author: J. Fred Jones, Justice. Fogleman, J.,

text:
    Wilsie WOOTEN v. MOHAWK RUBBER COMPANY and TRAVELERS INSURANCE COMPANY
    76-23
    536 S.W. 2d 734
    Opinion delivered June 1, 1976

      Youngdahl, Larrison & Agee, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving a second injury in the same employment under § 13 (f) (1) of the Compensation Act, Ark. Stat. Ann. § 81-1313 (f) (1) (Supp. 1975).

The appellant employee, Wilsie Wooten, sustained a compensable injury to his back on June 22, 1967, while employed by the appellee Mohawk Rubber Company. That injury, according to medical reports in the record, resulted in a large extruded L-4 disc which was compressing the right L-5 nerve root and it was surgically removed during the first week in August, 1969. When Mr. Wooten was released to return to work following his surgery, he was paid compensation for a 20% permanent partial disability to the body as a whole on the basis of an estimate by his attending physician and he was retained in the employ of Mohawk.

On February 18, 1971, Mr. Wooten sustained another back injury resulting in additional surgery for the removal of a protruding disc at the same L-4 interspace but this time on the left side. Following the second disc surgery Mr. Wooten filed claim for total and permanent disability as a result of his second injury. The Administrative Law Judge and the full Commission awarded permanent and total disability under findings, conclusions, pertinent statutory provisions and award recited as follows:

FINDINGS OF FACT
1. That the claimant suffered a compensable injury on or about June 22, 1967, and that all benefits due the claimant were paid as a result of that injury. The claimant was further rated as having a permanent partial disability of 20 percent as a result of this injury.
2. That the claimant suffered a second compensable injury on or about February 18, 1971, was earning sufficient wages to entitle him to compensation at the rate of $49.00 per week, and is now totally disabled as a result of this injury.
3. That the respondents’ liability for the claimant’s disability benefits for both injuries is limited to $19,500.00 as provided by Section 13 (f) (1) of the Workmen’s Compensation Act. * * *
CONCLUSIONS
The claimant suffered his first compensable injury on June 22, 1976, and received a permanent partial disability rating of 20 percent to the body as a whole as a result of that injury. The claimant was subsequently injured on February 18, 1971, while working for the same respondent, and he is now totally disabled.
Section 13 (f) (1) of the Workmen’s Compensation Act (f) Second Injury. In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
(1) If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability, but the sum total of compensation payable for previous and subsequent injuries shall not exceed 450 weeks or Nineteen Thousand Five Hundred Dollars ($19,500.00).
After considering all of the evidence, we find that the claimant sustained a permanent injury on June 22, 1967, and a subsequent permanent injury^ on February 18, 1971, while working for the same employer, which caused him to be totally disabled.
Therefore, as per Section 13 (f) (1) of the Workmen’s Compensation Act and the case of Mohawk Rubber Company vs. Corbitt, [sic] 256 Ark. 932 (1974) the liability of the respondent is limited to the sum total of compensation payable for both injuries, not to exceed $19,50Cb00.
* * *
AWARD
The respondents shall pay to the claimant compensation at the rate of $49.00 per week for a total disability, beginning February 19, 1971, and are to continue said benefits until the combined total of compensation payable for both injuries does not exceed $19,500.00. * * *

The award was affirmed by the circuit court and on appeal to this court Mr. Wooten contends that “The award of the workmen’s compensation Commission is contrary to the law.” The appellant argues that under the provisions of the Act, supra, the permanent and total disability must be the combined effects of the two injuries. The appellant then quotes from the Act with supplied emphasis and states his contention in relation thereto as follows:

When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability, but the sum total of compensation payable for previous and subsequent injuries shall not exceed 450 weeks or Nineteen Thousand Five Hundred Dollars ($19,500.00).
The issue before this Court is the construction of the second sentence of the quoted portion of the Workmen’s Compensation Act, and in particular, the italicized language of that section.

The appellant is right in his interpretation of the Act but we are unable to say the Commission misinterpreted the Act or failed to properly apply it to the facts in this case. Certainly the Commission could have been more specific in its findings that the total disability resulted from a combination of the two injuries, but the medical evidence is so clear we feel it would be idle gesture to remand for a more specific finding.

Dr. Morris W. Ray attended Mr. Wooten following both injuries. A number of Dr. Ray’s medical reports appear in the record and we paraphrase in brief form the pertinent language of his reports following the first injury and surgery in chronological order by dates as follows: September 4, 1969: absence of back pain but continued numbness in the right lower extremity, weakness in the foot on the right side and occasionally dull aching pain in the right hip. October 2, 1969: absence of pain but occasional cramping in the right calf; -2 range of motion in the back compatible with a postoperative status. Right extensor muscle slightly improved. November 10, 1969: still having occasional cramping pain in the right lower extremity which seemed to shoot out of the end of his toes. Pain intermittent and occurs with severe bending and occasionally with heavy sneezing. No low back pain but unable to do his exercises because of discomfort. Still -1 weakness of the right extensor muscle but released as “clear to return to work,” to return in about three months because of continued residual weakness. December 8, 1969: been back at work for five days, occasional intermittent sharp pain in the low back and pain in the long toe and in the fourth toe at times. Has been somewhat nervous, upset because he had been asked to work more than 40 hours per week; said he believes he could work a full 40 hour week but more than that seemed to tire him excessively; has been somewhat depressed of late. “I do not feel he should be working over forty hours at this time.” February 16, 1970: having some low back pain primarily in low back after work; complained that toes and legs felt weak. Having headaches of late. “He is depressed, unhappy at his job. He states that there is considerable pressure in his job and he is doing different things. He is quite depressed about this.” Right extensor still weak but improving. Slight tenderness over T6 vertebral spinous process but not marked. X-rays within normal limits for postoperative film. “As mentioned, the patient is quite depressed about his work and has talked about quitting work. I have encouraged him to continue to try as I do not feel he will improve symptomatically or emotionally by quitting work. He is given a prescription for Butazolidin alka #40 and fitted with a Taylor three-quarter back brace.” March 16, 1970: back considerably better; been working 40 hours a week and work going better; as long as not behind in his work does all right; occasional cramping pain in the right lateral calf; wearing back brace. Not necessary to see again unless additional difficulty. Will “have approximately 20% disability.” September 29, 1970: complaining of headache, neck pain and interscapular pain, which has persisted ever since accident in 1967; been out of work on strike for about three and one-half months but been back at work about three days. Head, neck and upper back pains extending into the arms and down the back, seem to be increased by working. Back sore but no back pain. “I feel that some of his pain is on a chronic myofascial strain basis, and in addition, there is an element of depressive reaction here. * * * He is to call or write in 6 weeks to let me know how he is doing. Disability 20%:'

On February 19, 1971, the day following Mr. Wooten’s second injury, Dr. Ray reported that Mr. Wooten returned stating that he had been doing fairly well and had missed no time from work because of his back trouble until about three months ago. Had been transferred to a heavier job and when throwing a tire onto a conveyor belt, experienced rather severe low back pain but kept working until the previous day, February 18, when he threw another tire onto the belt and felt severe right lower extremity pain. Upon examination Dr. Ray found muscle spasm, slight limitation, etc. He placed Mr. Wooten on conservative treatment and when he failed to respond, he was hospitalized on November 17, 1971, and Dr. Ray reported as follows: “the patient was taken to surgery on the second hospital day, and at that time a partial hemilaminectomy at L-4 and L-5 left was performed, with removal of a protruding HNP [herniated nucleus pulposus] at the L-4 left interspace.” The subsequent medical reports in the record pertain to Mr. Wooten’s postoperative course following the second operation. His nervous condition worsened and that was the primary basis for his permanent total disability.

We have had occasion to consider section 13 (f) of the Compensation Act in at least three cases. Davis-Stearns-Rogers Const. Co., 248 Ark. 344, 451 S.W. 2d 469 (1970), involved a second injury in different employment under 13 (f) (2), rather than in the same employment under 13 (f) (1) as in the case at bar, but our reasoning is applicable here. Davis had sustained a series of accidents each resulting in small percentages of permanent disability but totaling in the aggregate 75% to the body as a whole. Following subsequent injury he became permanently and totally disabled and the Commission, relying on O. K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967), awarded compensation for permanent total disability without credit or regard to the permanent disability occasioned by the previous injuries. The circuit court held that the evidence before the Commission was insufficient to sustain the Commission’s award and the circuit court fixed compensation based on 15% disability to the body as a whole. We reversed the circuit court judgment and remanded with directions to remand to the Commission for a determination of a proper award in accordance with our opinion, which was in pertinent part as follows:

The statute here involved, Ark. Stat. Ann. § 81-1313 (f) (2) (ii), provides:
If the subsequent injury is one that is not scheduled under section 13 (c), the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.
It appears that the Commission had here taken the view that, if the employee is capable of gainful employment, the subsequent employer must take the employee as the employer finds him and that for purposes of compensation, the Commission may disregard previous disabilities. That is neither our understanding of the statute above, nor of our holding in O.K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967).
Our understanding of Ark. Stat. Ann. § 81-1313 (f) (2) (ii), is that if Davis’ prior disabilities are a contributing factor to his present total permanent disability, then Stearns-Rogers Construction Co., as a subsequent employer, is not liable for 100% of the total permanent disability but only for that degree which would have resulted had the prior disability not existed.
The reason for the apportionment of liability for compensation for permanent disability between prior and subsequent injuries is stated in Larson Workmen’s Comp. Vol. 2, § 59-31 as follows: * * *
Neither do we interpret our opinion in O. K. Processors, Inc. v. Dye, supra, as holding to the contrary. In that case we held that the degree of disability resulting from the subsequent injury was a question of fact for the Commission. In so holding we partially quoted from Larson Workmen’s Comp., Vol. 2, § 59-42. * * *

In Intl. Paper Co. v. Remley, 256 Ark. 7, 505 S.W. 2d 219 (1974), the injured workman sustained an injury to his hand in 1934 before Arkansas even had a workmen’s compensation act and 34 years before obtaining the different employment in which he sustained another injury to his hand in 1971. The first injury resulted in a 20% permanent partial disability to his hand and his 1971 injury resulted in an additional 15% permanent partial disability to the hand. The Commission awarded compensation for the entire 35% and on appeal it was insisted that the respondent-appellant was responsible only for the 15% disability suffered in the respondent’s employ and, after quoting the statute, § 81-1313 (f) (2) (Supp. 1973), we said:

[T]he appellee’s recovery for the functional loss caused by the second injury cannot, under the statutory language, include the functional loss caused by the first injury.

