text:
    George JOHNSON v. STATE of Arkansas
    5663
    482 S.W. 2d 600
    Opinion delivered July 17, 1972

      William F. Sherman, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant George Johnson was charged with and convicted of murder in the first degree on May 22, 1970. He presents seven points for reversal. Upon consideration of them and the entire record in the case, we find reversible error in the failure of the circuit court judge to give a requested instruction.

Appellant was charged by information which, after amendment, read:

Comes Richard B. Adkisson, Prosecuting Attorney within and for Pulaski County, Arkansas, and in the name, by the authority, and on behalf of the State of Arkansas information gives accusing GEORGE JOHNSON, JR., of the crime of MURDER-FIRST DEGREE committed as follows, to-wit: The said GEORGE JOHNSON, JR., in the County and State aforesaid, on or about the 22nd day of May, A.D. 1970, did unlawfully, feloniously, cause the death of Vicki Siscoe while in the perpetration of a Burglary, against the peace and dignity of the State of Arkansas.

Mr. and Mrs. W. A. Siscoe and their daughter Vicki arrived home from the Siscoe grocery store on the night of May 22, 1970, at about 10:45 p.m. Mrs. Siscoe drove her vehicle into the driveway, parked it and awaited her daughter and husband, who followed her in a vehicle driven by the husband. He stopped his car and the daughter got out, opened the front door and entered the Siscoe dwelling. Her father heard her screaming inside the house and ran inside, armed with a .38-caliber revolver, where he became aware of the presence of an intruder who threatened to kill him and began firing a weapon. When Siscoe returned the fire, the intruder grabbed Vicki, swung her around as a body shield and a scuffle ensued during which Siscoe fired, or attempted to fire over the intruder’s shoulder. Shots were fired by the father and by at least one intruder. In the exchange of gunfire, Vicki Siscoe was struck by a bullet from her father’s weapon and another from a .22-caliber weapon obviously fired by the intruder. The state medical examiner testified that, in his professional opinion, Vicki’s death was caused by a large caliber bullet of the same type as a .38-caliber slug exhibited to him. Both appellant, who admitted his presence in the house at the time, and W. A. Siscoe were wounded. All three wounded persons were admitted to Baptist Medical Center, where Vicki Siscoe died.

Fingerprints lifted from the .22-caliber pistol were not Johnson’s. There was obvious evidence of a forcible entry into the house by the breaking of a window and the removal of a window screen. The ransacking of dresser drawers and the opening of two piggy banks therein were clear indications of larcenous intent of at least one of the intruders. Fingerprints lifted from the windowsill were not Johnson’s.

Siscoe, while in a condition of near hysteria, described the intruder he saw to Officer L. G. O’Kelley of the Little Rock police force as a slender black male wearing a mask. The officers who came to the house found the den spattered with blood and in a disorderly condition. Officer Paul Plummer found a trail of blood from the back door and through the backyard. Two .38-caliber bullets were removed from appellant’s body at the hospital. One of them was positively identified by ballistics tests as having been fired from W. A. Siscoe’s pistol. Bullet holes were found in a corner of the den and on the sidewall of a storage room opposite the den.

Siscoe was unable to describe the clothing of this intruder, but positively identified Johnson as the person with whom he exchanged fire in the house and at whom he fired outside the house, after the intruder left. Officers were unable to serve subpoenae, issued at appellant’s instance, on Eddie Jackson, Lacie Gordon or Benny Kelley. George Johnson testified that he went to the Siscoe house with these three and was admitted by Jackson, who had gained entry through a window which he unlocked and raised after he had broken a pane with a pistol. Johnson testified that he had never owned a gun and that he did not have a gun of any kind while at the Siscoe house, but that Jackson did. Johnson saw Vicki Siscoe come into the house and walk toward that portion where he and Jackson were. According to Johnson, he never fired any weapon on that night but Jackson did. Johnson said that he was trying to open the back door, as instructed by Jackson, when he was struck by one bullet. He said he was hit by another as he fled through the backyard. According to Johnson, Jackson was entering a closet when last seen by him.

There is no doubt that if the Siscoe version of the shooting is correct the felony-murder rule would apply and it would be proper to say that Johnson was guilty of either first degree murder or nothing at all. Both of the elder Siscoes identified Johnson as the assailant. But this ignores appellant’s version of the case. Under his theory, Johnson might not be guilty of the felony-murder. There is little doubt that Vicki Siscoe’s father fired the fatal shot, and Johnson denies that he was a participant in the crime.

We cannot agree that appellant was entitled to a directed verdict on the felony-murder charge. He contends that since neither he nor the person he claimed to have accompanied to the Siscoe house fired the fatal shot, the killing of Vicki Siscoe could not constitute this type of murder. The most analagous case we have is Wilson v. State, 188 Ark. 846, 68 S.W. 2d 100. There we agreed with the following principle stated in cases from other jurisdictions:

A attempts to rob B. B, while resisting the attempted robbery, shoots at A and accidentally kills C who is an innocent third party. A cannot be convicted of the murder of C. The reason for the rule in such a case is stated in the Kentucky case as follows: “In order that one may be guilty of homicide, the act must be done by him actually or constructively, and that cannot be, unless the crime be committed by his own hand, or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose.”

We did not agree, however, that the principle of these cases applied. In Wilson, we recognized and applied the “shield” or “breastwork” theory. Under this theory the acts of persons attempting to escape when a police officer discovered them in the process of robbing a bank, taking a teller from his place of safety in the bank at the point of a pistol, and putting him in a place of danger from gunfire by the officer, thinking perhaps that their pursuers would not shoot at them for fear of killing Guthrie, were held to constitute murder. Following the reasoning of two Texas decisions, Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961 (1900), and Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125 (1900), we held that the fleeing felons must abide the consequences of their unlawful act, even though the result was not intended, and the act of Wilson in forcing the teller to a place known by the robber to be perilous was just as much a cause of the teller’s death when he was accidentally shot by the police officer as if Wilson himself had fired the fatal shot. We held that since under Ark. Stat. Ann. § 41-2202 (Repl. 1964), the manner of killing is not material, this act constituted murder, both at common law and under the statute. We equated this action with homicide committed by exposing a helpless child to inclement weather, forcing a sick and weak sailor to go aloft, causing one to jump from a moving train, directing a blind man in a direction so that he walks off a precipice or striking a deceased blows which caused him to fall from a wagon in which he was riding, so that a wheel of the wagon passed over his body, which, of course, would constitute first degree murder, if the requisite circumstances exist. Examination of the authorities cited in Wilson clearly demonstrates the basis for the distinction we made there.

