author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice

text:
    Greene v. Thompson.
    5-1377
    305 S. W. 2d 136
    Opinion delivered July 1, 1957.
    [Rehearing denied October 7, 1957]

      Downie & Downie, for appellant.

      Barber, Henry, Thurman & McCaskill, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case involves the deed in trust executed by Governor and Mrs. George W. Donaghey. Specifically, the question is: under the facts here presented, can the Trustees of the Donaghey Foundation continue to pay the net proceeds of the Foundation to the Little Rock Junior College if that institution ceases to be operated by or under the supervision of the School Directors of the Little Rock School District?

In the case of Little Rock Junior College v. George W. Donaghey Foundation, 224 Ark. 895, 277 S. W. 2d 79, we had before us the deed in trust executed by Governor and Mrs. Donaghey; and that opinion contains the basic facts about the Donaghey deed in trust. The majority opinion in that case concludes with these two pertinent paragraphs:

“But little need be said about appellee’s contention that since the college has incorporated, it is no longer under the supervision of the Little Bock School Board and is therefore not entitled to receive anything from the trust. Surely appellees do not have much confidence in that theory, for the payments to the college were continued after the four-year program was abandoned.

“The deed provides that the school be ‘under the supervision of the public school authorities in said city.’ The college was incorporated in 1947; section one of Article 5 of the Articles of Incorporation provides: ‘The management and administration of the affairs of the corporation shall be vested in a Board of Trustees which shall always be composed of and limited to duly elected and installed Directors of the Little Bock School District.’ Hence the college is under the supervision of the public school authorities of Little Bock j'ust as much as it is possible to be under such supervision. By incorporating the institution and limiting the personnel of the Board of Trustees to duly elected and installed Directors of the Little Bock School District, the provision in the deed in trust pertaining to the college being supervised by the school authorities of Little Bock is fully complied with.”

As stated in the foregoing paragraphs, the School Directors of the Little Bock School District incorporated the Little Bock Junior College (as a non-profit educational corporation under § 64-1301 et seq. Ark. Stats.), and the School Directors of the Little Bock School District were the Directors of the Little Bock Junior College corporation and thus retained the operation and management of the Junior College. But after our opinion in the case of Little Rock Junior College v. George W. Donaghey Foundation, supra, the School Directors of the Little Bock School District decided to surrender their directorship of the Little Bock Junior College corporation. to other persons. Thereupon, the present suit was instituted by James E. Greene, et al., as plaintiffs, against Charles L. Thompson, John Eule, William Nash, Alfred Kahn, Leo Pfeifer, Henry Hollenberg, and Clyde Lowry, “Trustees of the Trust Created by the Deed in Trust executed by George W. Donaghey and Louvenia Donaghey under date of July 1, 1929.”

The complaint alleged that the plaintiffs were citizens, taxpayers, and patrons of the Little Eock School District; that this suit was for the benefit of themselves and all others similarly situated; that the defendants were the present Trustees of the Donaghey Foundation; that the Little Eock Junior College was the beneficiary of the Donaghey Foundation; that the School Directors of the Little Eock School District were the Trustees charged with the responsibility of managing and operating the Little Eock Junior College; that the School Directors of the Little Eock School District were now attempting to put into operation a plan so that the Little Eock Junior College would be managed by persons other than the elected School Directors of the Little Eock School District; that the defendants, as Trustees of the Donaghey Foundation, had agreed that they would continue to give the income derived from the Donaghey Foundation to the Little Eock Junior College, even under its new management; and that the Trustees of the Donaghey Foundation had no power, under the terms of the Donaghey deed in trust, to give any part of the income from the Donaghey Foundation to the Little Eock Junior College if it ceased to be operated or supervised by the Directors of the Little Bock School District.

The plaintiffs prayed that the defendants, as Trustees of the Donaghey Foundation, be enjoined from giving any of the money of the Donaghey Foundation to the Little Bock Junior College, in the event the operation or supervision of the Little Bock Junior College should pass from the Directors of the Little Bock School District. The defendants filed an answer, which in effect admitted the facts as alleged; and prayed “. . . that the Court interpret the deed in trust and that they be authorized, in their discretion, to continue to make payments to the beneficiary named in said deed in trust, that is, the Little Bock Junior College, during the time it is operated as a junior college and when and if it is advanced to a senior college, even though it is not operated by or under the supervision of the public school authorities of the City of Little Bock . . . ”

The deed in trust of Governor Donaghey was very specific as to the necessity of the Board of School Directors of the Little Bock School District continuing to manage and control the Little Bock Junior College. Here is the pertinent language:

“It is the object and purpose of this deed to convey the property herein described to said Trustees, their successors and assigns for the purpose of creating a fund or foundation to be used for the sole and exclusive benefit of the present Little Bock Junior College, an institution of learning in said city, at the present time operated under the management of the Board of School Directors of the Special School District of Little Bock, Arkansas, investing said Trustees with full discretion to select some other public school or schools in said city, operated by or under the management or supervision of the Board of School Directors of the said Special School District' of Little Rock, and their successors in charge of the public schools in the said City of Little Rock, in the event the present Little Rock Junior College or its successors, should at any time cease to be operated by or under the supervision of the public school authorities in said city.” (Italics our own.)

Notwithstanding the quoted language, the Puláski Chancery Court held, in the case at bar, that the Trustees of the Donaghey Foundation could continue to pay the net proceeds of the Donaghey Foundation to the Little Rock Junior College, even though the School Directors of the Little Rock School District surrendered the directorships and the Little Rock Junior College ceased to be operated by or under the supervision of the School Directors of the Little Rock School District. We hold that the decision of the Pulaski Chancery Court was in error. The language we have italicized in the paragraph above is as clear as the English language can be made: “. . . in the event the present Little Rock Junior College or its successors, should at any time cease to be operated by or under the supervision of the public school authorities in said city . . .”, then the Trustees of the Donaghey Foundation were to deliver the net proceed of the Donaghey Foundation to ‘ ‘. . . some other public school or schools in said city, operated by or under the management or supervision of the Board of School Directors of the said Special School District of Little Rock, and their successors in charge of the public schools in the said City of Little Rock . . .” No amount of semantics can change the plain language of the Donaghey deed in trust in this particular.

In Morris v. Boyd, 110 Ark. 468, 162 S. W. 69, this Court had before it a case in which the Chancery Court had rendered a decree changing the terms of a trust; and what we said in that case is enlightening and guiding in the ease at bar. We quote at length:

“ ‘The rights and powers of a trustee . . . are derived from and measured and limited by the instrument creating the trust,’ and ‘they will not be permitted to change the nature, objects and purposes of the trust, or vary the rights of the beneficiaries.’ 39 Cyc. 290.

“The power of courts over charitable trusts, so far as concerns the use to which the property conveyed is to be appropriated, is derived from the same source whence the authority of the trustees originates, namely, the instrument whereby the trust is created, and the directions of the donor must be adhered to as rigidly by courts as by trustees.

“Courts may define, but not enlarge, the powers conferred upon the trustee by the instrument creating the trust. That doctrine is concisely stated by a learned court in the following words: “ ‘It may be conceded that a court of equity has no power to make a new will for a testator, and that the extent of its power is to construe the will as presented to it. And, further, that such court can no more authorize an act to be done which is in excess of the powers conferred by the will than can the trustees therein do such act. As to these propositions there is, or can be, no question or doubt.’ Drake v. Crane, 127 Mo. 85 . . .

“The facts of this case fairly illustrate the force of the doctrine we are undertaking to announce. The testator intended to create a trust upon certain contingencies and devote substantially all of his property to the purposes of the trust. He clearly expressed his purpose in his last will and testament. The contemplated settlement changes that and diverts the major portion'of the property from the operation of the trust. It makes an appropriation of the testator’s property contrary to his expressed intention ...

“But the settlement or compromise involved in this case reaches to the very foundation of the trust and involves a' direct change and setting aside of the will of the testator. This is as much beyond the power of the court as of the trustees themselves.”

Other cases to the same effect are Union National Bank v. Kirby, 189 Ark. 369, 72 S. W. 2d 229; and Atkinson v. Lyle, 191 Ark. 61, 85 S. W. 2d 715. We realize that the School Directors of the Little Bock School District are faced- with an almost superhuman task:. anyone who serves as a School Director. is certain^ ly doing a great public service. As the City has grown, the schools have grown, and the problems -of school management are enormous; and it would certainly lighten the load of the School Directors of the Little Rock School District if they could pass over to others the responsibility of operating or supervising the Little Rock Junior College, which is soon to be the Little Rock University. But, as much as we sympathize with the School Directors in their labors, we still have the responsibility of seeing that the trust is observed in accordance with the plain directions of the settlors; and in order for the Little Rock Junior College to continue to receive the money from the Donaghey Foundation in preference to the other public schools of Little Rock, then the Little Rock Junior College must be “. . . operated by and under the supervision of the public school authorities in said city . . .” Should the School Directors of the Little Rock School District for any reason refuse to operate or supervise the Little Rock Junior College, then the power of equity to prevent the loss to the innocent beneficiary might be brought into play; but that situation is not here presented. The effect of our holding in the present case is to declare that the plan as proposed herein is in violation of the deed in trust.

Therefore, the decree is reversed and the cause is remanded, with directions to enter a decree construing the deed in trust in accordance with the holding herein.

Ward, J., concurs; Holt and Robinson, JJ., dissent.

