text:
    Olan Mills, Inc. v. Dodd.
    5-2568
    353 S. W. 2d 22
    Opinion delivered January 22, 1962.

      Robert G. Hunt, Chattanooga, Tennessee, and Tingling, Henry S Boyett, for appellant.

      Lightle $ Tedder, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an action brought by the appellee against the appellant for damages allegedly caused when appellant published and distributed appellee’s photograph without her knowledge or consent. Trial to a jury resulted in a verdict and judgment for the appellee in the amount of $2,500.00, and this appeal ensued.

The appellee, Mrs. Mary Dodd, is a housewife in Searcy, Arkansas. At one time she worked in a store with her husband, and later was associated with him in a local radio station. At all times here involved, the appellant, Olan Mills, Incorporated of Texas, was engaged in the business of photography. In 1957, Olan Mills had representatives in Searcy, and Mrs. Dodd had her picture taken for a stipulated price. She wanted the picture for her daughter; and when she received the picture the transaction was closed.

Some time in 1960, Olan Mills, without the knowledge or consent of Mrs. Dodd, caused 150,000 advertising post cards to be mailed over Arkansas and surrounding states; more than 5,000 of these cards were mailed to rural boxholders in White County, Arkansas; and each of these cards contained the picture of Mrs. Dodd. This use of her picture was a part of an advertising campaign put on by Olan Mills in order to obtain business; and, in addition to mailing the post cards, Olan Mills had enlargements of Mrs. Dodd’s picture carried by its door-to-door salesmen who were soliciting orders. The cards did not mention Mrs. Dodd’s name but merely carried her picture, implying an offer to make a picture of like kind and quality for anyone at an agreed price.

Mrs. Dodd first learned that her picture had been so distributed when a friend advised her. Later, she saw the card, and sued Olan Mills for damages. She testified: “I hadn’t given anybody permission to use my picture. It caused me a lot of humiliation and embarrassment. I have heard remarks on the street when I was passing, people saying, ‘I never thought Mrs. Dodd would permit her picture to be used for advertising,’ and things like that. I can’t go out on the street- — I am embarrassed. I have lost weight. I can’t sleep.” Later, one of the door-to-door salesmen for Olan Mills came to Mrs. Dodd’s house and exhibited her picture to her in his solicitation campaign.

The original answer of Olan Mills stated that (a) Mrs. Dodd had given her consent to the publication of the picture; and (b) in truth and in fact, it was not a picture of Mrs. Dodd but of someone else. Later, by-amended and substituted answer, it was admitted that Mrs. Dodd’s picture had been used without her knowledge and consent and as the result of a mistake. Trial of the case to the jury resulted in a unanimous verdict for $2,500.00 to Mrs. Dodd. The appellant urges two points on appeal: (a) only nominal damages can be recovered; and (b) the damages awarded are excessive. We will consider these points together.

So far as we can determine, this Court has never directly passed on a case like this, although in the two cases of Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746, 92 Ark. 81, 122 S. W. 115, there is dicta as to what is known in law as the ‘ ‘ right of privacy. ’ ’ While there is a dearth of case law in Arkansas on the point, there are cases, textbook writings, and law review articles elsewhere. In some jurisdictions, statutes have been passed guaranteeing the right of privacy, but in most of the jurisdictions the courts have recognized the right of relief in a case like the one at bar, independent of statute. In Restatement of the Law of Torts, Section 867, this matter is discussed under the topic, “Interference with Privacy,” and in stating that in some instances there may be recovery for the unauthorized publication of the photograph of a person who is not in public life, the Restatement uses this language:

“The rule stated in this Section gives protection to the interest which a person has in living with some privacy, but this protection is relative to the customs of the time and place and to the habits and occupation of the plaintiff. One who is not a recluse must expect the ordinary incidents of community life of which he is a part. These include comment upon his conduct, the more or less casual observation of his neighbors as to what he does upon his own land and the possibility that he may be photographed as a part of a street scene or a group of persons. Likewise if he submits himself or his work for public approval, as does a candidate for public office, a public official, an actor, an author or a stunt aviator, he must necessarily pay the price of even unwelcome publicity through reports upon his private life and photographic reproductions of himself and his family, unless these are defamatory or exceed the bounds of fair comment. One who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one unjustly charged with crime or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.”

It is unnecessary to develop in greater detail the nature of the cause of action; because our opinion herein is limited to the particular facts of this case and the extent of the damages here awarded. The appellant concedes that Mrs. Dodd is entitled to recover nominal damages but claims that the verdict for $2,500.00 is excessive; and cites us to some of the Arkansas cases which hold that there can be no recovery for mental anguish in the absence of accompanying physical injury. One such case so cited is C. R. I. & P. Ry. Co. v. Caple, 207 Ark. 52, 179 S. W. 2d 151. But in that case we said:

“Where the action is wanton or willful there may be a recovery for humiliation and mental suffering without any physical injury. Such cases are Erwin v. Milligan, 188 Ark. 658, 67 S. W. 2d 592; Rogers v. Williard, 144 Ark. 587, 223 S. W. 15, 11 A. L. R. 1115; Lyons v. Smith, 176 Ark. 728, 3 S. W. 2d 982.”

So we have recognized that in some instances there may be recovery for humiliation and mental suffering in the absence of any physical injury; and we hold that in an action like this one — for violation of the right of privacy — there may be such recovery, just as in cases of willful and wanton wrong. Other courts recognize there may be awarded substantial damages for violation of the right of privacy. Hinish v. Meier, 166 Or. 482, 113 Pac. 2d 438, 138 A. L. R. 1; Fairfield v. American Co., 138 Cal. App. 2d 82, 291 Pac. 2d 194; and cases there cited.

Olan Mills admitted that it was its custom to obtain the written consent of persons whose pictures were distributed, as was Mrs. Dodd’s in this case; but Olan Mills conceded that it neglected and failed to get such consent from Mrs. Dodd. Since Mrs. Dodd’s picture was published and circulated without her knowledge or consent, the jury was justified in finding from the evidence that the action of Olan Mills resulted in damage to Mrs. Dodd. She testified as to her humiliation, her embarrassment, mental anguish, loss of weight from worry, and lack of sleep; and we cannot say that the verdict, while liberal, is so grossly excessive as to shock the conscience; so the judgment is affirmed under the facts of this ease.

Affirmed.

       There is a case note in 3 Ark. L. Rev. 105, entitled, “Torts — Invasion of Privacy by Publication of a Photograph”; .and also there is a comment in 6 Ark. L. Rev. 459, entitled, “The Right of Privacy.” See also annotations entitled “Right of Privacy,” in 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R. 2d 750. The earliest law review article seems to be in 4 Harvard Law Review 193, “The Right to Privacy,” of which the late Justice Louis D. Brandéis was one of the authors. There is a later law review note in 43 Harvard Law Review 297. See also “Privacy”, in 41 Am. Jur. 923; and “Right of Privacy,” in 77 C.J.S. 396. See also the article, “Privacy,” by Dean William L. Prosser in 48 California Law Review 383.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Skelton Motor Co. v. Brown.
    5-2519
    353 S. W. 2d 1
    Opinion delivered January 22, 1962.

      Eugene F. Mooney, Jr., John H. Joyce, Charles Bass Trumbo and E. J. Ball, for appellant.

      Dickson, Putman & Millwee, for appellee.
   George Rose Smith, J.

This is a suit by Skelton Motor Company to collect the balance due upon a promissory note given by the appellees, H. E. and Hilda Brown, in part payment for a truck. On an earlier appeal we held the note to be free from usury. 231 Ark. 801, 332 S. W. 2d 607. Upon remand the single question submitted to the jury was whether a novation agreement had substituted Lois Baskin and his wife for the Browns as obligors upon the note. The jury’s verdict was for the Browns, and judgment was entered in their favor. Skelton contends that for several reasons the verdict is not supported by substantial competent evidence.

The facts are simple. In purchasing the truck on February 23, 1957, the Browns executed a conditional sales contract for part of the unpaid purchase price. This contract was later assigned by Skelton to Mack Trucks, Inc. For the rest of the purchase price the Browns executed the $3,222.08 monthly installment note now in dispute. On the same day Skelton, for value, transferred this note to the First State Bank by an indorsement reciting that the transfer was with recourse.

In the fall of 1957 Brown proposed to sell the truck to Baskin. In connection with that transaction Brown and Baskin met with Keith Skelton, president of the appellant company, on November 16. Brown testified, and the jury must have believed, that Keith Skelton then agreed to release the Browns from liability on the note and to look only to Baskin and his wife for payment. Later that day Brown and the Baskins went to the bank, where the Baskins indorsed on the back of the note an agreement to assume its payment.

The Baskins failed to pay the monthly installments. On February 7, 1958, the appellant paid the note in full and took a reassignment from the bank. Mack Trucks repossessed the vehicle and applied its value to the debt evidenced by the conditional sales contract. In September of 1958 the appellant filed this action against the Browns, seeking to recover the amount it had been required to pay the bank pursuant to its indorsement with recourse.

At the trial the appellant contended that Brown should not be permitted to testify that Keith Skelton orally released the Browns from liability. It is again insisted here that this testimony violated the parol evidence rule in that it added to or varied the assumption agreement that the Baskins indorsed on the back of the note later that day.