There is substantial evidence here that the intruder who used Vicki Siscoe as a shield was guilty of murder as defined in §§ 41-2201 and 41-2202. Consequently, there was evidence that the intruder committed murder in the preparation of or in the attempt to perpetrate burglary. Since both Mr. and Mrs. Siscoe identified Johnson as this intruder, the evidence was sufficient to present a jury question on felony-murder. We might well end our inquiry into the felony-murder charge here, except for the testimony by Johnson that he did not enter the Siscoe house with the intent to commit larceny, and did not know that his companion Jackson had any intention to do anything there except collect some money due him, until Jackson broke a window to gain entrance. There is also testimony by Johnson that he did not in any way participate in the shooting or in the utilization of Vicki Siscoe as a shield, if indeed this happened.

This brings us to a consideration of Johnson’s responsibility for the acts of his companion. In doing so, we must say that there was sufficient evidence from which the jury might well have found that Jackson and Johnson entered the Siscoe house in the execution of a conspiracy or common design or plan to do so with the joint object or purpose of committing larceny therein. Each conspirator or participant is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. The burglary and larceny, if committed, or the scheme to commit these crimes, if it existed, did not terminate until the perpetrators had left the scene. Clark v. State, 169 Ark. 717, 276 S.W. 849. The acts of the participants in an effort to escape are a part of the continuous scheme or conspiracy and the act of one is the act of all. Wilson v. State, supra; Clark v. State, supra; Maxwell v. State, 188 Ark. 111, 64 S.W. 2d 79. In the cases cited in Wilson from other jurisdictions, it is clearly recognized that the law holds a participant in a crime responsible for the acts of another acting in concert with him or in the furtherance of a common object, design or purpose. Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541 (1863); Butler v. People, 125 Ill. 641, 18 N.E. 338 (1888); Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961 (1900); Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125 (1900); Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085 (1905).

We do not agree that appellant was entitled to any instruction on the lesser degrees of homicide in this case. Clark v. State, supra. See also, Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311; Murray v. State, 249 Ark. 887, 462 S.W. 2d 438. Johnson was either the burglar seen and fired at by Siscoe inside the house, or a confederate of one whose acts constituted a felony-murder or he was innocent. There is no evidence that would have justified an instruction on the lesser degrees of homicide.

Appellant complains that the court failed to give his requested instructions No. 8 and No. 18. They were:

For a defendant to be guilty of murder under the felony murder rule, the act of killing must be committed by the defendant or by his accomplice acting in the furtherance of a common design. (No. 8)
In order that one may be guilty of a homicide, the act must be done by him actually or constructively, and that cannot be unless the crime be committed by his own hands or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose. (No. 18)

Appellant was entitled to have a correct instruction bearing on his theory of the case, if there is any supporting evidence and if it is not covered in other instructions given by the court. Lighter v. State, 157 Ark. 261, 247 S. W. 1065. Appellant was not entitled to both instructions. The first probably should not have been given because the words "act of killing” might have been misleading and confusing to the jurors, causing some of them at least to believe that, in order to be guilty, either the defendant or his accomplice must have fired the weapon that caused the death. Number 18, however, is a direct quotation from Wilson v. State, supra, and is a correct declaration of the law. It was necessary that the jury find that the act, i.e., putting Vicki Siscoe in the place of known danger as a shield or breastwork, was done by Johnson, or by someone acting in concert with him, or in the furtherance of a common object or purpose. The jury was not so advised in any other instruction. It may well be that the state would have desired a modifying or explanatory instruction if No. 18 had been given, or that appropriate clarifying language be added, so that the jury would know that it was not necessary that appellant fire the shot that caused the death or that he have any knowledge or intent that the deceased would be put in the position of known danger. Still, it was a correct declaration of law. The only instruction remotely approaching this subject would not have told the jury that an unlawful act by the alleged accomplice would not render Johnson responsible for the consequences unless the two were acting in concert or in the furtherance of a common object or purpose. Because of the failure to give an instruction covering this phase of the case, we must reverse the judgment.

We will now consider only those alleged errors which may arise in a retrial of the case.

Appellant asserts that the court failed to give any instruction defining the intent necessary for the crime of burglary, i.e., the intent to commit a felony or larceny. No request for such an instruction was made until the jury returned to the courtroom after deliberating for some time, asking a clarification of the word “intent” in the instructions given which had been a virtual recitation of the burglary statute. Even then, the appellant offered no instruction except a dictionary definition that could have proved of little or no help to the jury. It appears to us that appellant would be entitled to a proper statement of the law on this point, if a proper request should be made.

Appellant also contends that evidence of an involuntary oral statement made bv him to Detective R. B. Jones was improperly admitted. This detective had assisted in the investigation at the Siscoe house. There he learned that Mr. Siscoe had shot at someone inside the house and at some one fleeing from the house, and that someone other than the Siscoes had been shot. He also knew that there was blood inside the house and leading outside the house and that a .22-caliber pistol had been found at the rear of the house. Jones was advised at some time during the investigation or while en route to the hospital where the Siscoes were being taken that an unidentified black man with a gunshot wound had been admitted to the hospital.. He proceeded to the hospital. After checking on the Siscoes, Jones went into appellant’s room for the required routine investigation conducted when a gunshot wound is reported. Jones was permitted to testify about a conversation with appellant, after the court had determined at an in camera hearing that it was admissible. Jones there testified that: the man in the room was appellant but that he gave his name as Bill Nelson; this person was not a suspect in the Siscoe shootings; appellant was conscious and talking and that, in investigating appellant’s shooting, he asked appellant what happened, without advising appellant of his constitutional rights; he wanted to check out this man’s story to see whether he might be involved in the Siscoe shootings.