Paul Ward, Associate Justice

(concurring). My concurrence goes to this point: It appears to me that this court might well have granted the relief which the majority opinion, by insinuation, says can be granted in case the Little Rock School District should ever refuse to operate or supervise the Little Rock Junior College.

My interpretation of the pleadings in this case is that directors of the Little Rock School District have already refused to ‘ ‘ operate or supervise the Little Rock Junior College.” The complaint alleges that said school directors are attempting to put into operation a plan whereby said college would be managed by other persons. This allegation is not denied, therefore I would take it as an established fact.

I can see no reason why this court should invite further litigation to achieve the result which the majority opinion has already pointed out would follow.

       The plan of such surrender was this: the Directors of the Little Rock School District, acting in their capacity as the Board of the Little Rock Junior College corporation, undertook to amend the constitution of the Little Rock Junior College corporation so as to set up a Board of Directors of the Little Rock Junior College corporation to be selected by Trustees from various groups, such as Trustees of the Donaghey Foundation, Directors of the Little Rock School District, the Alumni Association of Little Rock Junior College, and the Little Rock Junior College Foundation Incorporated. In short, the proposed amendment to the constitution of the Little Rock Junior College corporation would relieve the School Directors of the Little Rock Junior College. The Trustees of the Donaghey Foundation were agreeable to this plan.

       The plan was detailed as stated in Footnote No. 1.

       For reasons best known to themselves, neither side saw fit to make the School Directors of the Little Bock School District parties to this litigation; but neither side has raised any question of defect of parties, so we proceed to decide the question as stated in the first paragraph of this opinion.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Creighton v. Huggins.
    5-1304
    303 S. W. 2d 893
    Opinion delivered July 1, 1957.

      Sloan & Sloan, by Frank Sloan, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit by appellee, James C. Huggins, for specific performance of a contract under which the appellants, J. L. Creighton and wife, were to sell him a house and lot in Jonesboro, Arkansas, for $6,000. Appellee, Donald E. Gilbert, who executed the sales contract on behalf of the appellants, joined in the suit, claiming a 5% commission of the agreed purchase price was due him as a licensed real estate broker employed by the appellants. In their answer appellants alleged that appellees sought by parol evidence and circumstances to modify and alter the written contract hy adding to the property to he sold a strip of land 11.4 feet wide and 65 feet long; and that such attempted change was a void effort to modify the contract hy parol evidence and within the statute of frauds which was pleaded as a complete bar to the suit.

This appeal is from a decree ordering specific performance of the contract, payment of a commission of $300.00 to appellee, Gilbert, and denying appellants’ counterclaim for unpaid rents and damages. The principal issue is whether Appellee Huggins, under the statute of frauds, was entitled to specific performance of the contract where the description covered only a part of a larger tract owned by appellants and a determination of what part of the larger tract was intended to be included could not be made without resorting to parol evidence.

Appellant J. L. Creighton inherited a tract of land in 1934 described as Lot 3 of Cobb’s Survey of the Southwest Quarter of the Southeast Quarter of Section 18, Township 14 North, Range 4 East, in the City of Jonesboro, Arkansas. The tract measures 65 feet east and west and 215.2 feet north and south. It is bounded on the north by Monroe Avenue, on the south by Washington Avenue and on the west by Carson Street. In 1934 the Creighton family residence was located on the south portion of the lot and known as “500 East Washington Avenue.” This residence was subsequently converted into a four-unit brick apartment building. On the north part of the lot there was an old frame dwelling designated as “400 Carson Street,” which was rented to tenants. There was a double garage between the two buildings, which was at first used exclusively by the Creighton family as occupants of 500 East Washington. About 1944 the old house at 400 Carson Street was torn down and materials from it used to convert the double garage to a small apartment which was numbered 400 1/2 Carson Street. In 1947 a new five-room frame dwelling was erected in place of the old house at 400 Carson Street.

Appellants have resided in California for several years. In early 1951 or 1952 Appellee Gilbert succeeded another agency, as appellants’ local agent for rental of their property. The garage apartment was rented to various tenants prior to 1952 when the city directed that such rental cease because of .insufficient plumbing facilities. After 1952 the garage building was used for storage purposes by the tenants at both 400 Carson Street and 500 Washington Avenue. When appellants constructed the new house at 400 Carson Street in 1947 they caused a survey of Lot 3 to be made dividing it into approximately two equal'parts; the east-west division line running through the middle of the garage apartment with one room located north and the other room south of said line. In accordance with said survey Lot 3 has been divided on the county tax books since 1948 as: “Lot 3 (less S. 107.1')” and “South 107.1' of Lot 3.” In 1947 and 1952 appellants executed mortgages on the respective parcels, using the descriptions designated by the 1947 survey. A plat of said survey with a sketch of the dwelling at 400 Carson superimposed upon it as shown by another plat in evidence follows:

In the spring of 1955 Appellee Gilbert, as appellants’ agent, rented the property at 400 Carson Street to Huggins for $55.00 per month. Gilbert wrote a letter to appellants on June 3, 1955, proposing “the sale of 400 Carson” to Huggins for $6,000. In their reply dated June 13, 1955, appellants authorized sale of “the house at 400 Carson” on the terms suggested. On July 15,1955, Gilbert, as appellants ’ agent, entered into a written contract with Huggins to sell the property described as: “400 Carson St. — Jonesboro, Craighead, Ark.”

Appellee testified that when Gilbert rented the property to Huggins the latter was placed in possession of the garage apartment as a storage room and that tenants in the four-unit apartment were'only allowed to so nse it by permission from Huggins. This was stoutly disputed by the several tenants of the other apartments who admittedly kept items of personal property stored there and keys to a padlock placed thereon by one of said tenants. This tenant, who was a cousin of Huggins, denied the latter gave him permission to use the building and stated such permission was given by Mrs. Creighton’s aunt who then lived in and had charge of the rental of the four-unit apartment. Gilbert was also permitted to testify over appellants’ objection to a telephone conversation with appellant, J. L. Creighton, which allegedly took place twelve days after the sale contract was signed, as follows:

“The first part of the conversation concerned what the delay was in closing the sale with James Huggins. Then I told him the delay was because of the G. I. loan and he said, ‘I know it takes a lot of time to close those things. How much longer will it take?’ Then I said, ‘If this survey goes all right it should not take but 15 or 20 days more.’ And then I said, ‘We have a hitch in the contract of sale with James Huggins. James Huggins has bought the garage apartment lot and now we find a line was established in this description to split the middle of the garage apartment.’ And I told him I talked with James Huggins and he was not interested in this house without the garage apartment going with it and I had tallied, with the appraisers and they told me they could not approve the loan unless the garage was included and I then told him this $1,000 price on the garage apartment was more than twice its value and I thought it should go with the Carson Street property. It could not be separated and after I explained to bim what the situation was he said, ‘ Certainly. Let the garage apartment go with it. ’ ”

In admitting the testimony which Creighton denied, the chancellor stated it would not be considered as altering the terms of the contract.

When appellants refused to execute a warranty deed cohveying the entire garage apartment or storage room as a part of 400 Carson Street, appellees instituted this suit. In their original complaint filed November 3, 1955, appellees alleged an agreement to sell Huggins: “All of Lot 3 of Cobb’s Survey . . . less and except the South 107.1 feet thereof in the City of Jonesboro, Arkansas, commonly known as 400 Carson Street . . .” In an amendment to the complaint filed January 6, 1956, the following description was substituted in lieu of that set out in the original complaint: “The North 120 feet of Lot 3 in Cobb’s Survey . . in the City of Jonesboro, Craighead County, Arkansas.” It is noted that the first description divides the garage apartment in the middle according to the 1947 survey and subsequent record transactions while the second description includes about 11.5 additional feet and takes in the entire garage building.

Before a court of equity will require specific performance of a contract to convey lands the property must be accurately described; and the contract must disclose a description which in itself is definite and certain, or one which is capable of being made certain by other proof the contract itself furnishing the key by which the property may be identified. Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S. W. 160; Routen v. Walthour-Flake Company, Inc., 221 Ark. 354, 253 S. W. 2d 208. Thus in order to satisfy the Statute of Frauds (Ark. Stats., Sec. 38-101) there must be a memorandum signed by the vendor which furnishes a key from which the location of the property may be ascertained by competent extrinsic evidence. Another applicable rule is stated in 37 C. J. S., Frauds, Statute of, Sec. 282 (b), as follows: “While parol evidence is not admissible to supply a description of the subject matter of a contract within the statute of frauds, if the memorandum contains matters capable of making identification certain, parol evidence may be admitted to apply the description therein.” (Italics supplied). We approved this rule in Moore v. Exelby, 170 Ark. 908, 281 S. W. 671.

A designation of the premises in a contract or memorandum by street number ordinarily proves sufficient to satisfy the statute even though parol evidence must be resorted to in following the key furnished. This is particularly true where the vendor owns only one lot or parcel which may be readily located and identified from the address furnished. We recognized the rule in Ray v. Robben, 225 Ark. 824, 285 S. W. 2d 907, where the vendor of a tourist court consisting of several cabins which were used and considered as a single parcel at the street address given in the memorandum. But a different rule has been followed where, as here, the given street address covers only a part of a larger tract owned by the vendor and there is nothing of record or on the ground to support the theory of identification sought to be established by parol evidence.