This argument is unsound. The Browns, in addition to being directly liable to the bank, were contingently responsible to the appellant if it should be required to make good its indorsement by paying off the note. It cannot be doubted that the Browns and the Skelton Motor Company had the power to extinguish this contingent liability by oral agreement, under the rule that the parties to a written contract may rescind it in part or in its entirety by a subsequent oral agreement. Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, 225 S. W. 624. Keith Skelton’s agreement to substitute the Baskins for the Browns was complete in itself and would have been valid even if the Baskins had not gone to the bank and assumed the Browns’ direct obligation on the note. Consequently it cannot be said that the parol novation agreement added to or varied the subsequent written notation on the note. The two transactions were so completely separate that neither affected the other.

This reasoning also answers the appellant’s contention that the novation agreement was ineffective as a matter of law, it being insisted that the Skelton Motor Company was without power to discharge the direct debt to the bank. The answer to this argument is that Skelton’s release of the Browns was valid in itself and did not purport to affect the contractual relationship between the Browns and the bank.

A third contention is that the appellant became a holder in due course under its reassignment from the bank and therefore holds the note free from any defense that would have been unavailable against the bank. In paying the bank the appellant would ordinarily have reacquired its former rights against the Browns, Ark. Stats. 1947, § 68-252, but those rights had already been extinguished by the novation agreement. In fact, that was the sole purpose of the novation as far as Brown was concerned, for he had no reason to ask Skelton for a release of liability except to guard against the situation that would arise if Skelton should be compelled to pay off the bank. We perceive no basis for saying that the release agreement was ineffective. According to the appellant’s present argument if Brown had actually paid to the appellant the full amount due on the note the appellant could have taken that money to the bank, used t to pay the note off, and then collected from Brown a second time by claiming to be a holder in due course. Such an argument is demonstrably untenable.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Holmes v. Cheney.
    5-2652
    352 S. W. 2d 943
    Opinion delivered January 22, 1962.

      D. D. Panich, for appellant.

      Prank Holt, Attorney General; Mehaffy, Smith and Williams by William J. Smith, Herschel H. Friday, Jr., and J ames E. Westbrook, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated by a taxpayer to test the constitutionality of Act 38 of the First Extraordinary Session of the 1961 Legislature. Said Act provides for the erection of a Revenue Department Building for the State. The trial court held the Act constitutional, and this appeal by the taxpayer follows.

Substance of the Act. The portions of the Act material to this litigation are as follows: Sections 2, 3, 4 and 5 create the “Arkansas Revenue Department Building Commission” (referred to as the “Commission”), composed of the Commissioner of Revenues, the Secretary of State and three members appointed by the Governor, and also provide per diem for attendance of meetings, and terms of office; Section 6 authorizes the Commission to select a site for the building on the Capitol grounds, to construct and equip the building, and to obtain the necessary funds therefor by the issuance of Revenue Bonds as thereafter provided, to house in the building the State Revenue Department and other state agencies, to rent available space, and to take such other action consistent with law to carry out the intent and purpose of the Act; Sections 10 and 11 declare all monies received from the charge of $1.00 for each motor vehicle certificate of title (as already provided by law) and all monies received from the collection of $5.00 for the recording of all leases (by the State) of oil, gas, gravel, coal, etc., (as provided by the Act) to be “cash funds” not to be deposited in the State Treasury but in the “Revenue Department Building Fund” created by the Act; Section 12 creates a Trust Fund to be known as the “Revenue Department Building Bond Fund” into which money shall be transferred from time to time (as provided in detail in the Act) from the Revenue Department Building Fund. The money placed in the Trust Fund is pledged and is to be used to retire principal and interest on the bonds later provided for in the Act. This Section further provides that from time to time (under restrictions specified) funds (in excess of what is needed) shall be transferred from the Trust Fund to the State Treasury, and further provides that when the bonds are retired all the money in the Trust Fund shall be transferred to the State Treasury; Section 13 authorizes the Commission to issue Revenue Bonds not to exceed $1,600,000 bearing not to exceed 4%% interest, and to be sold by the Commission pursuant to the detailed provisions set forth in the Act; Section 14 provides that said bonds shall be general obligations only of the Commission and “in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged”; Section 15 reiterates and emphasizes the provisions heretofore set forth, stating that the bonds are secured by a pledge of the gross revenues mentioned in Sections 10 and 11 and the rentals before mentioned, and declares said revenues to be cash funds; Section 16 authorizes the several officers, departments, agencies and commissions of the State to enter into rental agreements with the Commission for space in the building to be erected. The other sections of the Act deal with who can purchase the bonds, the details of constructing the building, and declare the Act shall be liberally construed and its provisions to be severable.

Appellant urges a reversal, contending: I. Funds in the State Treasury are, under Act 38, being paid out without an appropriation by the General Assembly contrary to the Constitution; II. Since Act 38 does not have the approval of the electors of the State it violates Amendment No. 20 of the Constitution; III. Act 38 constitutes a delegation of legislative power to the Commission and, therefore, violates Amendment No. 7 to the Constitution, and also Article 4, Sections 1 and 2 of the Constitution; and IY. Act 38 violates the Federal and State Constitutions in that the charges for the certificates are unequal and discriminatory.

We will now discuss the above mentioned contentions in numerical order without repeating the same in full.

I. Appellant quotes Article 5, § 29 and Article 16, § 12 which, in substance, provide that no money shall be drawn from the State Treasury except by appropriation, and then for only a two-year period. He then points out that under Act 38 the Commission is authorized to use the accumulation of funds to retire the bonds sans an appropriation by the legislature during the life of the bonds — 20 years. In making this contention appellant overlooks the fact that the above sections of the Constitution refer to money in the State Treasury, and also the further fact that the funds provided in Act 38 never at any time reach the State Treasury. This being true there is no constitutional requirement that the funds in Act 38 be appropriated. See: Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428.

However, in this same connection, appellant contends that the funds in this case should, and must, be placed in the State Treasury since they amount to a tax, and that calling them “cash funds” is of no avail. This latter contention has also been resolved against appellant by the two above mentioned decisions of this court. To make this point clear it is in order to compare briefly the case under consideration with the said two decisions.

In the Gipson case the so-called “cash funds” were “derived from such sources as students’ fees, sale of farm produce, dormitory charges, etc.” in connection with the operation of the State University and the State Colleges. As stated in that case “The question is, whether the Constitution of Arkansas requires that all such cash funds be deposited into the State Treasury”. It was held that such funds need not be so deposited. Appellant says, however, there is a clear distinction between the nature of the funds in the Gipson case and the funds involved here, but he does not, we think, explain such distinction, and we see none that is vital to the issue. If, however, there be any lingering doubt about such distinction it was erased completely, against appellant, in the McArthur case previously cited. In that case which upheld Act 375 of 1955 providing for the Justice Building, the funds involved were unquestionably comparable to the funds involved in Act 38. Said Act 375 “taxed” as costs $1.00 in each circuit, chancery, and probate civil case and the same amount for each conviction in criminal cases, while Act 38 funds are derived from $1.00 paid for each certificate of title to a motor vehicle and from the recording of State leases. Also, under both Acts, rentals from the proposed buildings comprised a part of the funds.

It is our opinion therefore that all of appellant’s objections under this point have been successfully met by the decisions in the Gipson case and the McArthur case.

II. ¥e find no merit in appellant’s contention that Act 38 violates Amendment No. 20 to the Constitution of Arkansas. This Amendment, in substance and in all material parts, prohibits the issuance of any bonds pledging the full faith and credit of the State except when authorized by a vote of the qualified electors. Act 38 specifically provides that the bonds issuable by the Commission will not be supported or guaranteed by the full faith and credit of the State, and further provides that they can be paid only from the special funds heretofore described.

III. Neither do we find any merit in appellant’s contention that Act 38 delegates legislative powers to the Commission contrary to Article 4 §§ 1 and 2 or to Amendment No. 7 to the Constitution. Sections 1 and 2 provide for three distinct departments of government and specify that neither shall exercise power belonging to the other. Amendment No. 7 is the “Initiative and Referendum” amendment which supersedes Article 5, § 1 of the Constitution and contains nothing to add support to appellant’s contention here. This identical contention by appellant here was made in the McArthur case, supra. What the Court said in that case, in rejecting the contention, is also applicable and decisive here: sions may be set forth with power given to those who are to act under snch general provisions to complete the details. See, among other cases, Fort Smith v. Roberts, 177 Ark. 821, 9 S. W. 2d 75; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 980; Currin v. Wallace, 306 U. S. 1, 59 S. Ct. 379, 83 L. Ed. 441.” A careful examination of the authority granted the Commission by Act 38 reveals that it is empowered to perform only such ministerial acts as are required to effectuate the overall purpose of the legislature. It would be absurd to say that the Constitution requires the legislative body to perform in detail every ministerial act necessary to the functioning of every commission it creates.

“It is well settled that legislative bodies have no right to delegate the lawmaking power to commissions and boards established by the legislature, but it is equally well settled that the legislature may delegate the power to determine facts upon which the law makes or intends to make its own action depend and that general provi-

Finally, appellant contends that the charge for certificates of title is unequal and discriminatory in violation of the Federal and State Constitutions. That part of the State Constitution referred to is Article 16 § 5 which reads in part:

“All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.” Appellant’s principal contention in this connection appears to be based on the assumption that the charge is a tax instead of a fee. In our opinion the assumption is erroneous and therefore his contention is without merit.