Jones then testified in open court that the appellant told him that he had received gunshot wounds while in a card game at the Ebony Pal Lounge at Wright and High Streets, and Jones said he sent officers to investigate and then went to interview Mr. Siscoe about the events of the evening, feeling that appellant was then a suspect. It was later shown that there had been no incident at the Ebony Pal Lounge of the type described to Jones by appellant and appellant’s true identity was later established. The officer was properly investigating the report of the gunshot wound. Appellant was not sufficiently suspect at the time of the first conversation with the officer for the investigation to have reached the accusatory stage. We cannot accept appellant’s argument that his physical and mental condition at the time Jones entered the room made the interrogation custodial. Appellant had not, at that time, been deprived of his freedom by the authorities in any significant way. The statements made tended to be exculpatory, but regardless of their nature, the inhibitions of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966), apply only to interrogation by law enforcement officers after the person questioned is in custody or has been deprived of his freedom of action in a significant way. Jones would have been derelict in his duty if he had not asked Johnson the questions he asked after he received the report of the gunshot wound.

We do not find any error in the admission of personal items obtained by Detective Jones in a search of Johnson’s person in the hospital. During the last conversation with Siscoe, Jones obtained a description of the intruder Siscoe saw at his home. Jones said that he then returned to appellan’s room. At this point in the trial another hearing was held in chambers. There Jones said that appellant was then definitely a suspect, and that when he entered the room he noted a bulge in appellant’s pocket. Jones testified that he realized that appellant had been in a shooting, feared that appellant might be armed and had received information that the name given him was false, so he proceeded to stick his hands in Johnson’s pocket to make sure he did not have a weapon. Jones said that he was unable to “frisk” Johnson by patting his clothing because he was lying on a table and it would have been necessary to roll him over. He also said that whenever he felt an object in making a “frisk,” he always checked to see what it was. He added that he was making sure that Johnson did not have a revolver in his pocket. The officer first removed and then replaced a cigarette lighter and “some change” he found in Johnson’s pocket. A police guard was then placed at the door of Johnson’s room. Johnson’s clothing and personal property were delivered to Jones at the hospital. The change, consisting of $2.55 in pennies, nickels, dimes and quarters, was admitted into evidence along with other insignificant items. The original search of Johnson disclosed the money. That search was a reasonable one and not excessive in scope as a search for the protection of the officer and others from any unnecessary risk. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). We are unable to say that the subsequent search and seizure of the property in traduced in evidence was not reasonable as an incident to Johnson’s arrest. See Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

Officer Larry Dill of the Little Rock Police Department assisted in the investigation of the incident that took place at the Siscoe home. About 3:00 p.m. the next day he went to George Johnson’s room at the hospital. In Chambers, he testified that he obtained permission to see Johnson from the head nurse on the floor. He found Johnson awake and said he appeared to be alert. Dill stated that he identified himself, told Johnson why he had come and advised Johnson that he was a suspect in a murder and that he had the right to use a telephone, to remain silent, to talk to an attorney, either retained by him or appointed by the court, to stop interrogation at any time and that any statement he made would be used against him in a court of law. According to Dill, Johnson stated in his own words that he understood his rights but did not wish to sign a waiver form. Dill then asked Johnson .about the shooting and Johnson said that it took place at Wright and High, the same location he had given Detective Jones the night before. Dill then told Johnson that there had been a similar shooting at 2218 Rock, the address of the Siscoe house. Johnson asked Dill what had happened and Dill told him that a little girl had been killed by someone who had apparently broken into the room. Dill said that Johnson stated drat he did not shoot anybody. When the officer told Johnson that the police had lifted fingerprints, and that it would be necessary to take Johnson’s prints, Johnson, according to Dill, said that they might find his prints but that he did not kill anyone, asked if they could not run ballistics tests to determine who had shot the little girl, and added that he (Johnson) might have been there, but he did not shoot anyone. Johnson then told the officer that he was tired but did want to talk to him later. Dill then left. According to Dill, the conversation lasted five or ten minutes. Upon this testimony, we cannot say that the circuit judge’s findings that the statements of Johnson were voluntary were erroneous, even though we do not agree with the court’s holding that- the defendant bore the burden of showing that his statements were not voluntary.

Appellant also contends that the jury panel from which the jury was drawn did not represent a fair cross section of Pulaski County and that the court erred in failing to quash the jury panel. Specifically, he says that only one member was under 25 years of age, only seven under 30, a “token” number from farmers and the laboring class, and only six who had not had at least 12 years of schooling. Little purpose would be served in our review of the evidence on the motion to quash the panel, which was denied by the circuit court, because a new panel will be used on retrial. We find no error, however, in the denial of the motion because we cannot say that the evidence presented showed a systematic or intentional exclusion of significant groups. It will never be possible to select a panel of jurors proportioned among every identifiable class or group in the same percentages that they bear to the total population of a county.

The judgment is reversed and the cause remanded for a new trial.

Holt, J., not participating.

      The daughter’s name appears as “Vicky” in the transcript of the testimony. We use the spelling in the information throughout.


source: Caselaw Access Project

author: J. Fred Jones Justice.

license: Public Domain

text:
    Robert T. KIRKWOOD v. Jessee CARTER, County Judge et al
    5-5975
    482 S.W. 2d 608
    Opinion Delivered July 17, 1972
    [Rehearing denied August 28, 1972.]

      Thomas A. Glaze, for appellant

      George F. Hartje and William C. Brazil, for appellees.

      Walker, Kaplan If Mays, for League of Women Voters of Arkansas, Amicus Curiae.

      Judith Rogers, for American Ass’n. of University Women, Ark. Div., Amici Curiae.

      Youngdahl, Brewer, Forster, Huckabay If Uhlig, by: James E. Youngdahl, for State AFL-CIO and UAW, Amici Curiae.
   J. Fred Jones Justice.

At the November, general election in 1968 the qualified electors of Faulkner County voted for the use of voting machines in that county. On November 1, 1971, the appellant Robert T. Kirkwood filed a taxpayer’s petition in the Circuit Court of Faulkner County on behalf of himself and other residents similarly situated seeking a writ of mandamus requiring the appellees, Jesse Carter as county judge, and Tom Lindsey, Clarence Johnson and John F. James as the County Board of Election Commissioners, to comply with §§ 3 and 4 of Art. 12 of Act 465 of 1969 by purchasing or lease-purchasing voting machines to be used in Faulkner County.

The county judge filed a demurrer to the petition on the ground that the petition for mandamus failed to state a cause of action against him. The respondent members of the County Board of Election Commissioners filed an answer in which they attempted to explain and justify their inaction by pointing out that they had been advised, and therefore believed, that there has not been sufficient Faulkner County tax funds available for the purchase, or lease-purchase, of voting machines, and to purchase the machines under such circumstances would be in violation of Art. 12, § 4, of the Constitution of Arkansas.