As already noted, the two above cases as well as the O. K. Processors case cited in Davis were subsequent injuries resulting in permanent disability while in the employ of different employers and fell under § 81-1313 (f) (2) rather than in the employment of the same employer under (f) (1) as is the case at bar, and as was the situation in Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974). In Corbitt v. Mohawk, Corbitt became permanently and totally disabled from the combined effects of two successive and compensable work related back injuries while employed by Mohawk, but in mat Case the Commission specifically so found. The Commission in applying the provisions of § 81-1313 (f) (1) in Corbitt, awarded permanent total disability benefits but limited recovery to $19,500 as the maximum benefits payable under the Act. The circuit court affirmed and the primary contention on appeal to this court was that § 81-1313 (f) (1) was unconstitutional in that it attempted to limit recovery for permanent total disability; whereas, § 81-1310 (c), having to do with total permanent disability as a result of a single accident, is not so limited as to payment. We held the statute constitutional and in affirming the judgment we remarked on the philosophy behind such statutes as being to encourage industry in employing and retaining in employment physically handicapped persons. Of course, as already pointed out, the Corbitt case differs from the case at bar in one primary respect. As stated in Corbitt, the Commission found “the appellant was permanently and totally disabled from the combined effects of two successive and compensable work related back injuries [italics supplied].” In the case at bar the Commission simply found “The claimant was further rated as having a permanent partial disability of 20 percent as a result of this [first] injury.”

We are of the opinion that the only logical interpretation to be placed on § 81-1313 (f) (1) is that the permanent total disability must result from the combined effects of first and second injuries. The statute by its plain language only applies when there is some degree of permanent disability resulting from the first injury. The entire subsection (f) as to second injury only applies “where a permanent disability existed prior thereto.” An injury which does not result in some degree of permanent disability simply is not within the purview of § 81-1313 (f).

As we interpret the language in the Commission’s decision, it did find that Mr. Wooten’s permanent total disability was the combination of the disabilities he suffered as a result of both accidental injuries as was the case in Corbitt v. Mohawk, supra, cited and relied on by the Commission. There is substantial evidence to sustain the Commission’s findings and award and the judgment must be affirmed.

Affirmed.

Fogleman, J.,

would remand to the circuit court with directions to remand to the Workmen’s Compensation Commission for a clarification of its findings of fact.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Benjamin Cole LUCKY v. EQUITY MUTUAL INSURANCE CO.
    76-7
    537 S.W. 2d 160
    Opinion delivered June 1, 1976
    [Rehearing denied June 28, 1976.]

      Spencer & Spencer, for appellant.

      Shackleford, Shackleford & Phillips, for appellee.
   Conley Byrd, Justice.

Involved on this appeal is whether a renewal certificate of automobile liability insurance or an endorsement covering a substitute vehicle constitutes insurance “delivered or issued for delivery” within the meaning of the Uninsured Motorist Statute, Ark. Stat. Ann. § 66-4003 (Repl. 1966). The trial court held that a written rejection of uninsured motorist insurance by appellant Benjamin Cole Lucky on January 5, 1966, was an effective rejection through the 16th six months renewal of the policy on January 5, 1973, and awarded summary judgment to appellee Equity Mutual Insurance Co.

The record shows that prior to January 5, 1966, appellant carried uninsured motorist insurance on his 1960 Ford pickup. On that date he signed a rejection of uninsured motorist insurance and was issued automobile liability insurance by appellee, Policy No. AF 701684, for the period “from 1-5-66 to 7-5-66 12:01 A. M.” Thereafter, appellee issued a renewal certificate every six months which would extend appellant’s coverage upon the payment of the premium for an additional six month period. Each renewal certificate identified the automobile liability insurance as being Policy No. AF 701684. Effective October 1, 1971, appellee issued a non-premium endorsement showing that Policy No. AF 701684 had been extended to cover a 1964 Ford pickup that was substituted for the 1960 Ford pickup in the original policy. On July 3, 1973, appellant received injuries in an automobile collision with an uninsured motorist. When appellant brought this action under the uninsured motorist provision of his wife’s policy and his own policy, the appellee countered with a motion for summary judgment, which the trial court granted because of the 1966 written rejection.

Our Uninsured Motorist Statute, Ark. Stat. Ann. § 66-4003 (Repl. 1966) provides:

“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

The non-premium endorsement effective October Í, 1971, fails literally within the meaning of the uninsured motorist statute, supra. That endorsement provided liability insurance coverage that had not previously existed on that vehicle “arising out of the ownership, maintenance or use . .. with respect to any motor vehicle registered or principally garaged in this State. ” The automobile insured by that endorsement was, at the time owned by appellant, to be registered or principally garaged in this State, and by the terms of policy No. AF 701684, the existing liability insurance would not have applied to the 1964 model truck without insurance having been “delivered or issued for delivery in this State.”

Our interpretation of the uninsured motorist statute here follows the statutory construction rule that where the enacting clause of a statute is general in its language and purpose, a proviso subsequently following should be construed strictly so as to exempt no cases from the enacting clause which do not fairly fall within its terms, McRea v. Holcomb, 46 Ark. 306 (1885). To accept the construction which appellee would have us place on the uninsured motorist statute would permit one rejection to be effective for any and every automobile that might be substituted by the insured for the original vehicle. Such a construction should not be placed upon a public policy statute that expects uninsured motorist coverage to be issued or rejected any time automobile liability insurance is “delivered or issued for delivery in this State.”

Since the above disposes of the question of the validity of the 1966 written rejection and the trial court did not rule upon a rejection made subsequent to the effective date of Ark. Acts of 1969, No. 333, we do not and need not reach the issue of whether a renewal certificate constitutes liability insurance “delivered or issued for delivery” in this state. Furthermore, neither party has discussed the effect of Ark. Acts of 1969, No. 333 upon that issue.

Appellant suggests that we should overrule our holding in Holcomb v. Farmers Ins. Exchange, 254 Ark. 514, 495 S.W. 2d 155 (1973). We find no merit in this contention. The construction there given to the uninsured motorist statute has become as much a part of the statute as the words of the General Assembly, Merchants' Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W. 2d 406 (1929). Furthermore, even if we should reconsider our holding in Holcomb, supra, the reconsideration could not be applied retroactively to appellant since it involves a matter of contract, Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952).

Reversed and remanded.


author: Frank Holt, Justice.

text:
    James Henry SMITH Jr. v. STATE of Arkansas
    CR 76-12
    537 S.W. 2d 158
    Opinion delivered June 1, 1976

      Harold L. Hall, Public Defender, by: William R. Simpson Jr., Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by the court, sitting as a jury, of two counts of burglary, Ark. Stat. Ann. § 41-1001 (Repl. 1964), and two counts of grand larceny, Ark. Stat. Ann. § 41-3901 (Repl. 1964). He was sentenced to six years in the Arkansas Department of Correction on each charge, to run concurrently, with the further order that he se, e one-third of the sentence before becoming eligible for parole.

Appellant was brought into the police station at approximately 11 a.m. for questioning regarding a till-tapping theft of a cash register in which one of appellant’s companions and appellant’s automobile were implicated. There was testimony that he was orally advised of his constitutional rights on the way to the police station. Upon arrival and before questioning, he was advised again of his rights. He signed a standard rights form at 11:40 a.m. He was told he was a suspect and that they (the police) were looking for a stolen cash register. Appellant signed a consent form to search his automobile. The interrogation stopped while the officers searched the automobile. The officers found a briefcase with broken locks, a tape recorder, a key to a local motel, two keys to another local motel, and a black coat. The papers and a passport in the briefcase bore the name of a customer of one of the motels. Appellant was then interrogated regarding the articles found in his car. At approximately 12:30 appellant gave a written statement about his participation in the crime that led to his possession of the property. He testified that he thought he was signing something about possession of stolen property.

Appellant contends that the court erred in finding that he was properly advised of his rights and in admitting his statement into evidence. The thrust of appellant’s argument is that his statement was not admissible because in the second interrogation he was questioned regarding an entirely new subject matter without being advised and given another Miranda warning that he was a suspect in a burglary and grand larceny investigation. We find no merit in appellant’s contention.