In two early decisions this Court had occasion to consider and settle this same question. In Lee County v. Abrahams, 34 Ark. 166, this Court held that a levy of 50 cents “on each original writ and execution issued out of any of the courts of the state. . . . ” was not a tax within the meaning of the Constitution which requires all property tax to be levied ad valorem. Likewise, in the case of Murphy v. The State, 38 Ark. 514, it was held that a tax of $3.00 imposed on each criminal conviction was not a tax within the meaning of the Constitution. In both cases the Court said the levy was a fee to the public and not a tax. For other decisions to the same effect see: Texas Co. v. Brown, 258 U. S. 466, 42 Sup. Ct.1 375, 66 L. Ed. 721 and Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713. In support of appellant’s contention that the charge of a $1.00 fee is in violation of Article 16, § 5 he relies on Featherstone v. Norman, 170 Ga. 370, 153 S. E. 58; Eager v. Walker, 128 Ky. 1, 107 S. W. 254; and Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892. We have carefully examined these decisions and find they are not in point or decisive of the question here presented.

We see no merit in appellant’s further arguments to the effect that the charge of $1.00 is shown to be a tax because it is not optional but forced, because it is not intended to reimburse the State for services rendered. Conceding, without holding, the above named assertions are indicative that the charge is a tax, we do not think the assertions are true in this case. Certainly it cannot be said that everyone is forced to own a motor vehicle. The legislature found and common sense indicates that the Eevenue Department does render a valuable service, that it needs the housing facility, and the State must be paid for that service. Also, appellant is apparently overlooking the fact that Act 38 does not create the $1.00 charge in question, and likewise the fact that the Act which did create the charge is not under attack in this litigation.

From all the above it is our opinion that said Act 38 is constitutional and that the trial court was, therefore, correct in sustaining the demurrer to appellant’s complaint. Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Skaggs v. State.
    5031
    353 S. W. 2d 3
    Opinion delivered January 22, 1962.

      W. M. Herndon and Floyd Terral, for appellant.

      Frank Holt, Attorney General, by 8am H. Boyce, Asst. Attorney General, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a conviction of the crime of unlawfully fondling a child in violation of Ark. Stat. § 41-1128.

The first point on appeal is the contention that the court erred in permitting the defendant to be cross-examined about having been convicted of an assault upon one Yirginia Denton. On cross-examination the State’s attorney propounded to the defendant the following questions:

‘' Q. Have you ever been convicted of a crime ?
“A. I paid a fine for a simple assault.
‘ ‘ Q. I would like to ask you if on or about September 23rd if you didn’t pay a fine for assaulting Virginia 'Denton?”

Over defendant’s objection and exceptions he was required to answer the question, and he answered "Yes.”

In support of the argument on this point, appellant cites two cases, but neither is applicable. Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838. In each of these cases it was held that the court erred in admitting independent testimony introduced by the State to prove similar crimes to those for which the defendants were then on trial.

But in the case at bar that situation does not exist at all. Here the defendant took the stand as a witness in his own behalf. When he did so he became subject to cross-examination the same as any other witness. In Jutson and Winters v. State, 213 Ark. 193, 209 S. W. 2d 681, in referring to the cross-examination of the defendant the Court quoted from Ware v. State, 91 Ark. 555, 121 S. W. 927: " 'As a -witness in the cause he could have been cross-examined; and upon his cross-examination, like any other witness, he could have been asked as to specific acts for the purpose of discrediting his testimony as a witness.’ ”

In Sullivan v. State, 171 Ark. 768, 286 S. W. 939, the Court said: "This court has adopted the rule that witnesses, including the accused, may be impeached on cross-examination by drawing out the fact that they have committed other crimes and immoralities of various kinds” [citing numerous cases]. Not only did the State have the right to ask the defendant on cross-examination about an assault made on another person but had the right to ask him about the particular person assaulted. The defendant could be guilty of more moral turpitude in making an assault upon a female than for assaulting a big strong man. Of course, if he had cared to do so, appellant would have been permitted to make a full explanation of the assault.

The appellant next argues that the trial court erred in giving instruction No. 6 requested by the State. The instruction is as follows: “You are instructed that no corroboration of the testimony offered by the prosecuting witness is necessary, but that the testimony of Marlene Bailey alone, if believed by the jury, and if it convinces the jury beyond a reasonable doubt of the defendant’s guilt, it is sufficient to sustain a conviction.”

Article 7, § 23 of the Constitution of Arkansas provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law. . . .”

In Mitchell v. State, 125 Ark. 260, 188 S. W. 805, the Court said: “Instructions by the court pointing out certain evidence and telling the jury that such evidence is sufficient to convict are instructions upon the weight of the evidence and are inhibited by our Constitution. Const., Art. 7, § 23.”

No Arkansas case has been called to our attention approving an instruction such as instruction No. 6 given in the case at bar. Some courts in other jurisdictions, however, have approved similar instructions given in rape cases. We might add that if the instruction is proper in a rape case, it would be proper in the case at bar, because in neither case does the prosecutrix have to be corroborated and in many instances the testimony of the prosecutrix would be the only evidence available. In State v. Richardson, 154 P. 2d 224, the court pointed out that in a rape case the defendant could be convicted on the uncorroborated testimony of the prosecutrix and this was all the court told the jury along that line. But the court points out that the instruction did not tell the jury that the prosecutrix’s testimony alone was sufficient to convict. Here the court did tell the jury by instruction No. 6 that the prosecutrix’s testimony alone was sufficient to sustain a conviction. A similar instruction was also given in People v. McMillan, 212 P. 38. The court did not discuss the point other than to emphasize that no corroboration of the prosecutrix was needed. The instruction was also approved in People v. Liggett, 123 P. 225; State v. Patchett, 79 P. 479; and State v. Orth, 165 P. 652. On the other hand, several courts have disapproved the instruction.

In State v. Schilnsky, 143 S. E. 307, the judgment of conviction was reversed because of the giving of the instruction. The court said that “while this may be an abstract statement of the law, it is incomplete as an instruction to the jury.” In Laycock v. People, 182 P. 880, the judgment was reversed because of the giving of the instruction.

It appears that the giving of an instruction telling the jury that the testimony of the prosecutrix alone is sufficient to convict grew out of the practice of giving a cautionary instruction where there was no evidence to prove the defendant’s guilt except the testimony of one witness, usually the alleged victim in a rape case, such as an instruction that “the charge of rape against a person is easy to make, difficult to prove, and more difficult to disprove” and cautioning the jury on that account to compare and weigh all of the testimony carefully and deliberately without bias.

This Court said in Shank v. State, 189 Ark. 243, 72 S. W. 2d 519: “The credibility of particular witnesses and the weight to be given their testimony should not be emphasized in separate instructions.” An instruction of that kind coming from the court places undue emphasis on such testimony and amounts to a charge to the jury with regard to a matter of fact in violation of Article 7, § 23 of the Constitution.

The weight of the evidence is a matter to be argued by counsel and the weakness or strength of a party’s case should not be called to the jury’s attention by an instruction from the court. We conclude, therefore, that the giving of instruction No. 6 on behalf of the State was an error for which the cause must be reversed and remanded. It is so ordered.


author: Neill Bohlinger, Associate Justice.

text:
    Bounds v. Dunn.
    5-2578
    353 S. W. 2d 20
    Opinion delivered January 22, 1962.

      Harold L. Hall, for appellant.

      Byron Goodson and Gordon B. Carlton, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant and appellee were formerly husband and wife and are the parents of two children, Debra and Bichard Kent Dunn. In 1959 the appellee filed suit for divorce from the appellant in the Sevier Chancery Court where he was awarded a decree of divorce with custody of the two minor children, the eldest of which is six years of age and the younger one four years old.

The portion of the decree placing the custody of the children in the appellee provided that the children should be maintained in the home of appellee’s brother and sister-in-law, Mr. and Mrs. Durden Dunn of DeQueen, Arkansas. They have been and are now being maintained there at the expense of the appellee.

The appellant filed a petition in the Sevier Chancery Court requesting a modification of that part of the decree awarding custody of the children.

The record in this case reflects that the home provided for the children is in the neighborhood of the appellee’s parents and that appellee resides about 200 yards from his brother’s home where the children are maintained and that his work is such that he is enabled to spend a part of each morning with them. There is no complaint made that they are not comfortably housed and it appears that they are enjoying a wholesome life with religious training and that the proper educational facilities will be accorded them as they become old enough to attend school.

To change this condition, the appellant alleges that since her divorce from the appellee she has remarried to Mr. William Bounds who is the father of four children by his divorced wife and that he, in his divorce decree, was awarded the custody of these children. The appellant further testified that she now resides in Little Bock where she and her present husband are gainfully employed and that they have a two-bedroom apartment with kitchen, bath and living room and that she and her present husband contemplate at sometime in the future acquiring a larger house.

In 17A Am. Jur., Divorce and Separation, § 838, p. 32, it is succinctly stated that:

“A party seeking modification of a divorce decree provision for custody of a child on the ground of changed conditions bears the burden of proof of changed conditions warranting a modification in the interest of the child. The evidence which was considered in the original proceedings is proper matter for consideration on an application for modification, so that the court can see what was formerly adjudged and determine whether a substantial change of circumstances has since occurred. ’ ’

The burden then being upon the appellant, the chancellor was required to weigh the original decree awarding the custody of the children with the prospects that are offered in appellant’s presentation in behalf of her petition.