Following a hearing on the petition the trial court found that on November 5, 1968, the electorate of Faulkner County voted to have voting machines installed in Faulkner County in compliance with Act 465 of 1969. The trial court found that under the petition of a writ of mandamus the court was not called on to determine the number of voting machines required to be purchased by the Faulkner County Board of Election Commissioners, but that the court was only required to determine whether there was sufficient revenue available for the purchase of voting machines. The court found that there were sufficient county funds available for the pirpose of voting machines, but that the number of voting machines to be purchased is within the discretion of the Election Commissioners. The trial court entered its order as follows:

“IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Petition for Writ of Mandamus be, and the same is hereby, granted and upon the application of the Petitioner, the Clerk of this Court is ordered and directed to issue a Writ of Mandamus to Respondents, Tom Lindsey, Clarence Johnson and John F. James, as Faulkner County Board of Election Commissioners, ordering and directing them to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased.”

On appeal to this court Mr. Kirkwood relies on the following points:

“The trial court was in error in holding as a matter of law that the number of voting machines is left to the discretion of the County Board of Election Commissioners.
The trial court was in error in sustaining the Demurer of the Respondent Judge Jesse Carter, Dismissing such County Judge from this suit.”

Amici curiae briefs have been filed in this case by interested organizations on behalf of the appellant and the case was argued orally before this court. It is apparent from the entire record that the appellant may have confused the trial court’s findings with the trial court’s order, and may have assumed, that in the light of past events, the respondent Election Commissioners would interpret the trial court’s findings and order as vesting in them full, complete and unlimited discretion in detmining how many voting machines they should purchase or lease-purchase for Faulkner County. We do not so interpret the trial court’s findings and certainly we do not so interpret the trial court’s order. The Board of Election Commissioners derive their discretion in the performance of their duties from the legislative Act creating and defining their duties, and not from the findings of a trial judge on a petition for mandamus.

It is difficult to understand the delay and the method employed by the Faulkner County Board of Election Commissioners in failing to carry out their duties in connection with this matter. It is apparent from the overall record that instead of seeking the advice of the prosecuting attorney as they had a right and obligation to do under the Constitution and laws of this state, the Election Commissioners sought and followed the advice of the county judge, whose official duties and responsibilities are entirely separate and apart from those of the Board of Election Commissioners under Act 465 of 1969, as well as in every other respect.

It is definitely suggested by the overall record in this case, that the Faulkner County Board of Election Commissioners simply did not agree with the electorate of Faulkner County as to the wisdom of spending tax money for voting machines. The record indicates that instead of proceeding, in an orderly and businesslike manner toward finding ways and means of carrying out the duties of their office under the law and the mandate of the people, the Commissioners did just the opposite by seeking ways and means of avoiding the performances of their duties under Act 465 and under the mandate of the people of Faulkner County.

It is also apparent from the record that perhaps the county judge has been under the impression that he is to approve the expenditure of funds for the purchase of voting machines before the Election Commissioners are permitted to purchase or lease-purchase them under the law. If such has been the impression and attitude of the Board of Election Commisioners and the county judge, such interpretation and attitude should have been dispelled by the order of the trial judge in this case as we interpret it.

The trial court’s finding that he was only called upon by the petition for mandamus, to determine whether money was available for the purchase of voting machines falls in the same category as the trial court’s findings as to the discretion of the members of the Board of Election Commissioners. The purpose of the writ of mandamus is not to establish legal rights or measure the discretion of public officials, but the purpose of the writ of mandamus is to enforce a right after it is already established or to enforce the performance of a duty. Howard v. McDiarmid, 26 Ark. 100; Fitch v. McDiarmid, 26 Ark. 482.

The trial court in the case at bar was called on by the petition for the writ of mandamus to enforce the performanee by the Election Commissioners and the county judge, of the duties imposed upon them by law in regard to the procuring of voting machines in and for Faulkner County, and as we interpret the trial judge’s order, he did just that. The trial court simply ordered the members of the Board of Election Commissioners to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased. There were no duties to be performed by the county judge in connection with the purchase of the voting machines when the petition for the writ of mandamus was filed in this case, and the hearing was conducted thereon, so the trial court was correct in sustaining the demurrer. We are of the opinion that the trial court’s order directing the members of the Board of Election Commissioners to initiate and file a plan for the purchase of voting machines means, and should have recited, that they shall do so forthwith.

It is a matter of common knowledge that members of Boards of Election Commissioners are not attorneys and the membership personnel change from time to time in the various countries. The appellees’ counsel stated on oral argument in this case that the Faulkner County Board of Election Commissioners had never consulted attorneys as to its legal duties and obligations in connection with procuring voting machines until the taxpayer’s petition for mandamus was filed in this case. The issues have been considerably narrowed by the attorneys in their briefs and oral arguments. The appellees state in their brief that no one questions the duties of the Board to purchase voting machines; that the Board has never denied its duties to purchase voting machines and does not do so on this appeal. The appellees argue that the appellant has sought by mandamus to dictate to the Board the number of machines it shall purchase and as already pointed out, the appellant contends just the opposite. The appellant argues that under the order of the trial court the Board, in the exercise of its discretion, may determine that only one machine for the entire county is sufficient. We can anticipate no such gross abuse of discretion under the trial court’s order and under advice and directions from competent counsel.

We agree with the appellees that under Ark. Stat. Ann. § 3-1201 et seq. (Repl. 1956) the county Board of Election Commissioners are vested with some discretionary choices in the manner of performing their duties. We also agree with the appellees that the Board has some discretion in arranging for the manner of payment. We deem it unnecessary to discuss in this opinion all the multiple areas of discretion as alleged and argued by the appellees in their brief. The Board of Election Commissioners is now represented by competent counsel who undoubtedly have by this time advised the Board as to the extent of its discretion, and certainly as to the proper exercise of such discretion the Board members do have in the competent performance of the duties of their office pertaining to the procurement of voting machines under the statute and the election mandate.