In determining the voluntariness of a statement, this court makes an independent determination based upon the totality of the circumstances and the court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence or “clearly erroneous.” Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975).

Appellant argues that Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), requires a full and complete Miranda warning at the outset of each interrogation and this is especially true where a defendant is being questioned in regards to a new or different incident. We do not so construe Mosley. There appellant was informed of his constitutional rights and then interrogated regarding some robberies. He said he did not want to discuss the robberies and the interrogation ceased. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup-murder. However, he was given full and complete Miranda warnings at the outset of the second interrogation. In the case at bar appellant did not ask to cut off the questioning. Appellant did testify that he said he wanted to speak to an attorney although the police said he did not ask for an attorney. One officer said appellant specifically said he did not want one when asked. There was testimony that appellant was advised of his constitutional rights twice within approximately one hour during which time he signed a standard rights form and a consent to search his automobile. The police ceased their interrogation only long enough to perform a consensual search of appellant’s automobile. Thereafter, appellant made and signed an incriminating statement which was less than an hour after he had been given a Miranda warning and had signed the standard rights form. Appellant was interrogated at the same location the second time by the same officers who had interrogated him the first time. Appellant had completed one year of college.

Where, as here, there was no significant time lapse between the two interrogations; there was no evidence that the police acted in such a way so as to dilute the efficacy of the earlier warnings; he was interrogated by the same officers in the same location as the earlier interrogation; and there was no indication that appellant was so intellectually deficient or emotionally unstable that he had forgotten his constitutional rights had been fully explained to him a short time earlier, we cannot say that the appellant was prejudiced by the failure of the officers to repeat the Miranda warnings or that the court’s finding the statement was voluntary is “clearly erroneous.” See United States v. Hopkins, 433 F. 2d 1041 (5th Cir. 1970); and State v. McZorn, 219 S.E. 2d 201 (N.C. 1975).

Neither do we find any merit in appellant’s assertion that his statement should not have been admitted because he was not told he was a suspect in a burglary and grand larceny investigation. In Hall v. State, 259 Ark. 815, 537 S.W. 2d 155, delivered this date, appellant argued that she was not told she was being charged with murder. There we said “she undoubtedly knew why she was being questioned. The exact charge that would ultimately be made could hardly be determined until the investigation was complete and the information had been submitted to the prosecuting attorney. The trial judge had the advantage of hearing the testimony as it was given. We do not find his decision to be erroneous.”

Affirmed.


author: George Rose Smith, Justice.

text:
    SOUTHERN SECURITY LIFE INSURANCE COMPANY et al v. Betty J. SMITH, Administratrix
    76-25
    537 S.W. 2d 542
    Opinion delivered June 7, 1976
    [Rehearing denied July 6, 1976.]

      Davidson, Plastiras & Home, Ltd., by: Allan W. Home, for appellants.

      Gill, Johnson & Bivens, by: Marion S. Gill, for appellee.
   George Rose Smith, Justice.

This action upon two $10,-000 credit life insurance policies is governed by our decisions in American Pioneer Life Ins. Co. v. Smith, 255 Ark. 949, 504 S.W. 2d 356 (1974); American Pioneer Life Ins. Co. v. Turman, 254 Ark. 456, 495 S.W. 2d 866 (1973); Union Life Ins. Co. v. Davis, 247 Ark. 1054, 499 S.W. 2d 192 (1970); and Life & Cas. Ins. Co. v. Smith, 245 Ark. 934, 436 S.W. 2d 97 (1969).

Here, as in the cases cited, the insured signed applications in which he falsely stated that he was in good health. In fact, he had suffered a heart attack in 1967, after which he was placed upon a program of medication and was told to carry nitroglycerin tablets with him continuously. In December of 1972 he suffered a second attack, an acute infarction, for which he was hospitalized for two weeks. Upon his discharge he was placed upon a program of limited activity, with nitroglycerin and other medication. The two three-month policies of credit life insurance were issued in connection with the renewal of a bank loan on January 18, 1973, only 30 days after Smith’s hospitalization. He re-entered the hospital five days later as a result of recurrent chest pains. He was discharged on February 5 but died two days later from another acute infarction. There is no doubt that Smith was aware of his affliction.

In effect the appellee argues that we should overrule our recent cases and put credit life insurance in a special category. The argument is that since credit life insurers issue policies for short terms without a physical examination, they should be required to take the borrowers “as they come” and in the aggregate, rather than upon an individual basis. That argument overlooks the fact that the system of credit life insurance presumably enables borrowers who are in fact in good health to obtain such insurance at low premium rates. The appellee’s contention, if accepted, would tend to deprive those borrowers of the economical coverage that the system is meant to provide. Moreover, our controlling decisions are based upon a section of the Insurance Code, which we are not at liberty to disregard. Ark. Stat. Ann. § 66-3208 (Repl. 1966).

Reversed and dismissed.


text:
    Dan DUNN d/b/a DAN DUNN ROOFING COMPANY v. Judge BRIMER Jr.
    76-33
    537 S.W. 2d 164
    Opinion delivered June 7, 1976

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      William R. Wilson, for appellee.
   George Rose Smith, Justice.

This appeal is from a $25,-000 judgment for the appellee in an action for personal injuries. The principal issue, presented by the direct appeal, is whether the trial judge was right in submitting to the jury, in the format of AMI Civil 2d, 601 (1974), the appellant’s asserted violation of a federal safety regulation.

Brimer, the plaintiff, was employed by the general contractor as a carpenter at a building construction job in Bald Knob. Dunn, the defendant, was the roofing subcontractor. On the day of his injury Brimer was working several feet above the ground upon a scaffold that was beneath a wide eave. Dunn’s employees were using a ladder that extended from the ground to the edge of the roof, passing very close to the scaffolding. Brimer testified that as he worked from one end of the scaffold to the other it was easier for him to step on and off the ladder than to crawl past it. During one such transit Brimer looked up and thought a bucket of tar was being swung toward him by one of the roofers. Brimer tried to jump aside, but the ladder, which was not fastened in place, shifted its position, causing Brimer to fall upon debris on the ground and break his ankle.

Federal regulations issued pursuant to the Occupational Safety and Health Act of 1970 (29 USCA §§ 651 et seq.) provide that portable ladders shall be fastened and that the area below them shall be kept clean. Dunn, in his contract with the general contractor, had agreed to comply with that Act. The trial judge inserted the regulations in AMI 601, telling the jury that a violation of the regulations is evidence of negligence to be considered with the other facts and circumstances.

Dunn argues that the federal regulations had nothing to do with the case, because they apply only as between employers and employees. Brimer was employed not by Dunn but by the general contractor. Hence, it is said, the regulations had no application.

We cannot agree. Of course, one element in Brimer’s cause of action for negligence is the violation of a duty of care owed by Dunn to Brimer. Restatement, Second, Torts, § 281 (1965). But it is not essential that the duty be owed to Brimer as an employee of Dunn. Dunn’s employees had reason to know that Brimer, in the course of his work, might step onto the ladder in just the way that he did. In fact, he had done so before, as was to be expected in the circumstances. The required duty of care existed.

in that situation the jury might consider, without regard to any employer-employee relationship, whether Dunn’s violation of the regulations was negligence. Prosser points out that “where the statute does set up standard precautions, although only for the protection of a different class of persons, or the prevention of a distinct risk, this may be a relevant fact, having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider.” Prosser, Torts, p. 202 (4th ed., 1971). A case in point is Marshall v. Isthmian Lines, 5th Cir., 334 F. 2d 131 (1964), where the court held that a violation of a regulation that was designed to prevent fires could also be considered as evidence of negligence in a personal injury case.

Dunn’s second point for reversal is that he was entitled to a directed verdict, because Brimer was a mere licensee, to whom Dunn owed only a duty of not wilfully injuring him. The duty in question is traditionally and properly one owed to third persons by an owner or occupier of land. Dunn does not fit that category. He simply owned a ladder, which was negligently put in place by his workmen. His liability is to be tested by the principles that govern negligent conduct, not by those applicable to the passive condition of premises. Tatum v. Rester, 241 Ark. 1059, 242 Ark. 271, 412 S.W. 2d 293 (1967).

On cross appeal Brimer argues that the judgment should bear interest at the rate of 10% instead of 6%, as allowed by the trial judge. For more than a century the interest rate upon judgments was 6%, but in 1975 the legislature increased the rate to 10%, with a proviso that the trial judge “in his discretion” may reduce the rate to not less than 6%. Ark. Stat. Ann. § 29-124 (Supp. 1975). Here counsel submitted a precedent for judgment reciting the 10% rate. The judge reduced it to 6%, explaining in a letter that he understood the legal rate to be 6% in the absence of a contract for a higher rate. No other explanation for the reduction appears in the record. Hence it does not appear that the court exercised its discretion with knowledge of the 1975 statute. Consequently we think that the rate should be fixed at 10%, as the statute provides — not because the trial judge abused his discretion but because he was apparently not aware of the leeway that was open to him. The judgment is modified accordingly.

Affirmed on direct appeal, modified on cross appeal.


text:
    Roberta Z. FENNEY v. William C. FENNEY
    76-51
    537 S.W. 2d 367
    Opinion delivered June 7, 1976
    [Rehearing denied July 6, 1976.]