In Meyers v. Meyers, 207 Ark. 169, 179 S. W. 2d 865, this court said:

“We do not have before us the testimony in the original proceeding upon which the chancellor awarded the custody of the child to the father. We must assume that the chancellor’s findings were correct and fully supported by the testimony, especially so since there was no appeal from the decree thus fixing the custody of the child. Patterson v. Cooper, 163 Ark. 361, 258 S. W. 988. The original decree awarding custody of the child to the father was an adjudication that at the time of the rendition thereof, the father and not the mother was the proper person to have the care, custody and control of the infant. While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decrees affecting custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer of custody from one parent to the other. Weatherford [sic Weatherton] v. Taylor, 124 Ark. 579, 187 S. W. 450, Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Stone v. Crofton, 156 Ark. 323, 245 S. W. 827; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817.”

While the court might review conditions obtaining when the original order was made, we do not find it necessary to go beyond the matters arising since the entry of the divorce decree. The main fact upon which appellant predicates her petition is the fact that she has since remarried to a man with four children of his own, with the joint earnings of the couple being sufficient to maintain the husband and wife and the six children. We find nothing that would convince the chancellor that provision is made for the care of the six-year-old girl and four-year-old boy while their mother and stepfather are absent from the home and at their places of employment and we note an absence of proof that religious training and educational advantages have been planned or contemplated by the appellant. The main points in appellant’s plea are that she has remarried and she wants her children. We feel sure that the chancellor weighed that portion of her plea in the light of the fact that while she had visitation privileges, as long a period as seven months passed without her visiting her children.

In these matters the desire of the parent for the child, which is a natural emotion, is secondary. Children of tender ages are but helpless hostages given to fortune in an environment or condition which is not of their making and in which they would be helpless indeed were it not for the conscience of Chancery.

The chancellor denied the petition for change of custody and in that we think he is amply supported by the facts reflected by this record. His decree is, therefore, in all things affirmed.


author: Carleton Harris, Chief Justice.

text:
    Decker v. State.
    5020
    353 S. W. 2d 168
    Opinion delivered January 29, 1962.

      Van Chapman and Jack Holt, for appellant.

      Frank Holt, Attorney General, by Jack Lessenberry, Asst. Attorney General, for appellee.
   Carleton Harris, Chief Justice.

William Eugene Decker was charged with first degree murder, the Information alleging that appellant murdered his wife, Nettie Jean Decker, on September 7, 1960. On trial, Decker was convicted of second degree murder, and sentenced to ten years imprisonment. From the judgment so entered, comes this appeal. In urging a reversal, appellant relies upon four points, which we proceed to discuss, though not in the order listed in appellant’s brief. It is contended that the evidence was not sufficient to sustain a conviction of second degree murder, but we do not agree. Proof on the part of the State reflected that a man, identifying himself as Decker, telephoned Gale Williams, deputy coroner, on the day of the killing, and informed Williams that he (Decker) had just shot his wife. The-caller gave the location of his home, and the coroner' went to the premises. He found a young white woman-dead, and noted several gunshot wounds. His report reflected that she died of multiple gunshot wounds. Horace Wilson, a witness, who was not acquainted with either Decker or his wife, testified that he was in his potato patch, picking up sweet potatoes, when he noticed a cattle truck pass, which was being driven rather rapidly. The truck stopped at the Decker home, and a man went into the house. Soon, he came back out of the house, and appeared to be setting something down on the porch. The person then went to the truck, and thence back into the house. Shortly, Wilson heard three shots, and after a few minutes, two more shots. The man went out of the house, got in the truck, and drove away. Clifford Taylor, who operates a grocery store at Judsonia, testified that he had known Mr. and Mrs. Decker for about two months, and they were customers at his store; that the store was located about three hundred yards from the Decker home. He stated that about 3:15 in the afternoon, Decker came into his store, and said, “Call the ambulance and the sheriff. I have shot my wife.”; that Decker had a gun, and gave it to Taylor at the latter’s request. Decker called the sheriff, and told the witness, “If you will give me my gun, I’ll go back and wait for the sheriff.’’ Taylor returned the pistol, and Decker left the store. Bill Bogle, deputy sheriff, testified that he went to the Decker home, together with Pulley Bailey, Judsonia marshal. “I found Bill Decker sitting on a couch across from his wife. She was in a rocking chair, dead. He was sitting on a couch with a pistol by his side.” A three or four year old child, crying, was present. An examination of the premises disclosed a trail of blood from the back kitchen door to the bedroom, and blood was there found around a rocking chair, a dresser, and under the bed. Bloodstains were also found on the curtain which separated the two rooms. Six or seven empty cartridges were located, and two lead slugs were taken out of the wall. The gun used was a .22 caliber pistol, mounted on a .45 caliber frame. The child was taken to relatives in Bald Knob, and Decker was taken into custody. Subsequently, on rebuttal, Mrs. Carl Scott, a resident of McRae, testified that she saw Decker on the day he killed his wife, at “Dollie’s Place”, where he drank two bottles of beer; that Decker told her his wife had sued him for divorce, and he was under a restraining order not to go around her, but he was going to the home to see his children, and would shoot his wife if he had to. The evidence was sufficient to sustain the conviction for second degree murder, without the rebuttal testimony. See Section 41-2246, Ark. Stats. Also, Wooten v. State, 220 Ark. 755, 249 S. W. 2d 968, and Band v. State, 232 Ark. 909, 341 S. W. 2d 9.

Appellant asserts that the trial court erred by permitting the prosecuting attorney to cross-examine appellant relative to statements which Decker had given to officers on the day of the shooting. It is contended that while no confession, as such, was introduced against appellant, questions asked relative to statements previously given should be placed in that category, and no proper foundation had been laid for the admission of a confession. Of course, a defendant in a criminal case who elects to testify is subject to impeachment like any other witness, and the purpose of the questioning was to establish that Decker had earlier made contradictory statements as to the circumstances of the killing. In Brown v. State, 231 Ark. 363, 329 S. W. 2d 521, the same contention was made. We held, quoting from earlier cases, Black v. State, 215 Ark. 618, 222 S. W. 2d 816, and Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917, that there was no error in permitting the State to show the prior inconsistent statements. In the Hamm case, this Court said:

“Appellant was questioned by the Prosecuting Attorney after his arrest, and his answers were taken down by the Prosecuting Attorney’s stenographer. * * * The stenographer was called to read her notes in contradiction of the testimony given by appellant at the trial. It is permissible always to impeach the testimony of a witness by showing that he had previously made statements in conflict with his testimony.”

Accordingly, this was not error.

For his third contention, appellant says that the court erred in refusing to give his requested instructions No. 3 and No. 4. We cannot consider the contention, for this matter was not noted as an assignment of error in the motion for new trial. It is well settled in this state that error cannot be predicated on the rulings of the trial court which were not assigned as erroneous in the defendant’s motion for new trial. Franklin v. State, 153 Ark. 536, 240 S. W. 708, Poe v. State, 168 Ark. 167, 269 S. W. 355.

Finally, it is contended that the court erred in excluding competent testimony on behalf of appellant. This assignment referred to the proffered testimony of witness Lewis Western before the court in chambers. There, counsel for appellant stated that Western, if permitted to testify, would state that on Monday afternoon, September 5th (two days before the shooting), he and his brother went with Mrs. Decker and a girl friend of Mrs. Decker’s to the home of appellant and deceased, and while there, “Something was said about what would happen if Bill, the deceased’s husband, happened to come in now.” If permitted to testify, the witness would state that the deceased stated that, “ ‘If he comes in, I will shoot hell out of him.’ ” The court refused to permit the testimony. It is admitted that the threat was not communicated to Decker. Under the particular circumstances of this case, we do not think error was committed. Of course, it is well settled that a communicated threat by the victim against the accused is admissible to explain the conduct, or show motive of the accused, when self-defense is relied upon, or an overt demonstration of violence on the part of the victim is present. Lee v. State, 72 Ark. 436, 8 S. W. 385.

It is likewise true, that where the defendant relies upon self-defense, uncommunicated threats are admissible where there is doubt as to who was the aggressor, but this evidence is admissible solely for the purpose of bearing on this question. See Parsley v. State, 151 Ark. 246, 235 S. W. 797, and Bell v. State, 69 Ark. 148, 61 S. W. 918, Lee v. State, supra.

The testimony relied upon by appellant as placing-in issue the theory of self-defense is as follows:

“A. I went in the front door, the other doors were •closed, and the air conditioner and the television was going and I walked in and my wife and Fred Davis, were lying or sitting on the bed and he jumped up and run out the back door and I started to see who it was and she grabbed me and blocked the door and I slapped her and she grabbed the gun and I tried to take it away from her.
Q. Where was the gun?
A. On the kitchen table.
Q. At the time she grabbed the gun did she make any statement to you?
A. I said, ‘Who was that?’ and she said, ‘None of your damned business.’
Q. That is what she said about this man?
A. Yes, sir.
Q. Did she say anything when she picked the gun up about what she was going to do to you?
A. Yes, sir, she said she would shoot me and I was trying to take the gun away from her.
Q. Did you ever at any time take the gun away from her and intentionally shoot?
A. No, sir, I did not.
Q. How do you account for the fact that she was shot?
A. I don’t know only just in the scuffle.”