The area of discretion most seriously questioned in this case has to do with the number of machines to be purchased under two sections of Art. 12 of Act 465 of 1969 (Ark. Stat. Ann. §§ 3-1203 — 3-1205 [Repl. 1956]), the pertinent portions of these sections are as follows:

“3-1203. * * *If the majority of the votes cast favor the proposal, the County Board of Election Commissioners shall install any voting machines approved by the State Board of Election Commissioners in all voting precincts in the County, or in the case of a City Election in all wards of the City, in which 300 persons voted in the preceeding general election in which members of the United States House of Representatives were elected. The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County or City in which an affirmative vote is cast under the provisions of this section.
3-1205. * * * Voting machines may be provided for all precincts in all Counties in which 100 or more persons voted in the last preceding comparable election. Precincts voting less than 100 persons may be consolidated, in conformity of the laws of this State, so that the total vote of the precincts would have exceeded 100 in the above primary or general election, or in a subsequent primary or general election, and a voting machine may then be installed in that consolidated precinct. If it shall be impossible to supply every election precinct with a voting machine or voting machines at any election following the adoption of the machines in a County or City, as many may be supplied as it is possible to procure, and the machines shall be used in precincts of the County designated by the County Board of Election Commissioners in' general elections, and by the County Central Committee in primary elections.”

It appears to us that the first duty incumbent upon the Election Commissioners under the law and under the order of the trial court, is to determine the number of voting precincts in Faulkner County where as many as 300 votes were cast, and start immediately, and continue in good faith, negotiations for the procurement of voting machines.

We conclude, therefore, that the order of the trial court sustaining the demurrer filed by the county judge should be affirmed. We also conclude that the order of the trial court as to the issuance of the writ of mandamus should be affirmed with the modification that the Commissioners start the performance of their duties thereunder forthwith, and continue such performance in good faith until their statutory duties are fully performed.

The judgment is affirmed as so modified.


author: Conley Byrd, Justice.

text:
    Lynn Jackson ACKERMAN et al v. Elizabeth Jackson ROGERS et al
    5-5943
    483 S.W. 2d 192
    Opinion delivered July 17, 1972
    [Rehearing denied August 28, 1972.]

      James F. Daugherty, for appellants.

      John D. Eldridge and George Proctor, for appellees.
   Conley Byrd, Justice.

Appellees Elizabeth Jackson Rogers, Virginia Jackson and Gladys Dear brought this action against their sister, Lynn Jackson Ackerman and her daughter Carlynn Ackerman Gee to declare that their mother’s will, barred from probate by the 5 year statute of limitation contained in Act 140 of 1949 (Ark. Stat. Ann. § 62-2125), was not a muniment of title and that consequently they held the approximately 740 acres of land in Woodruff County in fee simple absolute under the laws of descent and distribution. The chancellor so quieted their title and appellants, Lynn Jackson Ackerman and Carlynn Ackerman Gee appeal. For reversal they contend among other things that since appellees accepted the benefits under the will for fifty years they are estopped to deny that the will constitutes a muniment of title.

The record shows that Anna C. Jackson died in 1918 and that by the terms of a will probated August 26, 1918, in Bryan County, Oklahoma left the property as follows:

“Second, I give, divise and bequeath to my children Bernice, Gladys, Elizabeth, Lynn, Wayne, and Virginia all of my real estate which is situated in the County of Woodruff County and state of Arkansas, consisting of 740 acres, share and share alike, subject to the following conditions; no part of said-land shall be sold or in any manner encumbered so long as any of my said children shall live, but during said time shall be kept together without division or partition and the same shall not be subject to any debts created by said children and upon the death of any child without issue the shares of such deceased child shall go to such of children as be living and to the issue of any deceased child or children the surviving children to take share alike and the issue of any deceased child to take such share as the deceased parent would have taken if living, and upon the death of any of my said children leaving issue, then the share of such deceased child shall go to the issue of such deceased child subject, however to the conditions that same will not be devised, partitioned, sold or encumbered so long as any of my children shall live.
Fourth, There being a considerable quantity of merchantable timber on said lands in Woodruff County Arkansas, I devise said timber to my execution: ers in trust will power and authority to sell dispose of same and to grant permission to enter said lands for the purpose of removing said timber and the proceeds from the sale be divided equally between by children, Bernice, Gladys, Elizabeth, Lynn and Virginia.”

The will was never probated in Arkansas. However, an authenticated copy from the Oklahoma Probate Court was recorded in the circuit clerk’s office. Pursuant to the will, the personal representatives, one of whom was appellee Gladys Dear, sold the timber in 1920 for $15,000, and the proceeds were either distributed to the five girls or invested under the supervision of the Oklahoma Probate Court. Thereafter Bernice Jackson Blanchard took possession of the property and so far as the record shows, used the rents and profits from the land for her own use and benefit until her death in 1948. Bernice by her will devised the property to appellant Carlynn Ackerman Gee. The matter was discussed by the family attending Bernice’s funeral and it was there decided that Bernice had only a life estate under her mother’s will.

Since the death of Wayne and Bernice without issue, the surviving children have divided the rent proceeds between them four ways on the basis that Bernice only had a life estate. Neither Bernice’s estate nor her devisee have received any of the rents from this property since 1948.

As we understand the law, it is generally conceded that one who accepts the benefits of a will is thereafter estopped to deny the existence or validity of the will. See McWhorter v. Green, 111 Ark. 1, 162 S.W. 1100 (1914), Hopper v. Nicholas, 106 Ohio St. 292, 140 N.E. 186 (1922), and Board v. Board, L.R. 9 Q.B. 48 (1873).

In the McWhorter case, title had been conveyed to William B. McWhorter and Mary E. McWhorter. William devised the land to his two sons William F. and Thomas on condition that they would care for and support Mary E. McWhorter during her natural life. In an action by one of Mary’s daughters against Thomas it was shown that Thomas had remained on the land and supported his mother in accordance with terms of his father’s will. This court pointed out that since Mary E. accepted the benefits of the will, her heirs, having no greater rights, were estopped to deny Thomas’ ownership. In doing so the court said:

“. . .The rule is well settled that if an outsider undertakes to dispose of the property of another person by will and that person accepts a benefit under the will, such acceptance is a confirmation of the terms of the will and operates to estop such person to object to the disposition of his own property to another. Fitzhugh and Wife v. Hubbard, 41 Ark. 63; McDonald v. Shaw, 92 Ark. 15, and cases cited.”