      Carpenter, Finch & Dishongh, for appellant.

      Wayne R. Foster, for appellee.
   Conley Byrd, Justice.

Appellant Roberta Z. Fenney having been granted a divorce from appellee William C. Fenney appeals from the trial court’s holding that she was not entitled to one-third of her husband’s Air Force retirement pay. We affirm the trial court.

Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides that a wife who is granted a divorce “shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1 /3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, ...”

We do not consider the right to receive retirement pay from the armed forces to be personal property within the meaning of Ark. Stat. Ann. § 34-1214, supra. The right to a pension and retirement pay, not yet due and payable, cannot be assigned, sold, transferred, conveyed or pledged. See In re Marriage of Ellis, 538 P. 2d 1347 (Colo. App. 1975).

Appellant relies upon cases from community property states, such as Ramsey v. Ramsey, 96 Idaho 672, 535 P. 2d 53 (1975), and Miser v. Miser, 475 S.W. 2d 597 (Tex. Civ. App. 1971), to support her position. For the reasons stated in In re Marriage of Ellis, supra, we do not find the decisions from the community property states to be persuasive. In effect, the community property jurisdictions treat armed forces’ retirement pay as alimony; otherwise, it is not collectible, 42 U.S.C. § 659 (Supp. IV, 1974).

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Delmer STRODE v. STATE of Arkansas
    CR 76-17
    537 S.W. 2d 162
    Opinion delivered June 7, 1976

      Erwin L. Davis, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On April 4, 1975, three informations were filed, each charging appellant with the crime of selling intoxicating liquor on Sunday, and each also charged that appellant had previously been convicted of a like off :ise.

On July 1, appellant was tried and found guilty of a first offense of selling intoxicants on Sunday, February 9, 1975. The remaining two informations for alleged offenses on February 16, 1975, and March 2,1975, were consolidated and tried on August 14, 1975. No appeal was taken from the July 1 conviction. The August trial resulted in convictions on both remaining informations, and appellant was fined $500 and sentenced to 15 days in the county jail on each. From those convictions this appeal is brought.

Appellant first alleges error in the trial court’s failure to instruct the jury according to his proffered instruction no. 1. This instruction provided, “If you should find the defendant guilty (of one or more charges) then you should affix his fine (on each charge) at no less than $100 nor more than $500.”

Appellant was charged pursuant to Ark. Stat. Ann. § 48-901 (b) (Repl. 1964), which in pertinent part reads as follows:

Any person who shall sell intoxicating alcoholic liquor on Sunday . . . shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than two hundred and fifty dollars ($250.00), and for the second and subsequent offenses he shall be guilty of a misdemeanor and punishable by a fine of not less than two hundred and fifty dollars ($250.00) and not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months, or both so fined and imprisoned in the discretion of the court or jury. (Italics supplied.)

The State introduced into evidence a copy of the order indicating appellant had been convicted on July 1, 1975, of the offense of selling liquor on Sunday. Appellant contends that since on the date the informations were filed he had not been convicted, the July 1, 1975, conviction should not have been used to enhance his punishment in either case on appeal here.

Appellant was on notice from the time the informations were filed that a prior conviction was charged in each. Appellant obviously was aware of his conviction of July 1, 1975, and of its possible application in any later convictions. While it is not the customary practice for the State to rely on a conviction not yet existent at the time the informations are filed, no prejudice has resulted from such action in this case. Accordingly we find appellant was not denied benefit of notice and the opportunity to prepare and respond accordingly.

It also is noted that the offenses which led to the convictions involved in this appeal occurred on February 16, 1975, and March 2, 1975. Section 48-901 (b), supra, provides for enhanced punishment for second and subsequent offenses, not for second and subsequent convictions.

Appellant next questions the trial court’s exclusion, for cause, of a juror who on voir dire indicated that she thought the sale of beer on Sunday should be allowed. Although she later changed her response, she was rather equivocal about it, and we find the court did not abuse its discretion in discharging her for cause.

Even if it be assumed that the exclusion of this juror was erroneous, an assumption we do not make, we have held that:

* * * “Since a party is not entitled to have any particular juror, the erroneous rejection of a competent talesman is not prejudicial, in the absence of a showing that some biased or incompetent juror was thrust upon him.” Lewis v. Phillips, 223 Ark. 380, 266 S.W. 2d 68 (1954). * * *

Satterfield v. State, 252 Ark. 747, 483 S.W. 2d 171 (1972). Appellant did not make the requisite showing herein.

Appellant’s concluding assignment of error questions the admission of a portion of the testimony of Joe Moreno, the undercover police officer responsible for effecting appellant’s arrest. When asked on redirect examination his purpose for being at appellant’s residence, Moreno replied, “We were also purchasing what we thought were narcotics.” Appellant asserts that this testimony was prejudicial and should have been stricken. However, as was noted by the trial court in response to appellant’s objection at the time, appellant on cross-examination previously opened this line of inquiry. An examination of the record establishes that it was appellant who initially sought to determine Moreno’s purpose for going to appellant’s residence. Appellant cannot be heard to complain of error that he was responsible for inviting. Denton v. State, 189 Ark. 284, 71 S.W. 2d 197 (1934); Anderson v. State, 210 Ark. 548, 197 S.W. 2d 36 (1946); Randle & Wright v. State, 245 Ark. 653, 434 S.W. 2d 294 (1968).

Affirmed.


author: PER CURIAM Conley Byrd, Justice,

text:
    In Re: The Arkansas Criminal Code Revision Commission, Ex Parte
    74-345
    530 S.W. 2d 672
    December 22, 1975
   PER CURIAM

IN THE MATTER OF RULES OF CRIMINAL PROCEDURE. Per Curiam. The movement for reformation of the Arkansas criminal justice system began in 1971 with three workshops to study the American Bar Association’s “Minimum Standards for the Administration of Criminal Justice” and criminal procedure in Arkansas. The workshops were sponsored by the Arkansas Supreme Court, the Arkansas Judicial Council, the Arkansas Prosecuting Attorneys’ Association, the American Bar Association, the Arkansas Bar Association, and the Arkansas Commission on Crime and Law Enforcement. Later in 1971 the General Assembly enacted Act 470 of 1971, expressly authorizing the Arkansas Supreme Court to prescribe rules of pleading, practice, and procedure in criminal cases and proceedings.

Pursuant to Act 470 the Supreme Court, acting by its Chief Justice, and the Attorney General joined in creating the Arkansas Criminal Code Revision Commission. That eighteen-member Commission was selected to provide representation for all concerned groups, professions, institutions, and geographical areas in the state. The Commission was divided into two committees. One was charged with the responsibility of revising the substantive criminal law. That task was completed in 1974 and culminated in the adoption by the General Assembly of Act 280 of 1975, the Arkansas Criminal Code, effective January 1, 1976.

The procedural committee also completed its proposed draft in 1974. In December the Commission petitioned the Supreme Court to adopt the Rules of Criminal Procedure. The Court entered an order fixing a briefing schedule and providing any interested person or group with an opportunity to file objections or suggest modifications. The Bobbs-Merrill Company had co-operated by publishing, without cost to the State, the proposed Rules. Copies had been sent to all attorneys in the state, with an invitation for suggestions. The Rules were also submitted to many groups, including the General Assembly’s Legislative Council Judiciary Committee and its Standing Joint Interim Committee on the Judiciary.

Pursuant to the Court’s briefing schedule suggestions and briefs were filed by the Arkansas Prosecuting Attorneys’ Association, bail bondsmen, and others, including responses by the Criminal Code Revision Commission. All suggestions were considered by the Court, resulting in several amendments to the proposed Rules. All those amendments are on file with the Clerk of the Court.

Pursuant to Act 470 of 1971, and in harmony with the Court’s constitutional superintending control over all trial courts, the Court hereby adopts and approves the proposed Rules of Criminal Procedure, as amended, effective January 1, 1976.