Further:

“Q. At the time your wife grabbed the gun off of the — -was it the dresser in the kitchen?
A. No, it was a table.
Q. At that particular time were you doing anything at all, or attempting to do anything to her or offer any physical violence to her?
A. No, sir, I was not.
Q. At the time she grabbed it and said, among-other things, that she was going to shoot you, when you reached her and wrestled with her, state whether or not. Avhat you did you did it with —
Mr. Henry: He is leading the witness again. I object.
The Court: Yes, sir, the objection is sustained.
Q. Why did you do, when she got the pistol, why did you do what you did?
A. Because I was afraid she would shoot me and shoot the kids too.
Q. In other words, if she shot you she would shoot the children too?
A. That is what I was afraid of, yes, sir.”

The transcript reflects still further:

Q. You say she tried to get between you and bim and he ran out the back door?

A. Yes, sir.

Q. You say you asked her who it was?

A. I asked her who it was and what was he doing there, or something, I don’t remember just what I did say.

Q. I understood you to say awhile ago that you asked her who that was and what he was doing there and she said, ‘None of your damned business.’

A. I asked her who it was and what he was doing there and she said, 'It is none of your damned business.’

Q. Then she grabbed up the gun?

A. After I shoved her.

Q. Where did you shove her, which direction?

I shoved her backwards and she went back against the table.”

Subsequently he was asked the question, “Did you ever get the gun in your hands?”, and answered, “I don’t know. ’ ’

In the average case of self-defense, both parties generally have a weapon, or it is contended that because of greater physical strength on the part of the deceased, the defendant was forced to use a weapon to protect himself from great bodily harm. Here, there is only the one weapon, and appellant testified that he did not know whether he ever obtained possession of the pistol; that he did not intentionally shoot his wife. Of course, if he obtained possession, there was no necessity to shoot her, for she was then unarmed. But if otherwise, we do not feel that appellant’s testimony was such as to render the proffered proof of the uncommunicated threat admissible. It is apparent that his testimony itself is not completely consistent with the defense claimed, for it varies all the way from the contention that he shot her because he was afraid that she would kill him, and the children, to a claim that the killing was more or less an accident, occurring in the scuffle over the gun. The record also reflects that Decker, upon being arrested, told officers that his wife was trying to commit suicide, and in scuffling with her and endeavoring to take the gun away from her, the pistol discharged and killed his spouse.

Let us keep in mind that the evidence excluded is only admissible as tending to show the probable aggressor — the person who committed the first act of aggression. It appears from appellant’s testimony that Mrs. Decker only picked np the pistol after she was slapped and shoved against the table by her husband. In addition, the record reflects that appellant was under a court restraining order to stay away from his wife, children, and the house in which Mrs. Decker was living. In the face, and in defiance, of this order, he went to the home, and the killing occurred. It is also somewhat difficult to understand the statement that he was afraid ‘ ‘ she would shoot me and shoot the kids, too.” Only one child was present at the time of the killing, so this remark could have no reference to a fear of immediate danger at the time of the shooting. A belief that she might, at some time in the future, act in accordance with his statement, would, of course, have no bearing on the question of self-defense.

We find no error in the court’s refusal to admit the testimony of Lewis Western.

Affirmed.

       An interesting article is found in Ark. L. Rev., Vol. 5 (1950-51), p. 207, by Bob Hogan, entitled, “Evidence of Uncommunicated Threats in Excusable Homicide Cases.” This article traces the development of the law in this state on the stated subject.

       The pistol was fired six or seven times, and several bullets entered Mrs. Decker’s body. It is not entirely clear from the record whether she was struck three, or five, times.


author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

text:
    Miles v. Gordon.
    5-2651
    353 S. W. 2d 157
    Opinion delivered January 29, 1962.

      Nance <& Nance, for appellant.

      Frank Holt, Attorney General; Mehaffy, Smith S Williams, by W. J. Smith, Herschel H. Friday, Jr., and James E. Westbrook, for appellee.
   Carleton Harris, Chief Justice.

Maxine Miles, appellant herein, is a citizen, resident, and taxpayer of the city of West Memphis, and owns real and personal property therein. Appellees are the qualified and acting members of the State Reserve Fund Commission. The interveners are the Boards of Trustees of the University and state supported colleges. Appellant, proceeding as a taxpayer, instituted suit in the Chancery Court of Pulaski County, seeking a declaratory decree holding Act 65 of 1961 unconstitutional, and further asking an injunction to prohibit appellees from complying with, or in any manner carrying out, the provisions of said act. The court sustained a demurrer to the complaint and, after appellant declined to plead further, entered a decree dismissing the complaint. From such decree, comes this appeal.

The First Extraordinary Session of the 1961 General Assembly passed Act 65 as a means of financing construction at the various state institutions heretofore mentioned. This legislation was occasioned by the fact that several million dollars are being held in the permanent operating reserve fund (a part of the revenue stabilization reserve fund), and tbe legislature desired that sucb fund should be used for tbe construction. Tbe money-in tbis fund bas been used to implement a policy of preserving an even flow of moneys to tbe various state agencies. Act 65 was passed as a means to use tbe money, and at tbe same time, maintain tbe advantages of tbe even flow. Tbe act establishes tbe State Reserve Fund Commission and authorizes that Commission to borrow money and issue Certificates of Indebtedness to evidence its debt. Tbe money is to be borrowed from tbe State, acting through tbe State Board of Finance, which bas been investing tbe daily balances of tbe State since tbe approval of tbis practice by tbis Court in 1939. Tbe borrowed money will be repaid with tbe interest received from tbe investment of state funds by tbe State Board of Finance. Tbis interest will be placed into a special fund and pledged to tbe payment of tbe certificates, and is to be tbe sole source from which payment may be made. Tbe money obtained by tbe issuance of tbe certificates will be turned over to tbe chief fiscal officer of the State for use in preserving an even flow of money to tbe various recipients of state funds.

Appellant contends that Act 65 is unconstitutional, and in seeking a reversal of tbe Chancery decree, asserts four points, which we proceed to discuss in tbe order listed in appellant’s brief.

“I.

Act 65 of 1961 Provides for tbe Withdrawal of Funds from tbe State Treasury in tbe Absence of Specific Appropriations and Thus is Contrary to Article 5, Section 29 and Article 16, Section 12 of tbe Arkansas Constitution. ’ ’

Article 5, Section 29, of our State Constitution provides, inter alia, that no money shall be drawn from the Treasury except in pursuance of specific appropriation made by law, and no appropriation shall be for a longer period than two years. Article 16, Section 12, has substantially the same requirement. Under the provisions of Section 8 of Act 65, the interest derived from the investment of daily balances of state funds is pledged to the payment of certificates of indebtedness to be issued by the Reserve Fund Commission, and the certificates are to mature fifteen years from the date of the first certificate issued. Appellant points out that this interest is pledged rather than appropriated, and is pledged for a period of fifteen years, thirteen years, according to her contention, in excess of the maximum period for which an appropriation may be made. Appellant recognizes that this Court has previously held that all public money does not have to be paid into the State Treasury. In Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, we held, “There is no language in our present Constitution which requires that all of the public money shall be paid into the State Treasury. Such a provision exists in the constitutions of some states, but not in our present Constitution.” One of the questions in that case was whether the Constitution required that “cash funds” be deposited in the State Treasury. This Court defined “cash funds” as “those received by the state agencies and institutions from sources other than taxes, as the term ‘taxes’ is ordinarily used”, and declared that the Legislature was empowered to determine whether the State Treasurer should be required to receive all state funds. But, says appellant, the interest here in question is not embraced within the term “cash funds”; rather, since it is interest on tax money, the interest itself falls within the category of tax money. The case of Pomona City School District v. Payne, 9 Cal. 510, 501 P. 2d 822, wherein it was held that the County of Los Angeles could not keep the interest obtained through the investment of school district funds on deposit in the county treasury, is cited. The Court there stated that interest is an accretion or increment to the principal fnnd earning it, and becomes a part thereof. In that very case, however, the California Conrt limited this generally recognized concept of law by stating that interest is an accretion to the principal fund earning it, and becomes a part thereof “unless lawfully separated therefrom.” The Court said, “In fact, the rule of law would control that the right of depositors to their interest increments could not be taken away without direct statutory authority to that effect.” We concur with that statement of the law. Here, we think it immaterial how the interest may be designated, be it “cash funds”, or by some other name. The pertinent questions are whether the General Assembly had the authority to determine whether certain funds shall be paid into the State Treasury; whether the Legislature likewise had the authority to lawfully separate the interest in question from the invested tax funds that produced it, and whether the interest must be classified as “taxes.”

It is apparent from a study of the decision rendered in Gipson v. Ingram, supra, that the Court’s conclusions were based on the holding that the Legislature had the authority to determine whether certain designated funds should be paid into the State Treasury. We are likewise of the opinion that the Legislature is not prohibited by our Constitution from separating the interest from the principal and pledging it, as in Act 65. For that matter, taxes and interest are not the same. Taxes are enforced contributions exacted pursuant to statutory authority, while interest is the price paid by a borrower for the use of what he borrows, generally a percentage on the principal amount. We hold that interest, when separated from the principal by legislative enactment, is not “taxes”, as the term is ordinarily used, and there is no requirement that this interest be deposited in the State Treasury; this being true, there is no necessity for the biennial appropriation.