As the author states in 49 Am. Jur., Statute of Frauds, Sec. 348: ‘ ‘ The circumstance that the seller owns only one tract of land which answers the description given in the memorandum operates to render sufficient a description which under other circumstances might be too general to satisfy the statute. But notwithstanding the description is apparently of the vendor’s premises at a certain place, if it appears that the sale was of a part only of such premises the description will be deemed insufficient to satisfy the statute unless it expressly defines the boundaries of the portion sold.” This circumstance was recognized in Hereford v. Tilson, 145 Tex. 600, 200 S. W. 2d 985, in which the court denied specific performance because of the statute of frauds where the street address covered only a part of a larger tract owned by the vendor and there was nothing of record or on the ground to indicate what the buyer was to get, and the question of what part of the large tract was intended to be included could not be answered without resorting to parol evidence. See also, Maryland State Housing Company v. Fish, 208 Md. 331, 118 A. 2d 491, where a ‘ ‘ double house” was involved somewhat similar to that in question here. We consider- these decisions sound and the principles announced as controlling here. There were no visible lines or signs on the ground in the instant case to identify the 11.4-foot disputed strip as a part of 400 Carson Street and a resort to all available record evidence tends to contradict rather than support such identification. In these circumstances the learned chancellor correctly held that the subsequent telephone conversation should not be considered as altering the terms of the written contract-but erred in decreeing specific performance.

The decree is accordingly reversed and the cause remanded with directions to dismiss the complaint of appellees and enter judgment for appellants against James C. Huggins for delinquent rents to the date of the decree at the rate of $55.00 per month. Since we are of the opinion that Huggins held over under a bona fide though mistaken belief that he had a right to do so, appellants’ prayer for double damages under Ark. Stats., Sec. 34-1516, will be denied. See Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742.


author: George Rose Smith, J. Paul Ward, Associate Justice

text:
    Hickinbotham v. Williams, Chancellor. Hickinbotham v. Corder.
    4881; 4882
    303 S. W. 2d 563
    Opinion delivered July 1, 1957.
    5-1253
    Opinion delivered July 1, 1957.

      Kenneth Coffelt, for petitioners.

      Bruce Bennett, Atty. Geni., for respondent.

      Kenneth Coffelt, for appellant.

      Bailey, Warren & Bullion, for appellee.
   George Rose Smith, J.

Motions filed in this court by the Hickinbothams in these three cases present the question of whether a Little Rock ordinance requiring grocery stores and meat markets to close on Sunday was repealed by the passage of Act 367 of 1957, which became effective ninety days after the legislature adjourned on March 14 of this year.

For more than a hundred years there was in force a state statute requiring retail stores to remain closed on Sunday. Ark. Stats. 1947, § 41-3802. On July 9, 1956, under the authority of this statute, the city council of Little Rock adopted an ordinance making it unlawful for any person to operate a grocery store or meat market within the city on the Sabbath. This ordinance was upheld last December, it being then contended that the singling out of grocery stores and meat markets is such an unreasonable classification as to deny the equal protection of the laws. Hickinbotham v. Williams, 227 Ark. 126, 296 S. W. 2d 897, cert. den. 353 U. S. 961. In April of this year we affirmed a chancery court decree by which H. V. Hickinbotham was permanently enjoined from operating a grocery store on Sunday. Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. Although our affirmance in the Gorder case became final several weeks ago, Hickinbotham now moves that the judgment be vacated on, the ground that Act 367 rendered the city ordinance ineffective. This motion must be denied, for an application to modify or dissolve an injunction should properly be presented in the first instance to the trial court. Local Union No. 656 v. Mo. Pac. R. Co., 221 Ark. 509, 254 S. W. 2d 62.

After the decree in the Gorder case had been affirmed by this court the chancellor cited H. "V". and J. H. Hickinbotham for contempt and sentenced them to jail for having continued to operate a grocery on Sunday, in disregard of the injunction. The proceedings to review those two citations for contempt are not yet ready for submission to this court on the merits, but at a preliminary hearing we admitted the Hickinbothams to bail on condition that they cease doing business on Sunday until the final decision of this Court. We are now asked to strike this condition from the bail bonds and permit the petitioners to conduct a Sunday business during the pendency of their appeals from the sentences for contempt.

The Hickinbothams’ argument is to this effect: The city ordinance closing grocery stores on Sunday was adopted pursuant to the state statute on the subject. That statute was repealed by Act 367. Hence, it is said, Act 367 nullified the city ordinance as well, and, until the city council passes a new ordinance under the authority of the 1957 act, there is no law prohibiting the operation of a grocery store on Sunday in the city of Little Rock.

This reasoning is not sound. It is true that if Act 367 had been limited to a simple repeal of the state Sunday law it would also have abrogated ordinances that depended on that law for their validity. McQuillin on Municipal Corporations (3d Ed.), § 21.43. But Act 367 goes beyond a mere repeal of Ark. Stats., § 42-3802; the first section of the 1957 act reads as follows: ‘ ‘ Hereafter, the city council or board of managers of any city or incorporated town shall have the authority, by ordinance, to regulate the operation of businesses within such cities or towns on Sunday.” Section 2 of the act then repeals the state statute on the subject.

It is clear that the General Assembly, in enacting the 1957 law, intended (a) to repeal the general state statute requiring all retail businesses to close on Sunday and (b) to leave unimpaired the power of cities and towns to regulate the doing of business on Sunday within their corporate limits. It follows that there was no break in the continuity of the city’s authority and therefore no need for the city council to go through the formality of re-enacting its 1956 ordinance, which presumably still represents its will in the matter.

The authorities are uniform in holding that existing city ordinances are not affected by the repeal of the state enabling act if the repealing statute simultaneously re-enacts the provisions of the original law. Allen v. City of Davenport, 107 Iowa 90, 77 N. W. 532; People v. Brennan, 142 Misc. Rep. (N. Y.) 225, 255 N. Y. S. 331. As McQuillin puts it in § 21.46 of his treatise: “Accordingly where pursuant to statute an ordinance is passed and subsequently the statute is repealed but reenacted, the ordinance remains unimpaired. The statutory change does not have the effect of annulling the ordinance passed under the former identical grant of authority.” Of course the new statute need not be in the exact language of the old; the decisive question is whether the legislature has manifested its intention to keep in force the relevant portion of the original law. State v. Prouty, 115 Iowa 657, 84 N. W. 670. In the case at bar we find no reason to doubt that this legislative intention existed. In drafting Act 367 the General Assembly obviously could not accomplish its twofold purpose by a verbatim re-enactment of the existing state Sunday law, for the mandatory state-wide .application of the old act was to be rescinded. In the same breath, however, the legislature expressed its desire to leave undisturbed the delegated authority by which each municipality might regulate Sunday businesses according to its own preference. That Section 1 of Act 367 begins with the word “hereafter” evidently does not mean that a new power is being created, for the municipality’s authority undeniably existed already. Rather, the use of “hereafter” merely implies that a power formerly exercised concurrently by the state and its municipalities is in the future to be vested in the cities and towns alone. We find no good reason in logic or in law to require the city of Little Rock and all other municipalities to reassert their views by needlessly re-enacting ordinances already on the books.

Motions denied.

Harris, C. J., and Ward, J., dissent in part.

Paul Ward, Associate Justice

(dissenting). I do not agree with the majority that the injunction remained in force after the effective date of Act 367 of 1957.

I do not think that the right to “regulate” as the word is used in Section 1 of Act 367 carries with it the right to prohibit (the opening of grocery stores and other stores on Sunday) as must be applied in Ark. Stats. § 41-3802.

My conclusion is therefore that if Little Rock hereafter wants to “regulate” business houses on Sunday, it will be necessary to pass a new ordinance to that effect.

Practical considerations lead to this same conclusion. Neither this court nor any other court should be burdened with the task of attempting to reconcile all of the divergent views on this question. Now that the slate has, so to speak, been wiped clean by said Act 367 any new attempts at regulation should, I think, be enacted by the people of the affected municipalities.

Harris, C. J., joins in this dissent.


author: George Rose Smith, J.

text:
    Bradley v. Keith.
    5-1312
    305 S. W. 2d 134
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      S. L. White, for appellant.

      Talley & Owen, by Gene Worsham, for appellee.
   George Rose Smith, J.

This is an appeal from an order setting aside a. default judgment rendered at the preceding term of court. The appellant contends that the proceedings below did not comply with the statute under which judgments may be vacated after the lapse of the term.

The action was brought by the city of Little Bock to condemn five acres of land. The complaint alleges that the appellant Bradley has a deed to the land and that the appellee Keith has a tax title to it. Bradley filed an answer asserting title to the property, but Keith failed to file any pleading in the case. At a preliminary hearing, with all parties present by their attorneys, it was agreed that the land was worth $1,000 and that the city might deposit that amount in the registry of the court and take possession of the property. The court’s preliminary order recited that there was a dispute between the defendants as to the ownership of the land and directed that the cause be placed on the regular docket for a determination of that dispute.

At the trial on June 5, 1956, Bradley was present by his attorney, but Keith failed to appear. The court, after hearing evidence, found that Keith was entitled to the amount he had paid for his tax deed (which appears to be void on its face), with interest, and that Bradley was entitled to the rest of the fund deposited by the city.

The next day Keith filed an unverified motion to set aside the judgment, asserting that only a pre-trial conference had been scheduled for June 5 and that his attorney had been prevented by illness from being present. This motion was not presented to the court until after the lapse of the term. The court considered the motion at its next term and, acting only upon a statement of counsel, made a finding of unavoidable casualty and vacated the judgment.