The amendments to the Rules of Criminal Procedure, as proposed by the Arkansas Criminal Code Revision Commission and published by the Bobbs-Merrill Company, are as follows:

1. Rule 2.3 appearing on Lines 21-25 of Page 7 is amended to read as follows:
Warning to Persons Asked to Appear at a Police Station. If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
2. Rule 3.1 appearing on Lines 26-38 of Page 7 is amended to read as follows:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
3. Rule 7.1 (c) appearing on Lines 209-213 of Page 18 is amended to read as follows:
The clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney. Any such information or affidavit shall be indorsed by the prosecuting attorney approving the issuance of the warrant.
4. Rule 11.2 (a) appearing on Lines 47-49 of Page 33 is amended to read as follows:
search of an individual’s person, by the individual in question or, if the person is under fourteen (14) years of age, by both the individual and his parent, guardian or a person in loco parentis;
5. Rule 11.3 entitled “Warning Required to Search” appearing on Lines 55-58 of Page 33 is eliminated. Rules 11.4,11.5 and 11.6 appearing on Lines 59-72 on Page 33 are renumbered as Rules 11.3, 11.4 and 11.5 respectively.
6. Rule 16.2 (e) appearing on Lines 482-485 on Page 45 is eliminated and Comment I (b) on Page 46 is adopted as Rule 16.2 (e). Comment I (c) shall be redesignated as Comment I (b).
7. Rule 17.1 (a) (i) on Lines 6-9 on Page 46 is amended to read as follows:
the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial;
8. Rule 17.1 (a) (ii) appearing on Line 10 at Page 46 and Lines 11 and 12 on Page 47 is amended to read as follows:
any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant;
9. Rule 17.1 (a) (iii) appearing on Lines 13-15 on Page 47 is amended to read as follows: those portions of grand jury minutes containing testimony of the defendant;
10. Rule 17.1 (e) appearing on Lines 43-47 of Page 47 is eliminated from the rule but is reclassified as part of the commentary on Rule 17.1.
11. Rule 17.2 (d) appearing on Lines 63-67 on Page 53 is eliminated as a part of the rule but shall be considered as a comment on Rule 17.2.
12. Rule 23.1 (a) appearing on Lines 118-122 on Page 64 is amended to read as follows:
The court may order consolidation of two (2) or more charges for trial if the offenses, and the defendants if there are more than one (1), could have been joined in a single indictment or information without prejudice to any defendant’s rights to move for severance under preceding provisions.
13. Rule 28.1 appearing on Lines 18-22 on Page 75 and Lines 23-36 on Page 76 is eliminated. In lieu thereof the alternate provision appearing on Lines 37-50 of Page 76 is adopted and substituted as Rule 28.1.
14. Rule 36.1 appearing on Lines 1-9 of Page 84 is amended to read as follows:
Right of Appeal. Any person convicted of a misdemeanor or a felony by virtue of a trial in any circuit court of this state has the right to appeal to the Supreme Court of Arkansas. An appeal may be taken jointly by codefendants or by any defendant jointly charged and convicted with another defendant, and only one (1) appeal need be taken where a defendant has been found guilty of one (1) or more charges at a single trial. There shall be no appeal from a plea of guilty or nolo contendere.
15. Rule 1.6 (e) is added on Page 3 following Line 48 as follows:
“Defense counsel” shall include the defendant in a case, as well as his attorney, whenever obligations are imposed upon defense counsel.
16. Rule 1.7 (d) appearing on Lines 63 and 64 on Page 3 is amended to read as follows:
These rules shall become effective on January 1, 1976.
17. Rule 8.3(c) appearing on Lines 275-277 on Page 20 is amended by adding the following:
In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.
18. Rule 4.4 appearing on Lines 33-49 on Page 13 is eliminated. Rules 4.5, appearing on Lines 50-53 on Page 13 and Lines 54-56 on Page 14, 4.6, appearing on Lines 57-61 of Page 14 and Rule 4.7 appearing on Lines 62-73 on Page 14 are renumbered as Rules 4.4, 4.5 and 4.6, respectively.
19. Rule 13.3 (b) and (c) appearing on Lines 218-225 on Page 38 are eliminated: Sections (d) appearing on Lines 226-236 on Page 38 and (e) appearing on Lines 237-244 on Page 38 and (f) appearing on Lines 245-248 of Page 38 and Lines 249-252 on Page 39 and (g) appearing on Lines 253-263 on Page 39 are redesignated as subsections (b), (c), (d) and (e) of Rule 13.3.
20. Certain amendments made by The Arkansas Criminal Code Revision Commission in its petition for promulgation of Rules of Criminal Procedure after the publication of the proposed Rules by The Bobbs-Merrill Company are also adopted and approved. They are:
I
Rule 1.5 appearing on Lines 29 and 30 of Page 2 is amended to read as follows:
All prosecutions for violations of the criminal laws of this state shall be in the name of the State of Arkansas, provided that this rule shall in no way affect the distribution, as provided by law, of monies collected by municipal courts.
II
Rule 4.1 (a) (ii) appearing on Lines 6-10 of Page 8 is amended to read as follows:
(ii) a traffic offense involving:
(A) death or physical injury to a person; or
(B) damage to property; or
(C) driving a vehicle while under the influence of any intoxicating liquor or drug; . . .
III
The introductory portion of Rule 7.1 (b) appearing on Lines 187-191 of Page 18 is amended to read as follows:
(b) In addition, a judicial officer may issue a warrant for the arrest of a person if, from affidavit, recorded testimony, or other information, it appears there is reasonable cause to believe an offense has been committed and the person committed it. If the offense is a misdemeanor a summons should issue unless:
IV
Rule 7.3 (a) appearing on Lines 232-233 of Page 19 is amended to read as follows:
(a) -The law enforcement officer executing a warrant shall make return thereof to the court before which the accused is brought, and notice thereof shall be given to the prosecuting attorney.
V
Rule 9.2 appearing on Pages 22 and 23 is amended by adding the following subsection:
(e) An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand. If the defendant is required to appear before a court other than the one ordering release, the order of release together with the appearance bond and any security or deposit shall be transmitted to the court before which the defendant is required to appear. This subsection shall not be construed to prevent a judicial officer from:
(i) decreasing the amount of bond, security or deposit required by another judicial officer; or
(ii) upon making written findings that factors exist increasing the risk of willful nonappearance, increasing the amount of bond, security, or deposit required by another judicial officer.
Upon an increase in the amount of bond or security, a surety may surrender a defendant.
VI
Rule 11.2 (b) appearing on Lines 50-52 on Page 33 is hereby amended to read as follows:
(b)search of a vehicle, by the person registered as its owner or in apparent control of its operation or contents at the time consent is given; and
VII
Rule 13.1 (b) and (c), appearing on Lines 154-167 on Page 4 is amended to read as follows:
(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer,particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.
(c) Before acting on the application, the judicial officer may examine on oath the affiants or witnesses, and the applicant and any witnesses he may produce, and may himself call such witnesses as he deems necessary to a decision. He shall make and keep a fair written summary of the proceedings and the testimony taken before him, except that if sworn testimony alone is offered in support of the application, such testimony shall be recorded pursuant to subsection (b) hereof.
VIII
Rule 16.2 (d) appearing on Lines 477-481 on Page 45 is amended to read as follows:
(d) An order granting a motion to suppress prior to trial shall be reviewable on appeal pursuant to Rule 36.10.
IX
Rule 17.1 (a) (vi) appearing on Lines 22-24 on Page 47 is amended to read as follows:
(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.
X
Rule 17.5 (a) appearing on Lines 88-91 of Page 54 is amended to read
as follows:
(a) WORK PRODUCT, Except as provided in Rule 17.1 (a) (i)and (iv), disclosure shall not be required of research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his staff or other state agents.
XI
Rule 19.1 appearing on Lines 139-144 of Page 55 is amended to read as follows:
Subject to the provisions of Rules 17.5 and 19.4, neither the prosecuting attorney, the defense counsel, nor members of their staffs shall advise persons other than the defendant having relevant material or information to refrain from discussing the case with opposing counsel or from showing opposing counsel any relevant material.
XII
Rule 19.7 (b) appearing on Lines 187-189 of Page 57 is amended to read as follows:
(b) Willful violation by counsel or a defendant of an applicable discovery rule or an order issued pursuant thereto may subject counsel or a defendant to appropriate sanctions by the court.
XIII
Rule 32.1 appearing on Lines 31-34 of Page 82 is amended to read as follows:
The circuit court shall require members of petit jury panels to complete written questionnaires setting forth the following information:
(i) age;
(ii) marital status;
(iii) extent of education;
(iv) occupation of juror and spouse; and
(v) prior jury service.
Upon request, such questionnaires shall be made available by the clerk of the court to the defendant or his counsel and the prosecuting attorney. Upon a showing of good cause, additional information may be furnished regarding jurors by order of the court.
XIV
Rule 36.10 appearing on Lines 102-106 of Page 90 and Lines 107-116 of Page 91 is amended to read as follows:
(a) Where an interlocutory appeal is desired on behalf of the state following a pretrial order in a felony prosecution, the prosecuting attorney shall file, within ten (10) days after the entering of the order, a notice of appeal together with a certificate that the appeal is not taken for purposes of delay and that the order substantially prejudices the prosecution of the case. Further proceedings in the trial court shall be stayed pending determination of the appeal.
(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the. trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

Byrd, J., dissents.

Roy, J., not participating.

Conley Byrd, Justice,

dissenting. I object to the adoption of the Rules of Criminal Procedure by this Court for the following reasons.

1. Many of the Rules affect matters of public policy about which teachers, farmers, business men, preachers and church deacons are as qualified to act as are members of this Court. One example is Rule 3.5, which provides:

“Whenever a law enforcement officer has reasonable cause to believe that any person found at or near the scene of a felony is a witness to the offense, he may stop that person. After having identified himself, the officer must advise the person of the purpose of the stopping and may then demand of him his name, address, and any information he may have regarding the offense. Such detention shall in all cases be reasonable and shall not exceed fifteen (15) minutes unless the person shall refuse to give such information, in which case the person, if detained further, shall immediately be brought before any judicial officer or prosecuting attorney to be examined with reference to his name, address, or the information he may have regarding the offense.

The present law on this subject is set out in Ark. Stat. Ann. § 43-432 (Supp. 1973), as follows:

“Whenever a law enforcement officer has reasonable cause to believe that any person found at or near the scene of a felony is a material witness to the felony, he may stop that person and after having identified himself he must advise the person of the purpose of the stopping and may then demand of him his name, address, and any information he may have regarding the felony. Said detention shall in all cases be reasonable and in no event shall such detention be in excess of fifteen (15) minutes.”

