W. 2d 513
    Opinion delivered December 22, 1958.
    [Rehearing denied February 2, 1959]

      Joe Purcell, for appellant.

      John L. Hughes é Fred E. Briner, for appellee.
   Paul Ward, Associate Justice.

This litigation relates to the probation of a will made by W. M. Tatum March 31, 1954. Mr. Tatum, a widower at the time, died on February 24, 1957 at the age of 86, leaving three sons and one daughter. Appellee, May Belle Chandler, is the daughter and two of the sons are J. W. and James L. Tatum, the appellants. The other son is Auda L. Tatum.

The trial court admitted the will to probate, and appellants here seek a reversal on three grounds, to-wit: One, the will was not executed according to law; Two, the testator lacked mental capacity, and; Three, undue influence on the part of appellee.

The testator left an estate estimated at approximately $40,000 principally in real estate. By the terms of his will J. W. received 6 acres of land out of a certain forty on which the home of the deceased was situated; Appellee received the balance of that forty; J. W. and appellee together received an additional 90 acres; James L. received three acres with certain restrictions valued at about $800 and; Auda L. received one dollar.

From the record it appears that J. W. and his family lived with his father on the home for many years and that, until recent years, they farmed together; Appellee lived in Missouri but visited her father on numerous occasions; She made several gifts to her father totaling, according to her statements, about $2,000; At one time the son Auda, who lives in California, was given 40 acres of land by his father, and at another time he was given a place to bnild a house; J. W. and James L. had also received gifts from their father.

One. Appellant’s contention that the will was not legally executed is based on the testimony' of the two attesting witnesses. They both admitted they saw W. M. Tatum sign his name at the bottom of the paper or will, and also admitted they signed their names at the bottom of the attesting clause in the testator’s presence and in the presence of each other. Both witnesses however, said the will was not read in their presence and that the testator did not state the paper was his will or request them to sign as witnesses. In support of their contention appellants cite Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.

We are unable to agree with appellants. The will and the attesting clause admittedly appear to be regular in every respect. The attesting clause which the two witnesses admit signing states that they signed at Tatum’s request and that he declared in their presence the instrument was his last will and testament. The Orr case just cited merely holds that it is indispensable that the testator should know the contents of the will at the time of its execution, and that no presumption of due execution of a will arises from the mere production of an instrument purporting to be a last will.

In this case there is much more than the mere production of an instrument. The undisputed testimony of appellee was that Tatum had talked to her previously about making a will; that he, on this occasion, not only requested a will be made but dictated to her, while she made notes, just what he wanted in it; that he gave her land descriptions which she had never known; that she had an attorney to write the will as directed, and; that she personally invited the attesting witnesses to be present and informed them fully of the purpose. Before the two witnesses attested the will they visited a few minutes with J. W. Tatum and his wife in a room near where the will was executed, and J. W. knew at that time the will was to be executed. All these circumstances and others which could be cited from the record leave little doubt that all parties knew exactly what was going on at the time the will was executed. The Probate Judge’s finding that the will was properly executed is supported by the weight of the evidence. This court has held that such circumstances may be considered in this kind of a case. In Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936, we approved this statement.

“Each of the attesting witnesses must sign his name as a witness at the request of the testator, but such request might be inferred from the attendant circumstances in proof by signs or gestures as well as words . . . by the testator desiring the witnesses to be sent for to attest the execution of his will, or from a request made to such witnesses by another person in the testator’s presence.”

This court, in the case of Meek v. Bledsoe, 221 Ark. 395, 253 S. W. 2d 369, used language which we think is applicable here. In holding that it was not necessary to the validity of a will to show it was read by the testator before he signed it, the court quoted with approval:

“It is sufficient if the court is satisfied by competent evidence that the contents of the will were known to and approved by him. Where a will, written in the presence of the testator according to his dictation, is executed according to the statute, it is valid though not read to or by him.”

“The doctrine as stated by the English cases on this point is illuminating, viz.: ‘If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out. ’ ’ ’

In the case under consideration the record shows, in addition to what is heretofore set forth, that the testator had talked with the attorney who wrote the will and had paid him for writing it, that he actually signed the instrument which is now conceded to be his will, and that he talked to others later about having made the will. All this, we think, leaves no doubt that the will was properly executed in compliance with the statute. Certainly in the absence of any showing to the contrary, we must say that the court’s finding is supported by the weight of the evidence.

Two. In our opinion the record supports the finding of the Probate Court that W. M. Tatum was competent to execute his will. Mr. Tatum who was approximately 83 years old when he signed his will on March 31, 1954 and lived about 3 years thereafter. It is true that he had been in feeble health for a few years, that he was in bed at his home when he signed, and that he entered the Arkansas Baptist Hospital on April 5th or 6th, 1954. At that time Dr. Autry examined him, and later testified that Tatum’s condition was very poor, that he was not mentally alert, and that in his opinion Tatum was not mentally competent on March 31, 1954 to execute the will. On cross-examination however he stated “I cannot say that W. M. Tatum did not know what he was signing when he executed his will on March 31, 1954.” The testimony of Dr. Brown was much the same as that of Dr. Autry except there was no qualifying statement on cross-examination. There was also lay testimony to the effect that Tatum did not recognize some of his neighbors from time to time.

On the other hand there was somewhat convincing evidence that Tatum was competent to execute the will. James C. Yerdier, minister of the First Penecostal Church, testified that he had known Tatum since 1938, that Tatum was a friend but not a member of his church; that he visited him often — once just about the time the will was signed; that he talked with Tatum, and he appeared to be very rational, and; that Tatnm discussed the matter of the will with him in 1955. Dr. John W. Ashby, in substance, stated: I had known Tatum for 15 years, and treated him frequently during that time; I examined him the day the will was signed and he was suffering from uremia; I had been treating him for this disease several years; W. M. Tatum was mentally clear when I examined him, (the day the will was executed) he knew what he was doing and was capable of making a will. In addition to the above it was shown that Tatum was up and around visiting neighbors and transacting business after the will was signed.

We have frequently said that the test of mental capacity to execute a will is that the testator must be able to retain in mind without prompting the extent and condition of his property, to comprehend to whom he was giving it, and relations of those entitled to his bounty. See: McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Parette v. Ivey, Executor, 209 Ark. 364, 190 S. W. 2d 441, and; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433.

The burden of proving mental incapacity rests upon the one who seeks to prove it. See: Parette and Shippen, supra, and Gray v. Fulton, 205 Ark. 675, 170 S. W. 2d 384; Jones v. National Bank of Commerce, 220 Ark. 665, 249 S. W. 2d 105, and; Thiel, Adm. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507.

Three. The Probate Judge found no undue influence was exercised to induce the execution of the will, and again we think this finding was justified by the evidence. Appellants admit that they carry the burden of proving undue influence, but say this burden was met by showing appellee was the prime beneficiary and that she helped in preparing for its execution. Due to this circumstance, they say, more strict proof was required of appellee, citing McDaniel v. Crosby, 19 Ark. 533. The rule alluded to however does not relieve appellants of the burden of proof. In fact there is no direct evidence in the record of nndne influence on the part of appellee or anyone else. The fact that appellee received under the will a larger portion of the estate than each of the appellants is not alone convincing or even significant. First, because the testator had a right to dispose of his property as he saw fit, and secondly, the discrepancies are partially justified at least by gifts previously made to some of his children.

Affirmed.