The appellant is correct in his insistence that the record does not support the court’s action. After the lapse of the term the court no longer had discretionary control over its judgment, which could then be vacated only in accordance with the statute that applies after the expiration of the term. Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. That statute requires that the complaint to set aside the judgment be verified by affidavit, Ark. Stats. 1947, § 29-508, and we have repeatedly held that this requirement is jurisdictional. Pattillo v. Toler, 210 Ark. 231, 196 S. W. 2d 224; Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583; Kirby v. Milum, 218 Ark. 106, 234 S. W. 2d 518. Although the requirement may be satisfied by the introduction of sworn testimony at the hearing on the motion, Pinkert v. Reagan, 219 Ark. 822, 244 S. W. 2d 961, the trouble here is that no proof under oath was offered to sustain the motion to vacate the judgment. We do not doubt the statement that one of Keith’s attorneys was ill on June 5; but if an unverified written motion is insufficient to invest the court with power to act after the term, the same holding must be made with respect to an unsworn oral statement of counsel.

Reversed.


author: Paul Ward, Associate Justice. Sam Robinson, Associate Justice

text:
    Simmons v. State.
    4873
    305 S. W. 2d 119
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      Ovid T. Sivitzer and W. P. Switzer, for appellant.

      Bruce Bennett, Atty. Geni.; Thorp Thomas and Clyde Calliotte, Asst. Attys. Geni., for appellee.
   Paul Ward, Associate Justice.

Appellant, a Negro man 63 years old, was convicted of murder in the first degree for the slaying of George Wells on the early morning of October 20, 1956. The deceased and another white man named Fred Watkins were discovered by appellant in a car with a Negro woman, Hattie Mae Williams, parked near the house where appellant and his family lived. Circumstances later developed left no doubt that the white men and the Negro woman were engaging in a prolonged orgy of drinking and immoral conduct.

When appellant approached the car one of the men called him a revolting name and when he started to return to his house he was again accosted by one of the white men. Thereupon the parties in the car drove away and appellant, so he says, thought they had left. Appellant then got his shotgun and started to hunt squirrels (he says) but in a short while he discovered the same three people parked by the side of the road approximately one-half mile from appellant’s home. There he saw one of the men and the Negro woman engaged in sexnal intercourse. Appellant decided that he was going to call the law and returned to his home and got his automobile in order to drive to the nearest telephone. In going to the telephone it was necessary for him to pass along that portion of the road where he had last seen the people above mentioned. % Finding the party car at or near where he had just previously left it, appellant drove by. As he proceeded along the road the other car forced him to stop. Again there was abusive and threatening language and appellant shot the deceased.

When shotgun shells picked up at the scene of the shooting were found to match appellant’s shotgun he admitted to the sheriff that he had killed the deceased and also the other white man and the Negro woman. Later he signed a written confession which was introduced in evidence and is contained in the record. Appellant also took the witness stand in his own behalf. More than a half dozen witnesses some of whom had known appellant for a quarter of a century and among whom there were a school teacher, a groceryman, a contractor and a farmer, testified that he had a good reputation as being a quiet and peaceable citizen and “a good man in the community.”

For a reversal or modification of the judgment of the trial court appellant makes one primary contention, and that is that there is no substantial testimony in the record to show that the slaying of George Wells by appellant was done with deliberation and premeditation. After a careful review of all of the testimonjr in the record and of the many decisions of this court relative to the point in issue we have concluded that appellant is right in his contention.

There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation eonld be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree.

Appellant testified in substance: I live about three miles southwest of Crossett on the Sulphur Springs road. On the early morning of October 20, 1956 I heard a noise and saw a car parked on the road near my garden. "When I was within 14 or 15 feet of the car a man jumped out and said: “Hey, where in the hell you going, you goddam son-of-a-bitch, don’t come any farther. Co back. ’ ’ I was returning to my house when the man said “you son-of-a-bitch, you come out here,” but I did not do so. There were three people in the car and I could tell one was a colored woman. When the car drove off in the direction of Crossett I thought they were gone. I had planned all night to go squirrel hunting and I had told Mr. Houston Childress I was going squirrel hunting. So I went into the house and got my shotgun and started out to where I had seen the squirrels’ signs. Later on I saw the same car parked in the road again. One man was backed up against the hood of the oar and the other man and the woman were behind the car on the ground in the act of intercourse. I saw them but I did not want to come in contact with them so I went around the car, into the thicket and then on up to my house, and I said to myself “I am going to call the law. Those folks are going to do something to me.” When I got into my car and was coming down the road I found that their car was no longer where I had last seen it. However a little further down the road I heard their car and they were parked to where I could barely get by. Just as I “squeezed” by their car started up — I held the center of the road “and I seen they were driving past and I pulled over and they just whipped over right ahead of me and stopped. ’ ’ I pulled over to the left, and one man jumped out of the car — the driver — and got right in the road said “stop, stop, you goddam son-of-a-bitch. Where are you going?” I said, “I am going to call the law to you all.” He said, “Yeah, you are going to call the law goddam you, don’t you know I am going to kill you?” “Nothing to do but protect my life. This other man said, ‘kill the son-of-a-bitch, kill him.’ He got up and I don’t know whether it was a two-door or a four-door, and he came up and stuck his head over the front seat of the car and I shot them both.” On cross examination appellant admitted to Sheriff Courson that he killed the deceased.

On November 5, appellant made and signed a written confession but it does not differ in any material way from his testimony as set forth above.

The testimony shows that the two white men and the Negro woman had with them in the car several cans of beer, some of which had been opened and some had not.

This court has on many occasions had the opportunity to consider the importance of the elements of premeditation and deliberation in connection with murder in the first degree. In the early case of Burris v. State, 38 Ark. 221, this court said: “. . . , in order to convict the defendant of murder in the first degree, it is not sufficient to barely prove the killing. The State must also prove, beyond a reasonable doubt, that the killing Avas done willfully, deliberately, maliciously, and with premeditation of mind.” It Avas said in Simpson v. State, 56 Ark. 8, 19 S. W. 99: “An unlawful killing may be presumed murder, but it will not be presumed murder in the first degree. The burden of proving it so lies on the Commonwealth.” The court in the case of Ferguson v. State, 92 Ark. 120, 122 S. W. 236, announced the rule this AAmy:

“When the fact of death alone is proved, the presumption is that the crime is murder in the second degree ; and, before it can be determined that the crime is murder in the first degree, it is incumbent on the prosecution to prove further, by evidence, that the killing was done with premeditation and deliberation. The premeditation cannot be inferred from the fact of death, but there must be evidence of a prior intention to do the act of killing in question.”

In the case of Harris v. State, 119 Ark. 85, 177 S. W. 421, the appellant was convicted of murder in the first degree and this court reduced it to murder in the second degree. Appellant, a Negro, was at a party or dance when trouble arose, a fight ensued and he killed one Johnny Daniels. This court in recognizing that premeditation was an indispensable element of murder in the first degree stated that it need not exist for any particular length of time, but that it must be shown to exist. The court also took into account the element of provocation, stating: “True, the provocation was not sufficient to justify the extreme measures to which appellant resorted, and it was not sufficient to reduce the killing from murder to manslaughter; but it was sufficient to reduce the homicide from murder in the first degree to that of second degree.” Provocation to a considerable degree was present in the case under consideration.

This court in the case of Stanley v. State, 183 Ark. 1093, 40 S. W. 2d 415, again reduced a conviction for murder in the first degree to second degree, giving as the principal reason that “the killing appears to have been the result of a sudden affray or row provoked and brought on by the deceased in the serving of appellant with a bowl of chili that he had ordered.” There was a conflict in the testimony regarding how the killing occurred but the court took the view that it was one continuous difficulty and altercation, provoked by the deceased. In the case under consideration we adopt the language which the court used in reaching its decision in the Stanley case, to-wit: “(We) have concluded that, under the circumstances and according to the undisputed testimony the killing could not have been murder in the first degree, and that the evidence is insufficient to support a conviction for a greater offense than murder in the second degree . . .”

In the case of Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, the court considered the conviction of appellant for murder in the first degree and reduced it to murder in the second degree. Blake was a tenant on the farm of Brad Polk and a difficulty arose between them regarding an accounting! The testimony showed that there had been a disagreement and there was also testimony that threats had been made. The killing was not disputed. The facts regarding the issue here considered are, we think, comparable to the case under consideration. In reducing the degree of the conviction,' the court said: “We have concluded that, while this testimony is sufficient to support a verdict of murder in the second degree, it is not sufficient to support a verdict of murder in the first degree. We think there is lacking that deliberation and premeditation required-to constitute the higher degree of murder.”

We think the facts set forth in the case of Porchia v. State, 196 Ark. 1039, 120 S. W. 2d 700, are as favorable to sustain the verdict of murder in the first degree as they are in the case under consideration. The appellant, a Negro, was convicted of murder in the first degree for killing a white man. The evidence shows that the deceased had been drinking and that he overtook appellant as he was walking along the road. An altercation ensued in which the deceased knocked the appellant down and the appellant wounded him fatally with his knife-. The court said that the only question to be determined was whether the act was premeditated and in holding that it was not this language was used: ‘ ‘ While ordinarily malice is to be implied from the nature of a homicidal transaction and the circumstances attending its commission, yet in the instant case the state’s testimony tends to show that premeditation and deliberation were absent.” Again we think that the language there used in announcing its conclusion is applicable in the case under consideration. The court said: “It is our belief that the ends of justice insofar as penalties can satisfy or appease justice will be met by a sentence confining penalties can satisfy or appease justice will be met by a sentence confining .appellant in the penitenriary for 21 years.” Likewise the language used by this court in Gulley v. State, 201 Ark. 744, 146 S. W. 2d 706, is applicable in the case here considered, where it said: “We think the evidence falls short of showing beyond reasonable doubt that appellant went to James Williams’ home with the intent of killing Louis White.” Neither can we say with confidence that appellant here had any intention of killing the deceased when he got in his car and started to inform the sheriff. In the case of McClendon v. State, 197 Ark. 1135, 126 S. W. 2d 928, we affirmed that it is necessary to “show beyond a reasonable doubt that the killing was the result of malice,” and then the court said: “Certainly it does not show beyond a reasonable doubt that it was the result of deliberation and premeditation.” In that case appellant had seized an as and hit the deceased on the head causing his death. The court, in reducing his conviction of murder in the first degree to second degree apparently relied on the fact that the killing was the result of a difficulty that arose suddenly and continued until the fatal blow was struck, and that the appellant and the deceased, had theretofore been friends.