Now, obviously, the present law provides a method for examining witnesses under oath, but that harsh remedy is left to the discretion of the prosecuting attorney, an elected official, Ark. Stat. Ann. § 43-801 (Repl. 1964). Under Rule 3.5, supra, the determination of whether a witness has any information regarding a felony and whether such information is necessary for prosecution is left solely to the discretion of a policeman. It looks to me that one does not have to be a lawyer, much less a judge, to know whether such discretion should be vested in just any policeman. In fact, it’s-a matter about which ordinary people are just as capable as I in making such a decision involving their own personal liberties.

Another example of matters involving public policy is Rule 28. Our present law on the subject came to us from the Revised Statutes, Ch. 45, § 169, as compiled in 1838, now codified as Ark. Stat. Ann. § 43-1708 (Repl. 1964), which provides:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Rule 28.1 this day adopted is not nearly as definite as to the time. That Rule provides:

“(a) Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but'not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.”

Rule 28.3 excludes periods of delay resulting from congéstion of the trial docket, from continuances granted the prosecuting attorney and from “Other periods of delay for good cause.”

As can be seen from the foregoing, the present law on speedy trials contains a definite time limitation that can be calculated by any normal citizen; whereas, Rules 28.1, together with the excluded periods in Rule 28.3, virtually leaves the matter of speedy trials up to the discretion of the trial court — it certainly is not a matter that any ordinary citizen can determine from an inspection of the files in the courthouse. (I don’t know what happens to a person held in jail without any charge being made in the circuit court.)

In my opinion, the foregoing Rules (and others too numerous and lengthy to mention) involve matters of public policy, and when this Court uses its “Rule making power” to enact the same in statutory form, it is unlawfully legislating on such matters in contravention of the separation of powers doctrine in Article 4 of the Constitution of Arkansas.

2. In so far as this Court by these Rules attempts to supersede or set aside the laws of this State, its conduct is strictly prohibited by Art. 2, § 12 of the Constitution of Arkansas which provides:

“No power of suspending or setting aside the law or laws of the State shall ever be exercised except by the General Assembly.”

3. The people of this State have historically called upon their legislators individually and lobbied with them publicly to make their wishes known in matters involving public policy. On the other hand the citizens of this State, in general, have frowned upon the personal and political pressuring of the individual members of the judiciary in matters before this Court. Yet, if this Court insists on projecting itself into matters involving public policy, in statutory form, I can see no reason why the individual citizen should not apply the same personal contact and political pressure to the members of this Court that in the past have been applied to members of the legislative department.

Consequently, I suggest that we should stick to the adjudication of controversies in our appellate capacity and leave legislating to the Legislative Branch of our government.

4. Probably my most basic objection to the majority’s construction of its rights and duties under Act 470 of 1971 and its “general superintending control” under Art. 7, § 4 of the Arkansas Constitution is the fear that it leaves this Court in a constantly ready position to enact laws in statutory form without notice and without the shackles of the Initiative and Referendum Amendment. Consequently, with that ability, there need no longer be any worry about whether this Court is messing up the law when it gives an ex post facto type interpretation to a procedural rule, because it can set the rules right the next day with a better and clearer rule.

For the reasons stated, I would deny the petition to adopt these Rules and would suggest that they be referred to the General Assembly for its consideration.


author: PER CURIAM

text:
    In Re: THE ARKANSAS CRIMINAL CODE REVISION COMMISSION, Ex Parte In The Matter of Rules of Criminal Procedure
    74-345
   PER CURIAM

The» Arkansas Criminal Code Revision Commission in their amendments to the Rules of Criminal Procedure as published by the Bobbs-Merrill Company included in their amended Rule 36.10 a subsection (d). This subsection was inadvertently omitted from our Per Curiam order of December 22, 1975. Rule 36.10 is hereby amended by adding thereto subsection (d) as follows:

(d) A decision by the Arkansas Supreme Court sustaining in its entirety an order appealed under subsection (a) hereof shall bar further proceedings against the defendant on the charge.
This amendment shall be effective 30 days after this date.

In Re Rules of Criminal Procedure. Per Curiam. The fourth word in Rule 32.1 is changed from “shall” to “may,” so that the use of the questionnaires becomes discretionary instead of mandatory. The court’s decision to make this change is based upon the recommendation of a majority of the Criminal Code Revision Commission and a majority of the circuit judges.

In Re Model Criminal Jury Instructions. Per curiam. The Honorable Bobby Steel, at his own request, is relieved as a member of the Model Criminal Jury Instructions Committee. The court expresses its appreciation to Judge Steel for his services on the committee.


author: PER CURIAM Fogleman, J.,

text:
    Carolyn Dianne ZACHRY v. STATE of Arkansas
    75-131
    December 22, 1975
   PER CURIAM

After denying appellant’s application to file in this Court a supplemental transcript of the sentencing of Charles Watson Bean, an acknowledged accomplice that testified on behalf of the State at appellant’s trial, appellant filed a petition for reconsideration or a request in the alternative for us to reinvest the trial court with jurisdiction to hear the matter. We are granting appellant’s alternative request upon the condition that she promptly make application to the trial court within 30 days from the date hereof for a new trial.

Fogleman, J.,

dissents.

John A. Fogleman, Justice, dissenting. I feel compelled to decline to join in what I take to be an exercise in futility. The time for filing and presenting a motion for new trial in this case has long since passed. A motion for new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment. Ark. Stat. Ann. § 43-2202 (Repl. 1964). The matter of timely filing and considering the motion is jurisdictional. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279; State v. Neil, 189 Ark. 324, 71 S.W. 2d 700; Delaney v. State, 212 Ark. 622, 207 S.W. 2d 37; State v. Martineau, 149 Ark. 237, 232 S.W. 609; Thomas v. State, 136 Ark. 290, 206 S.W. 435; Incorporated Town of Corning v. Thompson, 113 Ark. 237, 168 S.W. 128. See also, Comment, New Trial in Arkansas on Basis of Newly Discovered Evidence, 4 Ark. Law Rev. 60.

The verdict was rendered on April 12, 1975. The judgment was entered on the same day. A new term of the Circuit Court of Little River County, in which appellant was tried, commenced on the 19th day of May, 1975. Ark. Stat. Ann. § 22-310 (Supp. 1973). The sentencing of Charles Watson Bean took place on May 23, 1975, on which date he entered a plea of guilty. There is no way the trial court can have jurisdiction to entertain a motion for new trial at this late date.

Furthermore, it appears from the motions herein that the matter would constitute impeaching testimony only. Testimony which merely tends to impeach the credibility of a state’s witness is not a ground for a new trial. Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681; Therman v. State, 205 Ark. 376, 168 S.W. 2d 833; Norrid v. State, 188 Ark. 32, 63 S.W. 2d 526; Hayes v. State, 169 Ark. 883, 277 S.W. 2d 36. A case particularly appropriate here is Foster v. State, 45 Ark. 328.

Appellant’s remedy, if any she has, is by post-conviction relief under Criminal Procedure Rule 1, which is presently inappropriate.


author: WlLSHIRE, C. J.

text:
    Jordan v. Walker.
    Coneedebate money. — Where consideration of a contract is Confederate money, the contract is void ab initio.

      Error to Crawford Circuit Court.

    Hon. Thomas Boles, Circuit Judge.

      Clark, Williams <f- Martin, for plaintiff.

      Watkins <?• Hose, for defendant.
   WlLSHIRE, C. J.

This was an action of debt, brought by Sallie E. Jordan, as administratrix of Pleasant Jordan, deceased, against William Walker, in the Crawford circuit court, at the November term thereof, 1866, on a writing obligatory, bearing date March ,4, 1863, for $1,000, with interest at ten per cent.

The defendant interposed one special plea in bar, alleging that the writing obligatory was executed by him to the plaintiffs intestate, in his life time, in consideration of Confederate treasury notes, loaned and advanced by the plaintiff’s intestate to the defendant, and for no other consideration.

The plaintiff replied, confessing the allegation of the defendant’s plea, that the writing obligatory sued upon was executed by the defendant in consideration of Confederate treasury notes, but sets up, in avoidance of the plea, that, although the consideration of the writing obligatory was Confederate treasury notes, it was not made payable in Confederate treasury notes, hut, by the tenor and effect of the writing obligatory, it was payable in lawful currency of the United States, etc.

The cause was submitted to the circuit court, sitting as a jury, upon the issue joined, which, found for the defendant and rendered judgment against the plaintiff.

The plaintiff moved for a new trial; the court below overruled the plaintiff’s motion, and he brought error.

We deem it unnecessary to notice the motion for a new trial. The question of the illegality of the contract presented by defendant’s plea, stands confessed by the plaintiff’s replication.

The admission, by the plaintiff’s replication, of the illegality of the consideration of the writing obligatory sued upon, brings this case within the ruling of this court in the case of Latham v. Clark, decided at the last term; 25 Ark., 574. The consideration being illegal, the contract was void ah initio, and the courts will not aid in its inforcement.