The Ohio court in the Hopper case, stated the rule in this language:

“A party who consents that a court shall enter judgment and accepts the benefits thereunder cannot be heard to object to the court’s power to render such judgment. This court so decided in Merritt v. Horne, 5 Ohio St., 307. Judge Ranney said, at page 318: ‘There is now no principle better settled, or resting upon firmer grounds of justice and public policy, than that which precludes a party who has induced another to part with his money or property, and has taken the fruits of a judicial proceeding, from afterward questioning its regularity, or by evidence aliunde impairing its effect. * * * Although this doctrine debars the truth in the particular case, yet, as said by the Supreme Court of the United States in Van Rensseiear v. Kearney, 11 How., 326, ‘it imposes silence on the party only when, in conscience and honesty, he should not be allowed to speak.’ And we are of the opinion that it is equally effectual at law and in chancery.”

As pointed out in the English case, of Board v. Board, supra, the parties here are in the same position of a tenant that goes in possession under a landlord. They held their possession and divided the rents and profits therefrom, under the terms of Anna C. Jackson’s will, to the exclusion of the devisee under Bernice’s will. Therefore, we conclude that as between the parties, they are estopped to deny the title, by which they accepted die benefits.

The court below was not asked to probate the will but only to quiet the title of the parties to the land in question. Because the parties are estopped to deny the title under which they accepted benefits, the cause is reversed and remanded with directions to enter a decree not inconsistent herewith.

Reversed and remanded.

Jones, J., dissents.


text:
    Billy H. GIPSON v. Malvin BRAND, County Judge, et al
    5-5979
    482 S.W. 2d 630
    Opinion delivered July 17, 1972

      Rose, Barron, Nash, Williamson, Carroll ér Clay, for appellant.

      Ray Thornton, Atty. Gen., by Henry Ginger, Deputy Atty. Gen., and James Guy Tucker, Prosecuting Attorney for Sixth Judicial Circuit, for appellees.
   Conley Byrd, Justice.

This litigation grows out of a county court condemnation order for the location of Highway 300 in Perry County. Appellant together with other landowners and the County Judge requested the Arkansas State Highway Commission to hard-surface the road in question. The plan called for the lándowners to provide the necessary right-of-way without cost. Pursuant to the plan, the Highway Department prepared the condemnation order entered by the County Court on January 29, 1969. Prior thereto, the sheriff had carried around waivers of formal notice which the property owners signed. Appellant and his wife signed their “Waiver of formal Notice” required by Ark. Stat. Ann. § 76-926 (supp. 1971), on January 22, 1969. In doing so however, he made the following notation on the bottom thereof: “To reserve dipping vat on this property.” The county Judge thereafter told him that everything had been worked out and the dipping vat was going to be left. Gipson also talked to one of the Highway Department’s engineers about the vat. When the engineer observed that the vat was on the right-of-way, appellant mentioned that it had been reserved. The engineer then stated that he saw no reason why they couldn’t move the right-of-way over a few feet.

Clearing work began in the area in 1969. The bulldozers worked up to the vat but left it. A storm cellar and a water trough were dozed out in the spring of 1970, but the dipping vat was not interfered with. After the hard-surface had been laid, appellant received from the Highway Department the following letter:

“Dear Mr. Gipson:
On the above construction project a dipping vat which is on the right-if-way for the project, must be removed in order to complete the project. It is reported to me that the contractor on the project has been ordered not to disturb the dipping vat and that our Area Foreman for Perry County, Jay English, has been advised that he would not be permitted to fence an open gap in the right-of-way fence adjacent to the dipping vat.
As you know the right-of-way for the above construction project was furnished to the Highway Department by action of the County Court of Perry County and at the time of the construction the County Judge advised me that you had made a request that a dipping vat be reserved for your use. After checking on this matter, I advised the County Judge that it would not be possible to leave the dipping vat on the right-of-way nor would it be permissible, should the vat be left on the right-of-way, to use the vat for the dipping of cattle or other livestock.
Since the contractor at this time is trying to complete the project, including dressing of slopes and ditches and so forth, it is requested that you give serious consideration to withdrawing your orders that the vat not be disturbed. We would appreciate it if you would give this matter your immediate consideration and also hope that this matter can be settled amicably in order that the improvement of Route 300 can be completed.”

Thereafter the Highway Department obtained an injunction against appellant. Appellant answered and cross-complained against the county. The County defended on the ground that appellant’s claim was barred by the one year statute of limitations on the filing of claims for compensation in eminent domain actions. After appellant finished his proof the chancellor sustained a demurrer to the evidence and dismissed the cross-complaint against the county.

In Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950), we pointed out that upon a demurrer to the evidence only a question of law as to the sufficiency of the evidence is involved and that in ruling upon the motion the chancellor is not to weigh the evidence but to construe the evidence in the light most favorable to the plaintiff and to rule against the plaintiff only when the evidence fails to make a prima facie case. Because of that rule, we have stated the foregoing facts in the light most favorable to appellant.

To reverse the action of the chancellor in ruling that the one year statute of limitations had barred the claim, appellant relies upon an estoppel and cites our case of Prothro v. Williams, 147 Ark. 535, 229 S.W. 38 (1921). In that case both before and after the assessment of betterments appellee had protested the location of the levee. After the benefits were assessed, but before the time limit for filing claims had expired, the Commissioners promised appellee that they would see about changing the location of the drainage ditch and assured her that if they could not change the location they would again contact her. The district cleared the right-of-way for the alternate route suggested by appellee. She did not learn that no change had been made until actual construction was started. In holding that the district was estopped to rely upon the bar of the statute of limitations, it was there said:

“. . .The conduct of the commissioners, although not intended to deceive or to mislead the appellee, nevertheless had that effect, and to enable them or the district through them by virtue of this conduct to deprive her of her property would be perpetrating a fraud upon her through the forms of law.”

The County Judge here involved, of course, did not intend to deceive his friend — rather it appears that perhaps the Highway Department may have “taken some backwater” on him, but to permit the county at this time to claim thé bar would be most inequitable. It follows that the chancellor erred in sustaining the demurrer to the evidence.

For affirmance appellee relies upon Hot Spring County v. Fowler, 229 Ark. 1050, 320 S.W. 2d 269 (1959). In that case there was no question about the entry and the only ground of estoppel was a conversation near the property in which the County Judge had told Fowler that there would be someone to settle with him for his damages but that he ought to wait until the highway was completed. In holding that such a casual conversation would not create an estoppel it was pointed out that the Cqunty Judge was only mistaken as to the law and that an estoppel could not be based upon an erroneous opinion about a rule of law. Here the matter in issue was the inclusion or exclusion of the dipping vat in a right-of-way — an obvious question of fact. Since no entry was made on the dipping vat, appellant here had every right to think that the vat was not in the right-of-way.