It is obvious that the line of demarcation in many cases, as in the case under consideration, between deliberation and the lack of deliberation is not easily discernible. It is a safe rule that deliberation must be proven, and beyond a reasonable doubt. In our opinion there is no direct testimony in this case to support the finding that appellant shot the deceased after deliberation and premeditation. Also there is no circumstance which is inconsistent with the direct proof. We are especially impressed by the fact that if appellant had wanted to or had intended to kill the deceased he would have done so when he encountered him the second time. Appellant had his shotgun at that time and he found the deceased in a relationship with the Negro woman which was calculated to infuriate him to the extreme. If appellant had wanted or intended to kill the deceased we can think of no better opportunity for him to have done so than he had at that time. The mere fact that he did not (but went home to get his car so he could drive to a telephone and call the sheriff) necessarily negatives the assumption that appellant got his shotgun, in the first instance, with premeditation and murder in his heart. If the jury concluded appellant was lying about going to call the sheriff, then such conclusion rested on mere conjecture because there is no testimony in the record to sustain it. As we view the record there is no testimony or circumstance to show (and certainly not to show beyond a reasonable doubt) that premeditation and deliberation were present in the mind of appellant when he fired the fatal shot.

Since the evidence is sufficient to support a verdict for murder in the second degree, the judgment will be so modified and appellant’s punishment fixed at 21 years in the penitentiary, and, as so modified, the judgment of the trial court is affirmed.

Justices MoFaddin, Smith and Robinson dissent.

Sam Robinson, Associate Justice

(dissenting). The evidence in this case proves that the defendant killed three people in deliberate, cold-blooded murder. He was tried for one of the murders; the jury found him guilty as charged, and fixed the penalty at life in the penitentiary. In all probability, the life sentence was given instead of death in the electric chair because of the immoral conduct of the three people that appellant shot to death with a repeating shotgun. The trial judge was of the opinion that the evidence was sufficient to send the case to the jury on the question of whether the defendant was guilty of murder in the first degree. Twelve jurors selected with the approval of the defendant, from among the residents of the county where the crime was committed, after seeing all of the witnesses including the defendant, and listening to the testimony, and considering the law as given-to them by instructions of the court, unanimously agreed that the defendant was guilty of murder in the first degree. It is hard for me to see how the jury could arrive at any other verdict if they did what they swore they would do, and that was to try the case according to the law and evidence, and render a true verdict thereon.

In stating that there is no substantial evidence in the record to support the first degree murder verdict, the majority has apparently overlooked and failed to consider important evidence in the record. In fact, the majority does not mention any of the evidence favorable to the State’s case and which goes to prove murder in the first degree, although, in my opinion, the record is replete with such evidence. It appears from the majority opinion that the only evidence considered in setting aside the jury verdict is the testimony of the defendant. To say the least, such testimony can hardly he unbiased. Moreover, the defendant’s own testimony proves him guilty of first degree murder. The majority stresses the fact that there is no direct evidence proving premeditation and deliberation, which are necessary elements of murder in the first degree. A murderer who kills his victim after premeditation and deliberation rarely commits such crime in the presence of witnesses. If the State must produce eye witnesses to such crimes in order to get a conviction, then law enforcement in this State, as to such crimes, is virtually impossible. All the murderer has to do is catch his victim alone, kill him, and then testify there was no premeditation and deliberation. In the case at bar, however, the defendant did not find his victim alone; there were eye witnesses, but the defendant surmounted that difficulty merely by killing the witnesses. He was tried in this case, not for killing his first victim, but for killing one of the witnesses to the first crime.

Now for a consideration of the evidence in detail: On the morning of the 20th day of October, 1956, at about 6:10, Bob Bush, while on his way to work on the Sulphur Springs road about 3 1/2 miles Southwest of Crossett, saw an automobile parked on its proper side of the road. The parking lights were burning on the parked car, and it was headed toward Crossett. As Bush approached the parked car he noticed a man lying in the road near the left door of the ear. Bush slowed down, and as he passed the parked automobile he noticed what appeared to be two injured people in the car. He got out of his automobile and found that the man on the ground was badly injured, or dead. He had been shot with a shotgun. It developed that the man on the ground was wounded seriously, and he died a short time later. Sitting on the right side of the front seat of the two-door parked car was a woman who had been killed by a shotgun blast to the left side of her head. Seated on the right side of the rear seat, directly behind the woman, was a man who had been killed by two blasts from a shotgun; one load of shot had struck him in the left side toward the back, and one load of shot had struck him in the back of the head. Officers were notified and, upon their arrival at the scene of the crime, they ascertained that the man on the ground was Fred Watkins, the dead woman on the front seat was Hattie Mae Williams, and the dead man on the rear seat was George Wells.

The defendant in this case, Frank Simmons, was tried for the murder of George Wells, who was the man sitting on the rear seat of the car where he was killed by being shot twice with a 16 gauge shotgun loaded with No. 6 shot; one load of shot struck him in the side and the other in the back of the head.

The defendant lived on the Sulphur Springs road, a little over one half mile from the scene of the crimes. In the course of the investigation the officers tallied to him concerning the killings; he denied any knowledge of who' might have committed the crimes, but admitted that he owned a 16 gauge shotgun, and had some shells loaded with No. 6 shot. The officers obtained the gun from the defendant and sent it, with other 16 gauge shotguns which they had located in the community, and empty shells found at the scene of the killing, to State Police headquarters at Little Rock to be examined by a ballistics expert in an effort to determine if the empty shells found at the scene of the crimes had been fired from any of the guns the officers had obtained. Upon an examination by an expert it was learned that the empty shells found at the scene of the killing had been fired by the gun belonging to the defendant, Frank Simmons. When Simmons was confronted with this evidence, he admitted killing all three of the people heretofore mentioned.

In his testimony at the trial Simmons attempted to justify- the crimes by asserting self-defense. He testified that Watkins got out of the car and that he (the defendant) thought himself in great danger and gave that as his excuse for killing Watkins. He further testified that Wells leaned forward in the car and he, the defendant, shot Wells. But the defendant gave no explanation for shooting him twice, once in the back of the head and once in the side. The defendant testified that he then became alarmed and ran from the scene of the killing, but returned a short time later, and the woman said to him: “You Grod-dam son-of-a-bitch you kill me;” and then the defendant said, “and I did.”

In my opinion, the circumstances alone are sufficient to support a verdict of murder in the first degree, and when the testimony of the defendant, given in his own behalf at his trial, is considered along with the circumstances, not only is murder in the first degree proved beyond a reasonable doubt, but is proved beyond any shadow of a doubt. Here are some of the circumstances that shed light on the occurrence, as will be hereafter pointed out:

The victims’ car was parked on the shoulder of the road about 1 foot from the ditch on its proper side of the road.

The road is 17 feet wide.

There was ample space for other cars to pass.

Only the parking lights on the car were burning.

The first person the defendant killed was Watkins. When shot, Watkins was standing against the car door, which was closed. His blood ran down the side of the door.

The defendant fired four times, each shot taking effect. He was standing close to the car when three of the shots were fired; three of the empty shells which had been fired from defendant’s 16 gauge gun were found within 4 feet of the left door of the victims’ car.

The back windows were up (closed) on the car in which Wells was sitting on the back seat, and Hattie Mae Williams was sitting on the front seat. ' The windows were not broken. Defendant’s gnn barrel must have been practically sticking through the open window on the left front door. The woman was sitting on the right side of the front seat and she was shot in the left temple.

Wells, for whose murder the defendant was tried, must have turned away when the woman was shot, as he was shot in the left side near the back, and another load of shot hit him in the back of the head.

Although defendant claims he was only going to call the officers and report the immoral conduct of his victims, he placed his shotgun in his car.

Without a doubt he put the gun in his car with the intention of shooting someone. He makes no claim that he was going squirrel hunting when he put the loaded gun in his car.

The persons he intended to kill were the persons he did kill. No one else was involved. This fact in itself is sufficient to make a case for the jury on the issue of first degree murder.

All of the victims of the killings were unarmed.

The following is the defendant’s testimony as to the actual killings: “I went and got my car and cranked up and backed up and came on down. They had done moved from where they were at. I heard the car when it cranked up and I thought sure they were coming again. A little branch down the road, a little bridge, and they were just over that bridge, just barely room enough for a car to pass with a pretty good driver. I squeezed by and just as I got even they cranked up and I just cut across the road coming by and I held the center of the road and I seen they were .driving past and I pulled over and they just whipped over right ahead of me and stopped. I hit my brakes and pulled over to the left, going past them, and one man jumped out of the ear, the man driving jumped out of the car, and got right in the road and said, ‘Stop, stop, you Goddam son-of-a-bitch. Where you going?’ I said, ‘I am going to call the law to you all.’ He said, ‘Yeah, you are going to call the law — Goddam you, don’t you know I am going to kill you?’ Nothing to do hut protect my life. This other man said, ‘Kill the son-of-a-bitch, kill him.’ He got up, and I don’t know whether it was a 2-door or á-door, and he came up and stuck his head over the front seat of the car and I shot them both.” Later, he returned and killed the woman, as above mentioned.