Appellant devotes several paragraphs to possible abuses that might arise where independent state commissions are entrusted with public moneys, and over which the Legislature exercises no control with regard to the expenditure of the funds. However, in determining constitutionality of acts, we are not permitted to pass upon the wisdom of the legislation. This is the prerogative of the Legislature. As was stated in Atkins v. Kansas, 191 U. S. 207:

“So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people’s representatives. ’ ’

“II.

Act 65 Provides for the Issuance of Certificates of Indebtedness to Which Revenues of the State are Pledged Without Approval by the Electors of the State and is Therefore Contrary to Article 16, Section 1 as Amended by Amendment No. 13, and Amendment 20 to the Arkansas Constitution.”

Article 16, Section 1, of the Arkansas Constitution provides, inter alia, that the state shall not lend its credit for any purpose whatever. The answer to that argument is simply that Act 65 does not call for the State to lend its credit. The obligation arising under Act 65 is solely that of the Reserve Fund Commission. In Brown v. The Arkansas Centennial Commission, 194 Ark. 479, 107 S. W. 2d 537, the same contention was made in an attack upon Act 180 of 1935. This Court, after citing language of the Act to the effect that no bond, note, or other evidence of indebtedness issued under the Act or created by the Commission should be held or construed as an obligation of the State of Arkansas, stated:

“It is plainly manifest from this language that the bonds to be issued are not obligations of the State, but ‘shall be solely and exclusively the obligations of the Commission in its corporate and representative capacity. ’ This language is too plain to be misunderstood and is not open to construction. So the State is not lending its credit and it is not issuing any interest-bearing treasury warrants or script, and the provisions of said section of the Constitution are not invaded.”

Amendment No. 20 to the Arkansas Constitution provides in part:

“Except for the purpose of refunding the outstanding indebtedness of the state and for assuming and refunding valid outstanding road improvement district bonds, the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State voting on the question at a general election or at a special election called for that purpose.”

Appellant contends that Act 65 violates this constitutional prohibition, asserting that state revenues are pledged without the consent of the qualified electors. We do not agree. This argument is rendered ineffective because of our holdings in Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, Jacobs v. Sharp, 211 Ark. 865, 302 S. W. 2d 964, and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 429. In the first case, we upheld the issuance of bonds by the State Board of Education, to be secured by school district bonds delivered to the State Board of Education as security for loans from the revolving fund. In Jacobs v. Sharp, supra, we upheld the issuance of bonds to finance the construction of buildings by state institutions, and dormitory rental charges were to pledged to the payment of the bonds. In McArthur v. Smallwood, supra, this Court again upheld the issuance of bonds by the Justice Building Commission to obtain funds for the construction of the Justice Building. The Legislature levied certain charges to the filing of cases in court, and this levy, together with lease rentals to be paid by the Workmen’s Compensation Commission, the Public Service Commission, and the proceeds of the sale of the old Workmen’s Compensation Building, were pledged to the payment of these bonds. The purpose of Amendment 20 is well expressed in Davis v. Phipps, supra, as follows:

“Amendment No. 20 provides that the State of Arkansas shall issue no bonds, or other evidences of indebtedness, pledging any of the revenues of the State, except when authorized by a majority vote of the qualified electors of the State. If the securities pledged for the payment of these bonds, which the State Board of Education desires to issue, may be deemed revenues of the State of Arkansas, then it is doubtful if such security could be legally pledged.

There should not be very much difficulty in a proper understanding and interpretation of what is meant by the language of Amendment No. 20, which prohibits the pledging of the State’s revenues. Citizens of the State who have been interested in its welfare and who have attempted to keep themselves reasonably well-informed know what the evils were for which Amendment No. 20 was framed to cure. It must be a fact well recognized in State history that, at the time Amendment No. 20 was being considered by the electors of the State, the financial affairs of our Commonwealth had been well-nigh wrecked by issuance of bonds far in excess of the amount justified by the liquid resources of the State. High taxes had been imposed to raise revenues to meet these enormous obligations. It was well understood then, as it is now, that a continuation of these practices that had grown up were pyramiding debts and tapping every source of revenue for payment thereof and could not continue without practical bankruptcy. * * *

But, aside from further speculation, we may say that Amendment No. 20 prohibits bonds or instruments issued by the State itself for the security of which is pledged the State’s faith and credit. A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the State is not issuing these bonds, and it would not be bound for their payment. Therefore, these bonds, which the State Board of Education is about to issue, are not within the prohibited class.”

In McArthur v. Smallwood, supra, this Court, quoting from the Michigan Supreme Court, stated:

“The bonds provided for are to be paid from a special fund and solely from anticipated revenues to be derived from the sale of cigarettes. They are not, and cannot be, a general obligation of the state. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the state. He must look solely to the fund upon which they are drawn.”

Further, in referring to our own cases:

“The moneys pledged to the payment of the bonds in the Jacobs v. Sharp decision, supra, were admittedly public revenues. Therefore, it seems to be well established by the decisions of this Court that the pledging of so-called state or public revenues is not prohibited by Amendment No. 20 unless the pledge is to the payment of State of Arkansas bonds.”

In the cases just cited, we held that the dangers which Amendment No. 20 was designed to protect against, did not exist, because the revenues pledged to the incurred obligations were clearly defined sources of revenue, and the pledges to the payment of the indebtedness were clearly limited. This logic is equally true as to the certificates of indebtedness here in question. They are payable only from the interest derived from the investment of daily treasury balances, and are solely the obligation of the State Beserve Fund Commission. The last paragraph of Section 5 of Act 65 plainly states:

“The Certificates and interest thereon shall be payable solely from and secured by a pledge of the gross revenues of the Commission, hereafter in this Act provided and defined, which revenues are hereby specifically declared to be cash funds received from sources other than taxes, restricted in their use, and dedicated solely for the purposes set forth herein, and the Commission is hereby authorized and empowered to make a pledge of said gross revenues in the resolution authorizing the issuance of the Certificates. The Certificates shall be general obligations only of the Commission, and in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged.”

Appellant’s contention is without merit.

“III.

The Authority Given to the State Board of Finance to Purchase the Certificates of Indebteness is Contrary to the Arkansas Constitution in That the Certificates Constitute a Speculative Investment That Will Not be Eeadily Marketable and Thus Will Impair the State’s Ability to Meet Its Obligations.”

A good part of the argument under this point is devoted to the advisability of the legislation, and we have already stated that we are not, as a court, concerned with the wisdom of measures enacted into law. Appellant recognizes that this Court has already approved the investment of state funds. Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272. In Halbert v. Helena-West Helena Industrial Development Corporation, 226 Ark. 620, 291 S. W. 2d 802, and Andres v. First Arkansas Development Finance Corporation, 230 Ark. 594, 324 S. W. 2d 97, we held that state funds could properly be invested in bonds of local industrial corporations. Appellees point out that in any comparison of the degree of speculation and marketability, the certificates under discussion would appear to be a much sounder investment than the bonds of a local industrial development corporation. From appellees ’ brief:

“The interest with which the certificates are to be paid has been coming in regularly in predictable amounts ever since the investment of State funds was authorized. In fact, the official records of the state reflect that the proceeds of such interest have been coming in in amounts that indicate that the certificates will be retired well in advance of their maturity date. The bonds of local industrial development corporations, on the other hand, depend for their payment upon the lease rentals to be paid by a specific industry which has leased the plant constructed with the proceeds of bonds. The bonds are only as good as the particular lessee, and frequently the lessee is a company with very little capital and/or very little experience in the business. In fact, these bonds were so unacceptable and so difficult to market that the people of Arkansas had to turn to other means of financing industrial development. (Amendment 49, and Act 9 of 1961).”

It is also pointed out that the safeguards provided in Act 65 further demonstrate the soundness of the certificates. Subsection (A) of Section 7 provides:

“For the purpose of providing additional revenues, and a better safeguard for state funds, the Board is hereby authorized and empowered to purchase, from time to time, with funds as in this section hereinafter specified, direct obligations of the United States of America, and of the State of Arkansas, and State Budget Revolving Fund Certificates of Indebtedness, but only to an extent such that not exceeding seventy-five per cent (75%) of the average daily balances of state funds on the records of the Treasurer of State for the two (2) years immediately preceding the date or dates set for the purchase of said obligations shall be represented at any one time by the aggregate of the obligations so purchased and owned by the State.”

Sections 11 and 13 provide additional safeguards.

“IV.

Act 65 Delegates Legislative Power to the State Board of Finance and is Thus in Violation of Article 5, Section 1, as Amended by Amendment No. 7, and Article 4, Sections 1 and 2 of the Arkansas Constitution.”