The other point raised by appellant has to do with the testimony of John Carden who testified as to the damages.

All of the proof was to the effect that the difference between the before and after value was the cost of building a comparable dipping vat. As we view the testimony of Mr. Carden his testimony contains no basis to sustain his replacement cost of the dipping vat. Admittedly the witness had never built a dipping vat nor could he estimate the man hours or work days necessary to construct the vat. Upon this record, we hold that the chancellor properly sustained the objection to the proffered testimony.

Reversed.


author: Frank Holt, Justice.

text:
    METROPOLITAN TRUST COMPANY v. CITY of NORTH LITTLE ROCK et al
    5-5935
    482 S.W. 2d 613
    Opinion delivered July 17, 1972

      H. B. Stubblefield and Smith, Williams, Friday, Eldredge if Clark, by: George Pike Jr., for appellant.

      John T. Harmon, City Attorney, for appellees.
   Frank Holt, Justice.

The appellant owns a 22-acre tract of land which it sought to rezone from a single family residential (R-l) to a commercial zoning classification (C-S). This would permit the construction of a proposed community shopping center. The North Little Rock Planning Commission and its Planning Director recommended this reclassification. The North Little Rock City Council, appellee, rejected these recommendations and refused to adopt the proposed reclasification ordinance. The Chancellor agreed with the appellees, the City of North Little Rock and eight intervenors, and refused to enjoin the City Council from interfering with appellant’s proposed use of the property. From that decree comes this appeal.

For reversal the appellant contends that the preponderance of the evidence establishes that the refusal of the City Council to rezone the 22-acre tract in accordance with the recommendations of the City’s Planning Commission and Director was an arbitrary attempt to restrict the growth of an established business district and, further, it was an arbitrary denial of appellant’s right to use its property for its highest and best use which would not adversely affect the value and use of any adjacent property. We agree with appellant.

We first describe the location of the property. It is situated at the intersection of two main traffic arteries: one is the Jacksonville Expressway (Highway 67-167) and the other is McCain Boulevard. This intersection is nearby and north of Interstate 40 in North Little Rock. The Jacksonville Expressway is the primary north-south traffic artery going north from Interstate 40. This 4-lane highway, by appellant’s property, has a speed limit of 75 miles-per-hour and a daily traffic count of 21,000 vehicles. The projected daily traffic count in 1990 is 69,000 vehicles. McCain Boulevard is the primary east-west traffic artery in Pulaski County north of Interstate 40. This heavily traveled artery goes by the appellant’s property at the diamond shaped intersection and has a daily traffic count of 4,000 vehicles with a projected count of 17,000 to 20,000 vehicles per day in 1990.

The subject property, the southwest quadrant of this intersection, is the only quadrant presently zoned residential. The other three quadrants are zoned commercial. The northwest quadrant, which is directly across McCain Boulevard from appellant’s property, is the present construction site of the largest regional shopping center in the state. This mall contains more than 50 acres and is designed to serve a trading area of approximately 75 miles. The commercially zoned quadrant abuts a multi-family residential area. The commercially zoned northeast quadrant abuts a light industrial area separated only by the city limit boundary. The southeast quadrant, zoned for commercial use, abuts farm land outside the city limits. The subject property was incorporated into the city a few years ago and became classified as residential (R-l). Before the incorporation, its use was unrestricted. From May, 1967, until the end of 1968, the property was the site of a commercial sales business. It has never been used for residential purposes and is now vacant. There was evidence that a substantial population growth is projected in the surrounding area and that a feasibility survey reflects that market needs would justify the construction of this proposed community center as a supplemental commercial service facility to the regional shopping center located on the northwest quadrant.

It appears undisputed that the location of appellant’s property at the intersection of these two main traffic arteries and the existence of the commercial zoning of the other three quadrants render this property unsuitable for single family residential purposes as now zoned. In fact, one of appellees’ two expert witnesses testified that the property is “neither economically feasible nor environmentally desirable for low density residential development.” Appellees’ other expert witness agreed that the best use of appellant’s property would be commercial and, further, the "highest use, the most profitable,” would be a shopping center.

Appellant’s witnesses testified that no other area in this locality between North Little Rock and Jacksonville is as well situated from the standpoint of size and access to serving the shopping needs of the many thousands of persons who now and will eventually reside in this area.

The appellees, however, contend that there would be an adverse effect on adjacent property. The 22-acre tract abuts the rear of a residential area of which only seven lots join the subject property. Of the seven owners, only two appeared as witnesses. One was in favor of the proposed rezoning and the other protested. This appellee-protestant acquired his property in 1969. He admitted that he did not know whether the reclassification would affect the market value of his property. It was his personal preference that rezoning not be permitted because it would be less desirable to live on his property adjacent to the proposed shopping center. He was concerned about his property being properly shielded from the lighting which attends a shopping center. Other concerns voiced by this protestant were his objections to increased traffic and the normal nuisances that would result from any commercial enterprise as this proposed shopping center. One side of his property, also, borders upon a 40-acre school complex which existed when he bought the property. This educational facility accommodates 1,200 students. The grounds are lighted by four floodlights in the parking area. The school facility is in full view from his yard and a 4’ fence does not obstruct his view. He was aware that the three quadrants across from him were zoned commercial at the time he purchased his property. Only one of the eight other intervenors appeared and protested the proposed rezoning. He owned a residence in the vicinity and was of the opinion that the reclassification would devalue his property. He was unaware that a neighbor across the street had listed his property for sale at a $11,000 profit. In fact, one of appellees’ own expert witnesses agreed there would be no significant adverse effect on any other residential property beyond the seven abutting lots. The owners of the commercially zoned three quadrants did not appear and object to the rezoning. The North Little Rock School District which owns approximately 60% of the adjacent property to the rear of the 22-acre tract voted through its School Board not to oppose the rezoning application. This acquiescence was based upon appellant’s agreement to three conditions which appellant has agreed to fulfill.