The defendant’s testimony, when viewed in the light of the proven facts in the case, shows conclusively that he did the killing because he was mad; he acted with malice, after premeditation and deliberation. According to the evidence, it was not necessary that he kill any one in order to protect himself. The undisputed evidence shows that the victims’ car was parked on the side of the road, with the parking lights on. There was ample room for other cars to pass. In fact, according to the testimony of the defendant, he had passed the car occupied by those he killed before he ever stopped his car. It was not necessary for him to stop his car at all if he were going to a telephone to report ihe conduct of the victims of his anger. The jury would have been completely justified in disregarding his statement that he was going to a telephone, but, even giving him the benefit of telling the truth on that point, there was nothing to hinder him from continuing on his way to the phone. He was in his automobile, the other car had stopped; he had passed the other car; there was nothing to keep defendant from continuing on his way; he was between the other car and the telephone. The victims of the killings were unarmed; there is no contention that they made a display of any kind of weapon — of course, they could not make such a display because they had no weapon.

It appears from the evidence that this is what happened: The defendant had made arrangements to kill hogs that morning; in all probability, his story about squirrel hunting is made out of the whole cloth, and not a word of truth in it. Ordinarily, a person does not go squirrel hunting for a short period of time and it is not likely that the defendant would go squirrel hunting on a morning when he had made previous arrangements to kill hogs'. The evidence justifies the conclusion that defendant came upon the two men and the woman parked in an automobile on the side of the road. They probably gave him a cursing, and the defendant simply went home, got his shotgun, followed them up and killed them. According to the undisputed evidence, at the time the defendant stopped his car and got out, the victims of his anger were in a car parked on the proper side of the road — on the shoulder of the road only 12 inches from the ditch. The parking lights w.ere burning. According to the defendant’s testimony, he passed the car and there was nothing to prevent him from continuing on his way to a telephone if he were going to a telephone. But, instead of continuing on his way, he stopped, got out of his car, and started shooting. Undoubtedly Watkins was standing in the road, leaning against the door of his parked car when he was killed. He was found in the road at the door of the car, and his blood had run down the door. In order to kill the other two occupants of the car it was necessary that the defendant walk back to. a point where he could stick the shotgun through the open window of the left front door,- because the windshield was not broken and the rear windows of the car were not broken, although they were closed..

A repeating shotgun does not eject the shells to the front. They are ejected to' the side and rear of the one using' the weapon. The empty shells were found within four feet of the left front door of the car. This proves without a doubt that the'defendant was standing right at the front door when he "shot- the woman and Wells. It will be recalled he was' tried' for killing Wells. Not only did the. defendant shoot Wells once, but he shot him twice; either shot would have caused instant death. At that close range a shotgun is the most deadly and destructive of any gun. Wells was shot in the báck of the head and could not have been making any movement toward .the defendant.' The jury was completely justified, by the evidence in the case, in reaching the conclusion that the killing was committed in cold blood, with malice aforethought after deliberation and premeditation. The jury system may not be- perfect, but it is certainly the best system that has ever been devised by man up to this hour. The defendant in this case had a fair trial before a fair judge, a fair prosecuting attorney, and a fair jury in the county in which the crime was committed, where the defendant had lived, all of his life; and he was defended by most able counsel. It is clear from the record that nothing was said or done to arouse passion or prejudice against the defendant in any manner.

The killing of the two men and the woman was so closely connected in point of time as to be a part of one transaction, and hence, all of the evidence relating to the various killings was admissible in evidence. The manner of the killing of the woman in itself shows the defendant’s frame of mind at the time he committed the crimes. He makes no contention that the woman was making any movement or display against him in any manner whatever. In her horror as to the crimes that had been committed, she merely said, why don’t you kill me? This was at a time after the defendant had left the scene and returned, and his reaction to the woman’s question was: “And I did.”, meaning that he deliberately shot her down in cold-blooded murder. He did shoot her down in deliberate, cold-blooded murder, but the circumstances indicate that he killed her before he killed Wells, who was sitting in the back seat. The overwhelming evidence in this case supports the jury verdict and, in my opinion, the judgment should be affirmed. Therefore, I respectfully dissent, and I am authorized to say that Mr. Justice George Rose Smith joins in this dissent.


text:
    Cross v. Rial.
    5-1323
    305 S. W. 2d 129
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      Wood and Smith, for appellant.

      W. H. Howard and D. A. Clarice, for appellee.
   Paul Ward, Associate Justice.

The question presented on this appeal is whether or not appellant waived his right to rescind the purchase of a pickup truck from appellee. On November 26, 1955 appellant purchased a new 1956 pickup truck from W. W. Rial, appellee, who is the sole owner of the Rial Motor Company of Mc-Gehee, Arkansas. After a down payment of $977.48 (consisting of a trade in for $600 and $377.48 cash) the balance of the purchase price amounted to $2,747.52, payable as follows: $791.09 on May 25, 1956; $1,107.83 on November 25, 1956; and $875.64 on May 25, 1957. The Rial Motor Company (appellee) retained title to the said pickup truck in a Conditional Sales Contract executed by it and appellant on the date above mentioned.

Approximately one-third of the total purchase price mentioned above was for a four-wheel drive attachment manufactured and marketed under the trade name “Ñapeo Powr-Pak.” According to the understanding of appellant and appellee the four-wheel drive equipment was installed by the Dealers Truckstell Company in Memphis, Tennessee, at which place appellant was to, and did, accept delivery of the pickup truck after the installation had been made.

A short time after appellant accepted delivery of the picknp truck he noticed that the four-wheel drive equipment was not operating satisfactorily. He made several attempts, by taking the truck to appellee’s garage and to other garages, to correct the defects. Finally after having driven the truck 6,288 miles he voluntarily left it parked on appellee’s premises some time near the end of April, 1956. When the first payment became due on May 25, 1956 under the terms of the Conditional Sales Contract, appellant refused to make payment and appellee brought this action in the circuit court to collect the balance of the purchase price. After hearing all of the testimony the trial judge, sitting as a jury, rendered judgment in favor of appellee and against appellant in the amount prayed for. For a reversal of said judgment appellant prosecutes this appeal.

Much space in the able briefs of both parties is devoted to the question of whether or not, under all of the facts and circumstances attending the purchase of the equipment by appellant, there existed an implied warranty on the part of appellee that the four-wheel drive equipment, when installed on the truck, would operate satisfactorily for the purpose for which it was purchased.

It may be admitted for the purpose of this opinion that the four-wheel drive installation was defective and that it did not do the job for which it was purchased. However it is not necessary, and it would serve no useful purpose, for us to resolve the question above posed, because we have reached the conclusion that the judgment of the trial court must be sustained on the ground, assigned by the trial judge, that appellant waived his right to rescind the sale.

The trial court, after setting out the facts as it found them to exist, made the following conclusion of law:

“Defendant waived any possible right to rescission by executing the contract to purchase the truck at a time when he had actual knowledge of the fact that it had an objectionable feature, by failing and refusing to permit Dealers Truckstell Sales, Inc., to service the- 4-wheel drive accessory, by driving the truck 6,288 miles, by permitting others to work on the truck, -and by requesting Plaintiff to sell the truck for him and stating that he would pay the difference if there was any loss.”

The testimony, which is virtually undisputed, relating to appellant’s waiver of the right to .rescind is essentially and substantially as hereafter set out: Before appellant went to appellee’s place of business to purchase a pickup truck equipped with four-wheel drive mechanism, he had already seen advertisements put out by the Napco Company describing Powr-Pak; At the time he closed the deal with appellee he understood that the four-wheel equipment would have to be installed by the Truckstell Company in Memphis, Tennessee, and; He was aware that the equipment was relatively new, that appellee did not install the equipment, and that appellee would not make a profit on the sale of the extra equipment. It is not disputed that the four-wheel drive mechanism did not function satisfactorily and efficiently, probably for the reason that it was not properly installed. As appellant was driving the truck (with the equipment installed) from Memphis he noticed what he considered to be too much vibration yet he went to appellee’s place of business one or two days later and signed the sale agreement without making any objections. The record shows that appellant on different occasions had repairs made on the truck by the Rial Motor Company and others- but it is not shown definitely on what dates the repairs were made or exactly what objections were made to appellee, if any. It was shown that on.or about the middle of February 1956 the Rial Motor Company installed two universal joints in the truck and that appellant paid for them. Again it is not shown what objections were made to appellee on this occasion. It is' not denied that the truck (with the four-wheel drive equipment) was not functioning properly and that this fact was made known to appellee. The record further discloses that appellee advised appellant to take the truck to Memphis in order that the Truckstell. Company might try to-correct the defects, but-for some -reason appellant failed or refused to do so. Appellee offered to take the truck to the Truckstell Company at Memphis, at his own expense, to have the defects remedied, hut appellant would not consent, giving as his reason (according to Mr. Rial) that “he didn’t believe they could fix it.”