Article 5, Section 1, of the Constitution, as amended by Amendment No. 7,® places the legislative power in the General Assembly. Article 4, Section 1, of the Constitution, divides the powers of government into three departments, legislative, executive, and judicial. Article 4, Sec-ion 2, states:

“No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

Appellant contends that Act 65 delegates too much power to the State Board of Finance, specifically, that the Board is given too much discretion in determining whether to buy, or not buy, the certificates, and in deciding what amount of certificates should be purchased. Reference is made to Section 5, which empowers the said Board to purchase certificates “of a total principal amount not exceeding eight million, five hundred seventy-four thousand dollars ($8,574,000.00).” Here again, the argument advanced by appellant has previously been rejected by this Court. In Andres v. First Arkansas Development Finance Corporation, supra, we approved the granting of authority to the State Board of Finance, as provided in Section 19 of Act 567 of 1957, to “in it(s) discretion, purchase, at a price not to exceed par and accrued interest, bonds of any development finance corporation organized under the provisions of this Act to the extent of Five Million Dollars ($5,000,000); * * *.” Likewise, in Halbert v. Helena-West Helena Industrial Development Corporation, supra, authority was given to the Board of Finance to purchase “in its discretion” up to 50% of the principal amount of bonds issued by a local development corporation. The Court said:

“Whether the State Board of Finance invests the State’s surplus in one kind of bond or another is a matter for the Legislature to permit, and for the State Board of Finance to then decide in the exercise of its discretion.”

In Ward v. Bailey, supra, legislative authority which had been given to the State Investment Board to invest in an amount not to exceed 50% of the average state fund balances for the .preceding two years, limited, however, to the investment of $4,000,000, was upheld. In the case before us, the maturity date for the certificates and the rate of interest are set forth in Section 6 of the Act. The total amount that may be issued is specified in Section 5, and the source of payment is clearly set forth, and limited. We have concluded that appellant’s contcnion is without merit.

It follows that the Chancery Court did not err in dismissing appellant’s complaint, and the decree is, in all things, affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. For a long time it has been recognized in this State that there is a great need for additional buildings and equipment at the University of Arkansas and the other State supported schools. The 1961 General Assembly made a step in the direction of meeting such needs by the passage of Act No. 442 of 1961; but that Act was declared unconstitutional in the case of Cottrell v. Faubus on June 5, 1961, 233 Ark. 721, 347 S. W. 2d 52. As a direct result of that decision, the Legislature was called into special session in August 1961, and undertook to find ways to take care of some of the building needs of the University and the other State supported schools.

Several acts were passed to make money available out of one of the cushion funds set up under the Revenue Stabilization Law; and then in Act No. 65 of the First Special Session of 1961 (which is the Act here before us) the Legislature undertook to set up a commission to provide money for an additional cushion fund. The question now before us is the validity of this Act No. 65 which creates the State Reserve Fund Commission and authorizes it to issue certificates up to the total amount of $8,574,000.00, which certificates will be due on or before fifteen years and will bear interest at three per cent per annum.

The point that gave me the greatest concern in this case was the negotiability of these certificates, because the Act No. 65 provides in § 6: “The certificates shall have all of the qualities of negotiable instruments under the negotiable instrument laws of this State.” I envisaged: that the State Reserve Fund Commission would sell the certificates to the State Board of Finance (under § 10 of this Act No. 65); that if the State Board of Finance so desired, it could sell the said certificates by proceeding under § 13-406 Ark. Stats.; that the certificates of the State Reserve Fund Commission would be on the general market; and that if a default occur then the State’s credit or at least its good name would be hurt. We had such a horrible occurrence in the Road Improvement District Bonds, and also in the Depression of 1932. “A burned child fears the fire”; and I wanted to make sure that a similar situation did not occur again.

However, after much serious study, I have reached the conclusion that my fears can be remedied only by the Legislature and not by the courts. I find nothing in the Constitution that prohibits the Legislature from setting up a commission like the one here, which can issue certificates like these. Such procedure was directly approved in McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428. If the said certificates issued under the Act No. 65 reach the hands of holders for value before maturity, and if there should be a default: it “just occurs.” As we said in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 959:

“In determining the answer to the posed question, we emphasize that the Legislature, as the supreme lawmaking body, possesses all legislative powers except those expressly or impliedly prohibited by the Constitution. State v. Ashley, 1 Ark. 513; Straub v. Gordon, 27 Ark. 625; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. So we examine the Constitution to see if the Legislature is prohibited from allowing the state agencies and institutions to have and disburse cash funds.”

In short, I find nothing in the Constitution that prohibits the Legislature from doing what it has done in said Act No. 65. Gipson v. Ingram, supra, and McArthur v. Smallwood, supra, point to such a result. Of course, .any purchaser of these certificates from the State Board of Finance knows that these certificates are not State obligations and that only a specific fund is pledged to the payment of these certificates, and snch purchaser would take with his eyes open. Because of all this, I concur in the conclusion that the Act No. 65 is not unconstitutional.

       General revenues of the State are not received in equal monthly amounts; for instance, July through February (excluding November), are months of lowest tax collections, and November, and March through June are months of highest tax collections. Accordingly, through a permanent revolving fund, advances of moneys may be made to the several operating fund accounts during low revenue months, and these advances of moneys are repaid during high revenue months. This results in the restoration of the full amount in the revolving fund at the end of each fiscal year making the same amount of moneys available for another cycle of similar transactions.

       Emphasis supplied.

       In that case, no direct statutory authority had been granted.

       This amended sub-section (A) of Section 3 of Act 338, approved March 24, 1955.

       “Section 13. (A) It shall be the duty of the State Board of Finance to keep itself continuously advised as to the amount of the average daily State fund balances in the State Treasury; and whenever, on the last day of any month, the said Board shall determine that the aggregate total principal amount of securities held in the Securities Account in the State Treasury shall exceed seventy-five per cent (75%) of the amount of the average daily State fund balances for the next preceding two-year period, it shall proceed immediately to sell such principal amount of securities as shall be required to reduce the total principal amount of holdings in said Securities Account to not more than the said seventy-five per cent (75%) of the average daily State fund balances for the next preceding two-year period.
      (B) If, as the result of any such sale or of any other condition or circumstance hereafter arising, the State Board of Finance shall determine that the interest income derived from securities held in the Securities Account, and by this Act denominated cash funds available to the Commission only for the purpose of meeting the debt service requirements of its outstanding Certificates of Indebtedness, shall be insufficient to fully amortize said Certificates on or before the date of maturity thereof, it shall, in the exercise of its best judgment, determine the amount thereof which cannot be so amortized, and immediately thereafter file its certificate with the State Treasurer setting forth therein the said amount. As soon as may be done after the receipt of any such certificate, but not later than the end of the then current fiscal year, it shall be the duty of the State Treasurer, by appropriate entry upon his records, to reduce the balance in the Revolving Fund by the amount set forth in the said certificate of the State Board of Finance, and, concurrently therewith, and by appropriate entry, to reduce, by the same amount, the total principal amount of the said Certificates of Indebtedness then held in the Securities Account, and the State Treasurer shall forthwith take appropriate action to satisfy the principal amount of the Certificates to the extent of such reduction. Provided, however, in no instance shall such concurrently made reductions exceed the principal amount of certificates of indebtedness theretofore amortized.”

       This amendment likewise reserves to the people the power of the initiative and referendum.

       This Act may be found in § 13-327 et seq. of Ark. Stats.

       The new Uniform Commercial Code of Arkansas, as found in § 85-3-105 Ark. Stats., says: “A promise or order otherwise unconditional is not made conditional by the fact that the instrument ...(g) is limited to payment out of a particular fund or the proceeds of a particular source if the instrument is issued by a government or governmental agency or unit.” The same section further says: “A promise or order is not unconditional if the instrument . . . (b) states that it is to be paid only out of a particular fund or source except as provided in this section.” The interplay of these provisions is not now before us.


author: Ed. F. McFaddin, Associate Justice.

text:
    Mahone v. City of Rogers.
    5-2598
    353 S. W. 2d 184
    Opinion delivered January 29, 1962.

      Eugene Coffelt, for appellant.

      Scott & Davidson, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal challenges the judgment of the Circuit Court which annexed certain lands to the City of Rogers. The City was proceeding under § 19-307 Ark. Stats., and such procedure was discussed in City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438; and also in Burton v. Ft. Smith, 214 Ark. 516, 216 S. W. 2d 884.

The petition for annexation was filed in the County Court, and from judgment in favor of the City, the appellants (as remonstrants) appealed to the Circuit Court. The Circuit Court judgment granted the annexation; and the appellants, in appealing to this Court, have brought only a partial record which contains the pleadings (and exhibits), the judgments, and the notice of appeal. The appellants urge three points in this Court:

“1. The Petition was not filed as provided by Section 19-307, and section 19-101, 19-102 and 19-103 of the Arkansas statutes in that the lands to be annexed were not described in the Petition and no map or plat filed.
“2. The Court omitted lands described in the Notice and Ordinance without request to do so.
“3. The lands are not properly described.”

There is no merit to the first point urged by the appellants, because the transcript which was filed in this Court shows: (a) the Ordinance of the City submitting the issue to the voters, which Ordinance contains a description of the lands to be annexed; (b) the County Court order which contains a description of the annexed lands; (c) the Circuit Court order of annexation which contains a description of the lands annexed; and (d) the Circuit Court order which specifically recites: “(4) That the City of Rogers has caused a plat of the territory sought to be annexed to be filed as required by law and that all of said territory is contiguous to the City of Rogers, Arkansas.” In disposing of the first point, we have likewise disposed of appellants’ third point, since the lands are properly described, as we have just stated.