Two aldermen testified for appellees. One alderman agreed the property was usable for the proposed shopping center and that he was familiar with the proposed development plan. However, he felt there was enough commercial property in this area to serve its inhabitants and he questioned whether this was the best use for the property. A different classification for business use would be better. He visualized complaints from residents about traffic conditions and garbage disposal problems which ordinarily attend supermarkets. The other alderman was, also, of the view that it would create traffic problems; that the shopping center wasn’t needed and the area should remain residential. Neither of these aldermen, however, expressed views that the adjacent property would be adversely affected.

Appellees presented two witnesses as experts in city planning. One witness with eight years experience in city planning and engineering was of the view that some adverse effect would exist based upon lights, noise from loading and unloading, and debris. He agreed that the lighting problem would be “minimal” and that he had made a study of the proposed plan. The noise factor was narrowed to the servicing of a Safeway Store on the property. He, also, admitted that the debris problem was minimized by the requirements of a city ordinance and terms of the lease which require the debris to be kept in closed containers inside the building. He agreed that the appropriate zoning classification should be for business purposes. The other expert witness in city planning was of the view that adjacent property owners would be adversely affected without adequate buffering; also, there was a lack of “needs of the market place” and compatibility of the proposed community shopping center in association with the "higher” regional shopping center across the thoroughfare. He admitted, however, that a community shopping center could be designed and placed adjacent to a residential area without adverse effect; that a discount store operation was desirable in a community or regional shopping center; and that the use of appellant’s property would be “better suited for a more intensive type of development.” He testified, ' as abstracted:

“In summary, there is going to be a need for additional community type shopping centers in this area under study, and the community shopping centers should be located to the confluence of your major arteries.”

Appellant presented as a witness the architect who designed the proposed shopping center. He has had many years experience in developing shopping centers and city planning. Appellee’s witnesses agree that he is highly respected and most capable of designing acceptable and desirable shopping centers so as to avoid any possibility of adverse effect to adjoining property owners. This architect designed the shopping center so that it provides for the equivalent of 1/2 to 2 lots or a distance of 75’ to 95’ as an open buffer between the rear property line of the seven adjoining lot owners and the rear of the proposed buildings to be constructed on the shopping center. The shopping center is designed so that it faces away from the rear of the adjacent property. Along the boundary line between the owners, the buffer strip will consist of an 8’ high fence; an additional BO’ natural green belted strip, which is presently wooded; also, the appellant would plant additional landscape. There would be a drop in the elevation of approximately 6’. With the 8’ fence and 6’ drop in elevation, the view from the residential area would be buffered by a height of approximately 14’. The height of the proposed one story buildings is 18’. It is approximately 200’ from the rear property lines of the seven adjacent lots to the front of the community shopping center stores. The city ordinance requires only a set-back minimum of 20’. The designer was of the view that it would be impossible for a person standing on the adjacent residential property to see the buildings of the proposed center. The only provision for any traffic to the rear of the buildings is a narrow passageway which would be used only for loading and unloading purposes.

The appellant presented other expert witnesses in support of its contention that the highest and best use of its property was for the proposed purpose and that it would not adversely affect any adjoining propeety owners.

Appellant’s evidence in summary is that the North Little Rock Planning Commission approved the request for rezoning; its Planning Director approved it and testified to that effect; two admittedly qualified real estate appraisers, two architects and city planners justified the rezoning; the manager of the North Little Rock Chamber of Commerce, who is a member and past president of the North Little Rock School Board, approved and supported the requested rezoning; the owner of-one of the seven adjacent residential lots favored the rezoning; the owners of the three quadrants at the intersection did not appear and interpose objections; the North Little Rock School District, which is the owner of 60% of the abutting property to the rear and five of the seven adjacent residential owners did not appear in opposition to the rezoning. In fact, only one of the adjacent residential lot owners appeared in opposition to the reclassification.

In Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W. 2d 706 (1966), we held that in rezoning cases “##*the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence.” Here, as there, we are of the view that the chancellor’s decree is against the preponderance of the evidence.

We established the rule many years ago in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), that “***any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” City of West Helena v. Rapheal G. Davidson et ux, 250 Ark. 257, 464 S.W. 2d 581 (1971), is to the same effect.

In the case at bar, we need not reiterate the evidence which we have detailed to the effect that appellant’s property is in the midst of an established commercial district and borders upon two intersecting 4-lane thoroughfares with a heavy traffic count. Further, this diamond shaped intersection was designed and constructed to accommodate heavy traffic. Also, it appears undisputed that the present classification for residential purposes is not suitable for this 22-acre tract. Neither does it appear from a preponderance of the evidence that the proposed rezoning would be detrimental to adjacent property owners.

Neither do we find any merit in appellees’ argument that the legislative action of the City Council was taken without any site development plan being presented to the Council. It is admitted that the City Council had before it for its consideration an ordinance to rezone the 22-acre tract from the single family residential to the proposed neighborhood shopping center classification (C-3). This in pertinent part provides:

“Primarily a planned shopping center, for the conduct of retail trade with emphasis on servicing a large segment of the community in surrounding residential areas.”

It appears that the aldermen were conversant with the proposed usage as was recommended by the City Planning Commission. There is undisputed evidence that the proposed development plan was shown to the city aldermen and discussed with them before the City Council meeting at which dme they voted upon the reclassification.

The appellant-owner was willing to execute a Bill of Assurance which would provide there would be no violation of any provision of the proposed development plan. Further, as requested by the North Little Rock School Board, there would be no eating establishments, such as drive-ins; no outlets selling alcoholic beverages; and a suitable fence or wall would be constructed on the line between the school property and the 22-acre tract. We have expressly approved a plan of development with a proffered Bill of Assurance. City of Little Rock v. Hocott, 220 Ark. 421, 247 S.W. 2d 1012 (1952). There we said:

“However, this does not mean that appellees may proceed with a construction project that is not in substantial conformance with the plan and bill of assurance which the City Planning Commission approved.”

Likewise, in the case at bar, we hold that appellant should be required to comply with its proposed restrictive use of the property.

Since we are of the view that the chancellor’s finding that the city was not arbitrary in its action is against the preponderance of the evidence, the decree is reversed and the cause remanded with directions to render a decree in accordance with this opinion, after appellant has filed a Bill of Assurance which guarantees the performance of all conditions agreed. to by it to assure that there be no violation of the proposed development plan and no violation of the conditions stipulated with the school district.

Reversed and remanded.