The record does not disclose that appellant at any time, even at the time of the return of the truck to appellee, after having used it 4 months, made the specific contention to appellee that there had been a breach of ivarranty or that he desired specifically to rescind the sale. For instance appellant, at one time, testified: “I told them it was vibrating, it wasn’t right, it was hard to steer, the whole thing, but I never did bring it in and set it doAvn and say, ‘here it is, it has got to be fixed.’ ” On another occasion appellant stated: “. . . the first complaint that I ever talked to them about was the clutch slipping when I got it . . .”

In regard to the offer to take the truck to Memphis for repairs, Mr. Rial testified: Q. “Did he refuse to let you take it up there?” A. “He (appellant said he just wanted to trade the truck and get something he wanted better than, he would like better than the truck.” Moreover appellant offered to reimburse appellee for any loss incident to another trade.

Ark. Stats. § 69-1469 offers a choice of remedies-for the buyer to pursue where there is a breach of-warranty by the seller. The facts disclosed heretofore place this case under the provisions of sub-section (3) of the above statute. This sub-section provides that:- “Where the goods have been delivered to the buyer he cannot rescind the sale . . . if he fails to notify the seller within a reasonable time of the election to rescind ...”

As was held in Logue v. Hill, 218 Ark. 797, 238 S. W. 2d 753, the determination of whether the buyer has-made an election to rescind within a reasonable time depends on testimony. In other words' it presents a question of fact for a jury.

In the case under consideration the determination of the fact question against appellant by the trial judge, sitting as a jury, must be sustained if it is supported by substantial evidence.

It is our conclusion that there is substantial evidence in this case to support the findings of the trial court and its judgment is therefore affirmed.

Affirmed.

Justice Robinson dissents.

Sam Robinson, Associate Justice

(dissenting). It is the opinion of the majority that there is substantial evidence to the effect that Cross did not elect to rescind within a reasonable time, and, therefore, cannot prevail. In support of this finding, the majority cites Logue v. Hill, 218 Ark. 797, 238 S. W. 2d 753; but there is a vast difference between the facts in the Logue case and the case at bar. Logue bought a second-hand tractor in the early spring and used it in planting, cultivating, and gathering his crop, and made no attempt to rescind the purchase contract until after the crop season was over. But, even then, he was allowed to recover for a breach of contract, and he had filed only a general denial to the complaint.

Cross is a farmer, living at Pendleton, near Dumas, Arkansas. In his farming operation he needs a four-wheel drive truck. He had owned several four-wheel drive Jeeps, all of which had proven satisfactory. There is not a scintilla of evidence to the effect that he ever had any trouble with the four-wheel drive mechanism of his Jeeps; his experience with four-wheel drive automotive equipment had been good. He learned that a CMC truck, equipped with four-wheel drive, could be obtained and went to see appellee, W. W. Rial, the local CMC dealer, who was also the dealer in the four-wheel drive equipment. Rial contracted to sell Cross a CMC Pickup Truck equipped with four-wheel drive mechanism. Mr. Rial did not have the four-wheel drive equipment in stock to put on the truck, but arranged to have the truck so equipped in Memphis. He therefore obtained a 1/2 Ton Pickup Truck in Memphis and had it delivered to a concern known as Dealers Truckstell, where the four-wheel drive mechanism was installed on the truck. This four-wheel drive equipment is known as Powr-Pak.

There is no question hut that Rial was the dealer who sold the four-wheel drive equipment to Cross as a part of the 1/2 Ton Pickup. The undisputed evidence is that the only way Cross could obtain the truck equipped with the four-wheel drive was through a dealer; he could not buy the four-wheel drive equipment from Dealers Truckstell, or from the manufacturers of the unit. Rial had literature in connection with the four-wheel drive mechanism. Among other things, this literature states:

“Now, you can go anywhere you want ... in your G-MC Truck equipped with Powr-Pak 4-Wheel Drive.

“You can climb 70% grades . . . plow through axle-deep snow or mud . . . haul heavy payloads over routes where you’d never dreamed a truck could go.

“With its powerful ‘Powr-Pak’ 4-Wheel Drive, the G-MC is equally at home on or off-the-highway.

“Installation of the Ñapeo Powr-Pak requires no frame putting . . . nothing to weaken or distort the chassis. And at trade-in time it’s a simple matter to remove the Powr-Pak and re-install it on your next GMC Truck.

‘ ‘ See following pages for further reasons why it will pay you to own a new G-MC with Powr-Pak 4-Wheel Drive!

“Easiest-steering 4-Wheel Drive on the market because it has constant-velocity joints and proven low-friction advanced design. There’s no highway whip or weave, even at high speeds. Turning radius is same as for standard 2-Wheel Drive models.

“Two-speed Napco transfer case gives 8 speeds forward, 2 in reverse. Allows you to shift in or out of 4-Wheel Drive at any Speed. Mounted on rubber for quiet operation. Ground clearance with full load, is 14 1/4" at-lowest point. •

“6 Easy handling. Handles like a passenger car at all speeds. Short turning radius.

“7 Emplacement parts and service available through évery one of over 3,000 GMC Dealers in the U. S.

. “8 Quiet operation. Transfer case mounted in rubber.

“9 Increased truck life. Because POWB-PAK utilizes engine torque more efficiently engines can ‘loaf’ at low rpm while pulling heavy payloads. No gunning, no racing, no clutch ‘jumping’ or chattering.

“10 PTO optional. PTO conveniently located on top of transfer case takes full engine BPM and torque. Ideal for driving winches, power saws, core and post hole digging, etc. Available at small extra cost.

“11 GUABANTEED . ■. . The Powr-Pak’s outstanding durability makes it possible to offer the industry’s most liberal guarantee.”

■ Bial had the truck equipped with four-wheel drive mechanism and sold the whole thing to Cross as a unit. Later, Bial refused to remove the four-wheel mechanism because it, along with the truck, had been sold by him as one unit. There was executed and delivered to Cross what is called an “Owner’s Service Policy” which, among other things, provides that the dealer will “road-test vehicle for engine, clutch, transmission, axle, brake and steering operations and make necessary corrections.” One of the faults with the truck sold to Cross was that it was very difficult to steer. The undisputed evidence is that it was almost impossible to handle the truck on any kind of rough road. In an effort to overcome this condition, Cross attempted to obtain power steering, but it was not available. • Another serious defect was in the four-wheel drive transmission; in fact, the whole trouble appeared to be in this part, which caused the vibration, making the truck practically useless. The policy is for three months, or 4,000 miles. The truck was returned to the dealer at the end of' the three month period. According to the undisputed evidence the truck, as sold to Cross, was practically worthless. He was never able to use it with any satisfaction whatsoever, and this condition existed from the day he bought it until the day he returned it three months later. He purchased it on the 26th day of November and returned it on the 27th day of February. This is the positive testimony. One witness for Rial testified that he thought the truck was returned in April, but was not positive at all in his testimony on this point. During the time that Cross had the truck he did everything possible to cause it to operate in a satisfactory manner. It was only when he gave up in utter despair that he returned the vehicle to Rial, from whom he purchased it. In these circumstances, I do not believe it can be said that the evidence is substantial that Cross waited an unreasonable time in which to elect to rescind. He was not looking for excuses to avoid his contract, although he had been charged a total of $3,752.04 for a 1/2 Ton Pickup Truck. On the contrary, he was doing everything possible to have the truck put in condition where it could be used. As it now stands, he will have to pay a total of almost $4,000 for a 1/2 Ton Pickup Truck that is practically worthless and has never been suitable for any use whatsoever. It is my view that he has ample grounds for rescinding the contract, and there is no substantial evidence that he did not elect to rescind in a reasonable time. Therefore, I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Mann v. Lowry.
    5-1349
    303 S. W. 2d 889
    Opinion delivered July 1, 1957.

      O. D. Longstreth, Jr., Joseph C. Kemp and Joseph Brooks, for appellant.

      Rose, Meek, House, Barron & Nash, for appellee.
   Sam Robinson, Associate Justice.

Under authority of Act 99 of the General Assembly of Arkansas for 1921, Ark. Stats. § 19-702, a majority of the electors of the City of Little Rock voted to adopt the City Manager form of municipal government. During the campaign on the issue of whether the City Manager plan would be adopted it was explained to the people that the law then in effect authorizing the City Manager system was defective, and, to be workable in a satisfactory manner, amendments would be necessary. Subsequent to adoption of the new form of city government by the people, the 1957 General Assembly, by Act No. 8, amended Act 99 of 1921; but the amendment was adopted prior to an election to select the Board of Directors for the city under the City Manager plan. This suit was filed asking for a declaratory judgment; thirteen points were put in issue in the circuit court. The cause is here on appeal and cross appeal. The view we take as to the direct appeal makes it unnecessary to go into the cross appeal.

The appellants have listed six points which are relied on for reversal, but, when analyzed, there are really only four points at issue. The first three points go to the question of whether, since the adoption of the 1957 amendment, it is necessary that the question of changing to a City Manager form of government be again submitted to a vote of the people. In Point 4, the validity of the emergency clause is attacked, and, by Point 5, it is contended that Section 22 of Act 8 of 1957 constitutes local legislation, and is, therefore, void. Point 6: Appellants contend that misleading statements were made by sponsors of the City Manager plan which render the election on that question void.