The judgment of the court below is, in all things, affirmed.


author: IIak-risox, J.

text:
    Harvey v. Rose.
    FERRYMEN — Ferrymen, like all other common carriers, are regarded in law as insurers of the property committed to their care, and are responsible for all losses or damages to it, which do not come within the excepted cases of the acts of God and the public enemy.
    Common Carrier — Burden of proof. — As a common carrier, a ferryman is compelled to receive all goods and property offered for transportation, and in such capacity, he is presumed to have charge of it, and the bur-then is upon him to show that he had not such control over it as to invest him with that character in respect to it.
    Responsibility — Where it affirmatively appears that the owner retains the exclusive control of the property, the ferryman is not chargeable if loss occur, as a common carrier or insurer, but is only answerable for actual negligence; and if in such case the loss be occasioned by the willful wrong or negligence of the owner, so that but for it, the loss would not have occurred, the owner cannot recover, except where the direct cause of the loss is the omission of the ferryman, after becoming aware of the owner’s negligence, to use a proper degree of care to avoid the conse--cpience of such negligence.

      Appeal from Cross Circuit Court.

    ÍIon. James M. Hanks, Circuit Judge.

      Watkins <f- Rose, for appellant.
    The instructions given by the court on the motion was manifestly wrong; ferrymen are common carriers. Spring v. Turner, 1 Murphy, 339-, Trent v. Cartersville Bridge Co., 11 Leigh,. 591; Rutherford v. McG-awen, 1 note, 3 McCord,. 17; Gardner v. Green, 8 Ala. 96; Cohen v. líume, 1 McCord, Ifá.; Pomeroy v. Donaldson, 5 Missouri, SO; Smith v. Seward, 3 Barr. 31$.

    “ The law regards ferrymen as common carriers, and has imposed on them the same duties and liabilities, and as soon as a ferryman signifies his assent or readiness to receive a passenger, he becomes liable for his safe transit and delivery, and is-chargeable with any accident occurring except by act of God or the public enemy.” May v. Hanson, 5 Cal. 360; Richards

      v. Fuqua, 88 Miss. 798, and the fact of mutual negligence is no excuse. Albright v. Ferns, 11 Texas, 890; Fisher v. Chisbee, 18 III. SU.

    “ A common carrier is regarded by law as an insurer of property intrusted to him and is responsible for acts against which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted.” Angel on Carriers, sec. 07: Story on Bailments, sec. 4.89.

   IIak-risox, J.

This was an action of assumpsit, to recover from the owner of a public ferry, the value of a mule lost in the course of transportation. •

The defendant pleaded the general issue, and the verdict was in his favor.

The facts, as set forth in the plaintiff’s bill of exceptions are, that the plaintiff applied to cross with his wagon and team, at the defendant’s ferry, on the St. "Francis river. The wagon was loaded with cotton, and the team, vrhieh was driven by a servant, consisted of six mules. Before entering the boat, the person in charge of the ferry directed the two leading, or front span of mules to be detached from the wagon and left on the bank until the next trip of the boat, and ho 'himself unhitched them and fastened them to a stake on the shore, and the wagon was drawn into the boat by the four other mules. As the boat was about leaving the bank, the plaintiff, who was on the boat, spoke to a negro man, the servant of a person crossing at the same time, and requested him to bring the two mules into the after part of the boat, behind the wagon, which he did, and then held them there. The person in charge of the boat made no objection, and gave a direction to separate them from each other, which, however, appears not to have been doue. When the boat had proceeded about one third of the distance across the river, one of- the mules in the rear of the wagon (proven to have been worth one hundred dollars) fell overboard and was drowned.

At the timo of the accident the plaintiff was in the fore part of the boat, assisting in holding the mules, still attached to the wagon. The boat had no railing or balustrades, and was about forty-seven feet in length.

^The court, upon request of the plaintiff, instructed the jury that a public ferryman is a common carrier, but refused to give them the following instructions asked by him:

First. That, as a common carrier, a public ferryman is bound to exercise extraordinary diligence in the protection and preservation of all property committed to him, and is responsible for all accidents and damage to the same, except such as happen by such unavoidable casualty as the act of God or the public enemy.

Second. That a public ferryman is bound to provide a boat of suitable capacity and arrangements to transport, with safety, all property intrusted to him for that purpose, and if he failed in any particular to do so, he is liable for all losses sustained by reason of such failure.

Third. That if the plaintiff’s mule was lost off the ferry boat whilst crossing at the defendant’s ferry, it devolved upon the defendant to prove that it was lost by an accident against which no diligence or foresight on his part could possibly have pi’ovided, and without such proof they must find for the plaintiff

Fourth. That if the defendant chose to receive on his boat, from the plaintiff', more property than it could safely carry, he is responsible for all losses or damages occurring to the same, in the course of transportation, though the same may have been received at the solicitation and request of the plaintiff, unless he has proven a special agreement by the plaintiff’ to assume the risk, and release defendant í rom liability on account thereof.

And it gave the following against the objections of the plaintiff': A public ferryman is bound for the exercise of ordinary diligence only, such as a prudent man would exercise in the discharge of the duties of a ferryman, and if the mule, ■alleged to have been drowned was taken on board the defend•ant’s ferryboat, at the instance of the plaintiff, by his servant, .after the defendant had declined to take said mule on that trip, and expressed his wish and intention to leave it and its fellow behind, to he carried the next trip of the boat, then said mule was taken on by the plaintiff, and at his own -and they must find for the defendant.

Ferrymen, like all other common carriers, are regarded in law as insurers of the property committed to their care, and are responsible for all losses or damage to it, which do not come within the excepted cases of the acts of G-od and the public eneni3r. As a common carrier a public ferryman is compelled to receive all goods and property offered to him for transportation, and when he has received property for that purpose, the presumption is that it is in his charge as a common carrier, and the burden is upon him of showing that he has not had such control over it as invests him with the character ■of a common carrier in respect to it. His responsibility is not modified or diminished by the fact that it was accompanied by the owner, unless it affirmatively appear that the owner did not trust the care of the same to him, but retained the exclu■sive management and control of it himself. When the care ¡and control of the property has not been entrusted to him, but retained by the owner, he is not, if a loss occurs, chargeable as a common carrier or an insurer, but is only answerable for .actual negligence; and if in such case the owner, by his own negligence or willful wrong, contributed to the loss so that, but for it, the loss would not have happened, he will not be entitled to recover, except where the direct cause of the loss is the ■omission of the ferryman, after becoming aware of the owner’s negligence, to use a proper degree of care to avoid the consequences of such negligence. Shear & Red, on Neg., secs. 25, 26; White v. Winnesimmet co., 7 Cush; Powell et al v. Mills et al. 37 Miss., 691; Willett’s Adm’r. v. The Buffalo and Rochester Railroad Co., 14 Barb., 585; Smith v. Smith, 2 Pick. 621.

In the case of White v. Winnesimmet Co., 7 Cush., 154, the Supremo court of Massachusetts say: “If the traveler used the ferry boat as he would a toll bridge, personally driving his horse upon the boat, selecting his position on the same, and himself remaining on the boat, neither putting his horse into the care and custody of the ferryman, nor signifying to him or ixid servants any wish or purpose to do so, and the only possession and custody by the ferryman of the horse and vehicle, to which he is attached, is that which necessarily results from the traveler’s driving his horse and wagon, or other vehicle, on board the boat, ami paying the ordinary toll for a passage; in such case the ferry company would not be chargeable with the full liabilities of common carriers of merchandise. The liability in this case would be one of a different character; and if the proprietors, of the ferry were chargeable for loss or damage, it would be upon a different principle.

“ In reference to persons thus using the ferry, the company have responsible duties to perform, the neglect of which may charge them for the loss of goods and property placed on board their boat, when the loss has been occasioned by their default. It is the duty of a ferry company to provide a good and safe boat, suitable for the business in which they are engaged; and they are required to have all suitable requisite accommodations for the entry upon the same, transportation while on board and the departure from the boat, of all horses and vehicles passing over such ferry.”

Although there may be some doubt if the ferry company, in the case we have cited, by au acquiesence on their part, in the acts and conduct of the owner, did not acquire such possession and custody of the horse and wagon as made them liable as common carriers, it affords a very good illustration of the doctrine we have stated.

The prima fade case — that the defendant accepted the possession and custody of the mule, as a common carrier — established by the fact that he was a public ferryman, and that the mule was put upon his ferry boat for the purpose of being taken across the river, was controverted by other evidence tending to show that the plaintiff retained possession and control of it, and had not committed it to the care and custody of the defendant.

The first and second instructions, refused by the court, as abstract propositions of law, are undoubtedly correct, but were not, according to the views we have just expressed, a correct declaration of the law in respect to the evidence before the jury, and were therefore properly refused.

The third is also objectionable, because it in effect assumes that the mule was delivered to the defendant as a common carrier, a fact clearly controverted in the evidence, and the truth of which it was the province of the jury to determine. Floyd et al. v. Ricks, 14 Ark., 295.

• It is evident, also, from what we have above remarked, that a special agreement is not necessary to qualify a ferryman’s acceptance of property delivered to him for transportation over his ferry, so as to modify and change his liability in respect to it, and the fact that the care and custody of the property was never surrendered to him by the owner, can' be shown by circumstances as well as by direct evidence. The court, therefore, did not err in declining to give the jury the last instruction asked by the plaintiff'.