There is no merit to appellants ’ second point sought to be urged, which is that the Court omitted lands described in the notice and ordinance without request to do so. It appears in the County Court judgment that one tract sought to be annexed was excluded; this same tract was likewise excluded from the annexation order in the Circuit Court; and appellants insist that the Court could not, on its own motion, exclude a part of the property described in the petition for annexation. Woodruff v. Eureka Springs, 55 Ark. 618, 19 S. W. 15. In designating the record for appeal, the appellants designated only the pleadings, the judgment, and the notice of appeal, and did not file, at the time of designation, the points upon which they would rely for reversal, as required by Act No. 555 of 1953, so appellee had no occasion or opportunity to bring into the record the other pleadings or rulings relating to the case.

Even though the amendatory pleading by the City of Rogers is not in the record before us, the orders show that such a pleading was filed. The County Court order of annexation, which is before us, shows that this tract was excluded from the County Court order of annexation; and the County Court order contains this recital: “. . . that the petition as amended should be approved . . . that a plat showing the said boundaries as amended and showing the territory as embraced by the said boundaries, has been filed with the Court.” Thus it is clear that in the County Court an amendment was filed to the petition for annexation. Since the only party /that could have filed the petition and amendment was the City of Rogers (because we held in Woodruff v. Eureka Springs, supra, that the Court could not amend the petition on its own motion), we conclude that the City of Rogers amended the petition for annexation in the County Court by excluding one tract.

Finding no merit in the appeal, the judgment of the Circuit Court is in all things affirmed.

       The Circuit Court judgment recited, in part: “. . . and the Court, after hearing the evidence adduced by the City of Rogers and the remonstrants, both documentary and oral, and being well and sufficiently advised both as to law and as to fact, doth find:
      “1. That on the 9th day of September, 1960, the City Council of the City of Rogers, adopted and passed Ordinance No. 434, providing for the annexation of certain lands, hereinafter described, and for submitting said ordinance to the qualified electors of the City of Rogers for approval.

        “2. That on the 8th day of November, 1960, the qualified electors of the City of Rogers approved said annexation of lands hereinafter described by a vote of 1351 for annexation of 654 against annexation.
      “3. That a petition for annexation was thereafter filed by the City of Rogers with the County Court of Benton County, Arkansas, and notice of hearing on said petition was duly published in the Rogers Daily News, a daily newspaper having a bona fide circulation in the County of Benton, for three (3) consecutive weeks as required by law.
      “4. That the City of Rogers has caused a plat of the territory sought to be annexed to be filed as required by law, and that all of said territory is contiguous to the City of Rogers, Arkansas.
      “5. That the following described property should be, and is hereby annexed to the City of Rogers, County of Benton, State of Arkansas to-wit: . .
      The annexed property was duly described by section, township, and range, in the petition, the County Court order, and the Circuit Court order.

       Section 27-2127.5 Ark. Stats, says in part: “If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal.”


author: George Bose Smith, J.

text:
    Wolfe v. Herndon, Excx.
    5-2602
    353 S. W. 2d 540
    Opinion delivered January 29, 1962.
    [Rehearing denied March 5, 1962.]

      Davis $ Mills and Bex W. Perkins, for appellant.

      J. Wesley Sampler and Crouch, Jones, Blair & Cypert, for appellee.
   George Bose Smith, J.

In 1959 there was a collision between a car owned by T. L. Jacobs and a motorcycle being ridden by McAllen Wolfe, a boy of fifteen. Jacobs died on April 11, 1960, from causes not attributed to the accident. On April 21 the appellee was appointed executrix of his will. Her statutory notice to creditors was first published on April 27. See Ark. Stats. 1947, § 62-2111.

On June 2, 1960, the executrix brought this action in the Benton circuit court against the boy and his parents, seeking to recover the damage to Jacobs’ car and damages for verbal abuse suffered by Jacobs at the scene of the collision. By cross complaint the defendants sought compensation for young Wolfe’s injuries, his medical expense, and the property damage to the motorcycle. More than six months after the first publication of the executrix’s notice to creditors the trial court dismissed the cross complaint with prejudice, on the ground that a copy thereof had not been filed with the probate court. Ark. Stats., § 62-2602. The correctness of that dismissal is the principal issue on appeal.

The appellants contend that the filing requirement in question applies only to an original complaint against a personal representative and not to a cross complaint against such a fiduciary. We are unable to agree with that view.

In analyzing the statutes our starting point must be § 110 of the Probate Code, which sweepingly declares that, except in two instances, all claims against a decedent’s estate, “whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise,” shall be forever barred unless presented to the personal representative or filed in court within six months after the first publication of the notice to creditors. Ark. Stats., § 62-2601. This language unmistakably expresses the legislative intention to require the assertion of all claims, including those sounding in tort, within the six-month period.

The appellants made no attempt to present to the executrix, within the six months, a verified claim conforming to Ark. Stats., § 62-2603. Their demand is therefore barred by § 110 of the Code unless the bare filing of a cross complaint in the circuit court, without a copy thereof being filed in the probate court, brings the claim within the exception set out in § 111 of the Code.

The pertinent parts of § 111, which we have broken down into four clauses, read as follows: “ [Clause 1] The provisions of Section 110 shall not preclude the commencement or continuance of separate actions against the personal representative as such for the debts and other liabilities of the decedent, if commenced or revived within the periods stated in Section 110. [Clause 5] Any action pending against any person at the time of his death, which survives against the personal representative, shall be considered a claim duly filed against the estate from the time such action is revived, and [Clause 3] any action commenced against a personal representative as such after the death of the decedent shall be considered a claim duly filed against the estate from the time such action is commenced; [Clause 4] provided that, within the time required by Section 110 for filing claims against the estate, the plaintiff in such action files with the Probate Court in which the estate is being administered a copy of the petition for revivor or of the complaint, or a statement signed by the plaintiff or his attorney setting forth a description of the nature of the action, the claim or demand therein involved, the parties to the action, and the court in which the action is pending.” Ark. Stats., § 62-2602.

Clause 1 states in general language that § 110 of the Code does not prohibit a separate action against a personal representative, but the action must be commenced or revived within the six months allowed for the filing of claims. Clause 2 permits the revivor of actions pending at the decedent’s death and is not pertinent here.

Clause 3 provides that “any action” commenced against a personal representative shall be considered a claim against the estate from the time the action is commenced. It is, we think, of the utmost importance to realize that the appellants must rely upon Clause 3 to have any standing in the case. That is, since the appellants did not present a verified claim to the executrix they must take the position that the filing of their cross complaint in the circuit court constituted the commencement of an action.

. The appellants must therefore concede that in Clause 3 “any action” includes a cross complaint. In the next breath the legislature directed in Clause 4 that the plaintiff “in such action” file with the probate court a copy of the complaint or a descriptive statement of the action. In construing the statute we cannot avoid the logical and persuasive conclusion that if the reference in Clause 3 to any action includes a cross complaint then the identical meaning must be attributed to the reference in Clause 4 to any such action. The former is the antecedent of the latter. It follows that Clause 4 requires that a copy of a cross complaint be filed with the probate court. The failure to comply with this clause is a bar to the claim. Turner v. Meek, 225 Ark. 744, 284 S. W. 2d 848.

To avoid this construction of the statute the appellants insist that the word “plaintiff” in Clause 4 does not include a cross complainant. This question is one of legislative intent. It has frequently been held that a reference to the plaintiff embraces a cross-plaintiff as well if the wording of the statute as a whole indicates that to be the proper interpretation of the law. Fox v. Pinson, 182 Ark. 936, 34 S. W. 2d 459, 74 A. L. R. 583; Allers v. Beverly Hills Laundry, 98 Calif. App. 580, 277 P. 337; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N. W. 2d 751; Berger v. Van Doorn, 57 N. Y. S. 2d 434. Inasmuch as the action referred to in Clause 3 includes a cross-action it cannot he doubted that the plaintiff referred to in Clause 4 also includes a cross-plaintiff. The need for informing the probate court of the pendency of the action is the same in both instances.

As a secondary argument it is insisted that the executrix, by filing the suit and taking routine steps in its prosecution, waived the statutory requirement that a copy of the cross complaint be filed with the probate court. That holding would nullify the statute as far as cross complaints are concerned, for the need for such a pleading never arises until the other party has first brought the suit. Hence the waiver would be unavoidable if the mere filing of suit excused compliance with the statute.

McAllen Wolfe complains that his guardian ad litem was not appointed in strict compliance with the statute. This is immaterial. The question is whether his claim against the Jacobs estate has been presented within the time allowed by law. There is no savings clause in favor of infants in the statute of nonclaim, Stewart v. Thomasson, 94 Ark. 60, 126 S. W. 86, doubtless because such an exception might often require that the estate of a deceased person be kept open for many years, with hardship to the widow and heirs. In the absence of a savings clause it was incumbent upon McAllen to present his claim in compliance with the statute. The asserted procedural irregularity could not affect his affirmative duty of establishing his claim according to law.

A final contention is that the trial court erred in overruling the appellants demurrer to that part of the executrix’s complaint that sought damages for conduct in the nature of a defamation. It is said that such a cause of action would not survive the death of Jacobs. Ark. Stats., § 27-902. This point is now academic, because the executrix elected to take a voluntary nonsuit after the dismissal of the cross complaint. It is possible that the complaint will never be filed again. Furthermore, even if we should hold that the demurrer ought to have been sustained the executrix would be entitled to an opportunity to amend her complaint. That opportunity cannot be afforded, since no action is pending.

Affirmed.