The question in which the first three points are concerned is whether the City Manager form of government may be put into effect under the 1921 Act, as amended by the 1957 Act, when the amendment had not been adopted by the G-eneral Assembly .a,t the time the electors of the city voted in favor of the City Manager plan. The mere fact that the Board of Directors had not been selected at the time of the adoption of the 1957 amendment is of no importance. If the 1921 Act could be amended, after the election, on the question of whether the City Manager plan would be put into effect, the fact that directors had not been selected would make no difference. The real issue is this: The electors adopted a City Manager plan of municipal government under an existing law which set out the details of the operation of such manager plan. Now, can the legislature amend the original law under which the plan was adopted by making a change as to those details, and such amendment become effective -without a vote thereon by the people í

The changes, as listed by appellants, are as follows:

“1. Qualification of Directors.

a. Under this original act, any citizen or resident of the community, twenty one (21) years old or older could be a candidate for Director. Under the amended act, no person under the age thirty (30) can be a candidate for Director.

“2. Qualifications of City Manager were completely changed.

a. Under the original act, the City Manager had to be a' resident, citizen, and elector in the community of which he was appointed City Manager.

b. Under the original act, he was required to be a Constitutional Officer.

c. Under the new act an attempt was made to turn him into an employee.

“3. Under the original act certain elected officers were continued in office until such time as their term expired. After which, the said officers were subject to appointment by the City Manager.

These offices:.....

a. City Clerk

b. City Treasurer

c. City Attorney

Under this new act, the terms of these offices are terminated. They are subject to appointment by the Commission.

“4. Method of electing officers under act has been changed.

a. All reference to primary election to be held under Act 99 of 1921, has been eliminated by Act 8.

b. Act 8 provides that the' results of said election shall be certified by the County Board of Election Commissioners to the City Clerk.

c. Act 8 also provides that instead of running at large, that said Directors running for office under City Manager form of government run for numbered positions.

“5. The act also creates new offices.

a. The office of Mayor is created.

b. The office of an Assistant Mayor is created.

c. These offices did not exist under the original act.

“6. The office of Mayor is given an unlimited expense account.

“7. The following commissions which were not exempt from control by the City Manager under the original City Manager Act were exempted from control under the provisions of the new act.

Water Works Commission

Sewer Committee

Airport Commission'

Housing Authority

Board of Civil Service Commissioner

Auditorium Commission

Library Trustees

City Manager Planning Commission.”

Appellants cite O’Brien v. City of Highland Park, 317 Mich. 220, 26 N. W. 2d 891, in support of their contention that, because of the 1957 amendment, the City Manager form of government cannot be put into effect without the people again voting on the question. In that case, the original statute authorized a local option election on the question of placing the city firemen on a civil service basis. Later, the statute was amended to provide for placing policemen on civil service. The Michigan court held that the policemen could not be given the status of .civil service employees without the people voting on that particular question. The court pointed out that the question of establishing a civil service in the police department had never been submitted to the electors as provided by statute, and the court said: ‘ ‘ The rule that an amended statute is to be understood as if it had read from the beginning as amended, must not be applied to defeat the plain intent, of the legislature in amending it. ’ ’ In other words, the Michigan court was of the opinion that the legislature intended that there should be an election on the question of placing policemen on civil service.

In the case at bar, the 1957 amendment makes no radical changes in the 1921 Act. Actually, only one thing is involved, and that is, whether the city shall change from an aldermanie form of government to the city manager system; and the electors have voted in favor of the change. The 1957 amendment to the original act of 1921 goes only to certain details to effectuate a better operation of the act. It is true that under the original act the City Manager was an officer in a branch of the government, and, as such, under the Constitution (Art. 19, § 3), he was required to be a qualified elector. By the amendment he is made an employee, hence he is not now required to be a resident of the city at the time; lie is selected as City Manager; and his salary is, therefore, not limited by the Constitution. This enables the Board of Directors to select a qualified manager, who may be from out of the State, and to fix his salary in accordance with many factors that must be taken into consideration, all of which leads to a better operation of the City Manager plan.

When the 1957 amendment was adopted, it became a part of the 1921 act, the same as if the act, as amended, had been in that form from the date of the adoption of the original act. In McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707, the City of Fort Smith had adopted the Commission form of government under Act No. 13 of 1913. This act fixed the salaries of certain officers at designated amounts. Later, the General Assembly of 1923 amended the original act by raising the salaries. This court said: “In this connection it may be stated that the amendatory provision of the special session of 1923 from and after its passage became a part of the act of 1913, and in its relation to the sections of that act affected by it, stood with reference to future transactions as though the act had originally been enacted in the amended form. Mondschein v. State, 55 Ark. 389, 18 S. W. 383; and Abney v. Warren, 143 Ark. 572, 219 S. W. 748.” See also Kelleher v. French, 22 F. 2d 341.

Appellants maintain that on authority of McClendon v. Board of Health, 141 Ark. 114, 216 S. W. 289, the City Manager is an officer. In the McClendon case, decided in 1919 when there were five members of this court, the City of Hot Springs adopted the provisions of Act 114 of the Acts of 1917, providing for a Commission Manager of Municipal Governments for cities of the first class. The act had no provision as to whether the Commission Manager would be an officer or an employee of the city. This court, by a majority opinion, held that the city manager was an officer. Chief Justice McCulloch and Mr. Justice Frank Smith were of the opinion that the city manager was an employee and not an officer. If the act under consideration at that time (Act 114 of the Acts of 1917) had provided, as does the act under consideration in the case at bar, that the city manager would be an employee and not an officer, the court would doubtless have given effect to that provision of the act by holding that the city manager was an employee.

Appellants further contend that the duties of the manager make him an officer, but it is admitted that all of his acts are subject to the approval of the Board of Directors. The Constitution does not make the manager an officer, and the legislature has specifically provided that he is an employee.- There is no constitutional interdiction which requires the court to overrule the General Assembly by saying that the manager is an officer instead of an employee, as he has been designated by the General Assembly. It is further argued by appellants that, for all practical purposes, the City Manager would occupy the same position as that now held by the Mayor and would have the same duties as the Mayor, and therefore, he is an officer. But there are vast differences, among which is the fact that, in the aldermanic system, the Mayor is elected to office for a definite term by the people and he is answerable to the people only. In the City Manager system, the manager is hired as an employee by the Board of Directors; he must answer to the Board and may be discharged by the Board.

It is argued that the offices of City Attorney, City Clerk and City Treasurer are not abolished by the amendment; that they are constitutional officers and cannot become employees. It is further contended that the amendment conflicts with Ark. Stats. Section 19-907, providing that emoluments of office shall not be changed during the term of office. These contentions are answered by pointing out that constitutional offices are not involved; the offices were created by the General Assembly; they may be abolished at will by the General Assembly, and that is exactly what has been done in the case at bar. When the City Manager plan finally goes into effect the offices involved, as they exist today, will be abolished; the incumbents of those offices will no longer hold the offices as a matter of right. True, the present incumbents may be employed by the Board of Directors to carry on necessary work for the city, but such employment will be solely within the discretion of the Board. In these circumstances, it cannot be said that the offices, as such, have not been abolished.

Next we come to the proposition of the emergency clause. It provides:

“It has been found, and is hereby declared, that the management form of city government authorized under this Act provides an improved and superior method for the administration and government of cities of the first and second class; that many Arkansas cities would be greatly benefited by immediately changing from the aldermanic to the management form of government but that Act 99 of 1921 (and prior amendments thereto) contained defective provisions, cured by the amendments contained in this Act, Avhich grossly impaired the efficiency and desirability of the management plan of reorganization and constituted a deterrent to such municipal reorganizations; that the passage of this Act will make available to cities of the first and second class whose present government is inadequate or inefficient an opportunity to reorganize hereunder and thereby greatly improve the efficiency and economy of their respective municipal governments. Therefore, an emergency is hereby declared to exist and, this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after the date of its passage and approval.”

The legislature has made a finding that cities of the first and second class Avhose government is inadequate and insufficient should have an opportunity to reorganize, and that this is a matter of emergency. Every one may not agree that it is an emergency, but that is not the test. The question is whether reasonable people might disagree. In Cunningham v. Walker, 198 Ark. 928, 132 S. W. 2d 24, in speaking of the validity of an emergency clause, we said: “If fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned, the courts will not interfere. Under this rule the courts determine Avhether the assigned fact is one with respect to which fair-minded and reasonable men would differ. The precedent is analogous to that applied in sustaining the verdict of a jury: if there is substantial evidence it will not be disturbed.”

It is also contended on appeal that Section 22 of Act 8 of 1957 constitutes the amendment local legislation. The section applies to:

“(a) All cities of the first and second class hereafter electing to reorganize under Act No. 99 of the General Assembly of 1921, approved February 10, 1921, as heretofore amended and as amended in this Act; and

“(b) All cities of the first and second class that have not yet consummated a reorganization into the management form of government but whose electors, prior to the enactment of this amendatory Act, may have voted through an election held pursuant to Section 19-702, Arkansas Statutes (1947) Annotated, to reorganize the city under said Act No. 99 as amended.” The fact that Little Rock may be the only city at the present time coming within the category mentioned in Paragraph (b) of Section 22 does not make the act local legislation. The act applies to all cities that may now or may hereafter be either of the first or second class. Therefore, the act is not local. Lemaire v. Henderson, 174 Ark. 936, 298 S. W. 327; City of Blytheville v. Ray, 175 Ark. 1089, 1 S. W. 2d 548; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.

The validity of the 1957 amendment is also attacked on the ground that misleading statements were made to the public at the time the manager form of municipal government was adopted. We have examined the newspaper clippings in the record pertaining to the proposed change and do not find any indication that the public was misled.

Affirmed.

MoFaddin, J., concurs; George Rose Smith, J., not participating.