The instruction given by the court, against the objection of the plaintiff', was manifestly erroneous, and the court should for that reason have given the plaintiff a new trial; and for the error in refusing a new trial, the judgment must be reversed and the cause l’emanded.


author: Gregg, J.

text:
    Allen, Ex parte.

    Jurisdiction — Appeal.—Appeals only lie from one court to another, not from an executive officer to a court.
    ■Registrars. — The duties of registrars are executive, and so far as the right of appeal from their decisions to this court, by a party aggrieved, may be inferred from, or may have been intended to be given by the act of July 15, 1868, providing for the appointment of registrars by the Governor, being contrary to the meaning and intent of the Constitution, no> appeal will lie.

      App'al from Board of Registration, Independence Count;/*

      William Byers, Garland ,j- Nash, English, Gantt English, for appellant.
    Montgomery. Aitornnj General, for Hoard of Registrars.
   Gregg, J.

In the papers on lile in this case, it appears that John F. Allen, a citizen of Ruddle township, in Independence county, on the 16th day of October, 1868, it being a day appointed for registration in said township, applied to John Campbell, who was acting as registrar, to have his name listed as a qualified voter; that he was refused a certificate of registration; he, at the proper time and place, appeared before the hoard of review; alleged injustice had been done him, and prayed there to be listed as a voter in said township. lie there presented proof that he was a “free male citizen” of the township, etc.; facts tending to show that he had not violated his oath of amnesty, and was not disfranchised from other causes, hut the hoard of registrars,'upon their own knowledge, declared he wras not a competent elector, and refused to register his name as such. Allen excepted to the decision; had his exceptions signed by the registrars, as a board; presented his affidavit and prayed an appeal to this court. The registrars certify that they rejected Allen’s application, and granted him an appeal to this court.

The attorney general moves to dismiss the appeal, for want ■of jurisdiction.

The Constitution of this State provides that all male citizens of the United States, over twenty-one years of age, and who have resided six months in the State, shall be deemed electors, unless embraced within certain classes enumerated in section 3, art. 8, State Constitution. Sec. 5, of the same article, requires a certain oath to be taken before registering; and sec. 25, of art. 5, provides that the General Assembly, at its first session, should provide suitable laws for the registration of the qualified electors, and for the prevention of frauds in elections.

Pursuant to these provisions of the Constitution, the General Assembly, by act of duly 15, 1868, provided for the Governor to appoint three registrars for each county, and fixed the time within Avhich they should attend the various precincts for registering electors;' and, also, a time when the board of registrars should meet, at the court house of each county, to review the lists, and pass upon all claims of persons who consider that injustice has been done them, etc.; and, if such board should be satisfied that any person has been improperly registered, they shall strike his name off, or if any one has been improperly refused, they shall list his name, etc. And the act continues, “any person feeling aggrieved, upon the decision of the.board, can, upon application, have the testimony apjdying to the case, and the decision thereon, certified to the Supreme Court of the State, upon the same terms and conditions as appeals from the circuit court.”

This act is not as explicit as it might have been, but, as the Legislature suggested no other mode for a review of the proceedings of the board, we may infer they intended an appeal to this court; and, upon the motion ©f the attorney, the only question is whether or not such appeal will lie ?

Article 4, of our Constitution, declares “the powers of government are divided into three departments — the legislative, the executive and the judicial. No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided for in this Constitution.”

Section 1, Article 7, declares that “the judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, circuit courts, and such other courts, inferior to the Supreme Court, as the General Assembly may from time to time establish.”

In the creation of our courts, provision is made for certain classes of cases to come before them respectively, and when they pronounce the law, they have executive officers at their command to inforce their judgments and decrees; but in the ■ larger mass of duties required of the state executive, and his assistants, it is not necessary to have the courts expound the law before the executive officers proceed to its execution.

It is presumed, and usually is true, that the Legislature so frame the laws that the executive department, and the citizens of the State know their purport, and understand their respective duties; and it is only in cases of doubt in the act, or a failure of the citizen to obey, or of an executive officer to perform his duty, that the action of a court is invoked.

In the early case of Hutt vs. The State, 2 Ark. 258, our court, we think, very properly held that “a State treasurer, auditor, sheriff, coroner, constable and militia officers are executive officers, and all these officers strictly belong to the executive department; * * they constitute the agency or means by which the executive will is carried into effect and the laws inforced.”

The Supreme Court of Ohio held, in reference to an act providing for the assessing of taxes, ote., which act provided that the auditor of State, with the advice of the attorney general, should decide all questions as to the tax levied, the construction of the act, or any proceeding thereunder, subject to an appeal to the Supreme Court, that no appeal would lie, the act being contrary to the intent and meaning of the Constitution, being an attempt to grant an appeal from the ruling of an ex-eetive officer.” Logan Branch Bank, 1 O. State Rep., 432.

The chief executive of a State, aided by such inferior officers-as may be elected or appointed to assist him, carries out and enforces the general laws of the State — they make valuations of property and collect the revenue; make proclamations; issue notices and hold elections; issue process and enforce the judgments, orders and decrees of courts, and, in general, perform acts necessary to a faithful observance of the public laws. In all of which sound discretion and good judgment is necessary to accomplish the end desired; but this exercise of official discretion and judgment in enforcing laws, under the direction of the Legislature, or the orders of courts, is quite different from the judicial determination of questions of law and fact by a legitimate court, and, under our system of government, is committed to entirely different officials. Our courts consider the laws, determine questions litigated and order suitors quieted in or restored to their rights, while executive officers only enforce or execute the laws as they are directed by the Legislature or the courts.

The duties of registrars are executive; they are a part of the-necessary machinery to put in force and carry out a general law. Are there any official duties more purely ministerial than those of going around the county, under the directions of a general law, and making a list of voters and correcting these-lists preparatory to holding an election? Are these officers not as clearly in aid of the chief executive, as is the tax assessor, coroner, or sheriff? The assessor goes around and lists the property — they go around and list the voters; and to answer the argument that they judge of a man’s right to register and vote, it may be said the assessor adjudges the value of all the property he lists; a coroner and his jury considers of the cause of a death, and assesses a bill of costs, etc. Yet all recognize these as executive duties.

It requires determination of mind and sound discretion to fill an executive office, and justly to enforce a law, and if an •officer, in that department is indiscreet, misjudges and does a man an injury, his redress is not by an appeal.

Should the Legislature commit a mistake and enact that, if aggrieved by an error in the assessment of property, the injured party should appeal from this ministerial official direct to this court, could we entertain such an appeal ? certainly not.

"We cannot lose sight of the fact that appeals only lie from one court to another — not from an executive officer to a court. There must be a competent j udicial tribunal to pass upon a case before an appeal can be taken to a higher court. Dunn v. State, 3 Ark., 229.

These officers, whose duty it is to aid in executing a general law of the State, cannot, at the same time, hold a court. The Constitution expressly prohibits any person belonging to one department of the State government from exercising any of the powers property belonging to another. Sec. 2, Art. 4 of the Const.

The departments of the government are kept entirety distinct. The Legislature cannot empower the same man to go out and do ministerial or executive duty, and then come in and sit as a court. It necessarily follows that any law that may attempt to confer judicial powers on an executive officer is unconstitutional; and a law providing that an appeal may be taken to a court from the ruling of an executive officer is equally unauthorized by the Constitution.

It has been argued that this board of registrars has been constituted a court. Neither the Constitution or the law declares it a court. It has neither the organization nor machinery of a court; it lias no clerk, no records, it issues no process, has no officer to execute process, it gives no costs to either party, it renders up no judgment, has neither process or officer to enforce a j udgment, should it attempt to render one; and can we suppose the law-making power intended or attempted to create that a court, and left it wanting in everything that can give life or force to a court?

From the :24th section of the act referred to, which declares that circuit courts shall issue no process to compel a registrar to add to or strike names from his list, it is urged that the hoard is equal in authority to the circuit court, and their action can only he reviewed here, etc. Such provisions in the act, if valid, does not create that board a court, and unwise legislation on the part of the General Assembly, even if it divests the more appropriate tribunal of jui’isdiction, and makes the remedy of an injured party difficult and slow to reach, is not a matter under the control of the courts. It may call for legislative action, hut cannot affect the jurisdiction of the courts,, nor enable them to grant relief in matters not cognizable before them.

As we have no jurisdiction in the case, we cannot discuss-the constitutionality of the oath required, or consider the-difference between the actual rights of a citizen and his political privileges, nor determine how far either can he affected without an infringement of the Constitution.

The motion is sustained and the appeal dismissed.


author: Greog-, J.

text:
    Henry O’Bar, Ex parte.

      Appeal from Board of Registration of Franklin County.

   Greog-, J.

The opinion of the court in the case of John F. Allen, ex parte, determines this case.

The appeal is dismissed.


author: Geegg, J.

text:
    Byers, Ex parte.

      Appeal from Board of Registration of Independence County.

   Geegg, J.

The opinion in the ease of John F. Allen, ex parte, settles all the questions before the court in this ease.

The appeal is dismissed.


author: McCluke, J

text:
    Green & Wilson v. Roane & Bell.

      Equity — Confederate money act — The act of March 5th, 1867, known as the Confederate money act, being unconstitutional, no benefit is derived from it, and a court of equity can grant no relief under it.

      Appeal from Jefferson Circuit Court.

    IIon. "War. M. IIaReison, Circuit Judge.

      Wasscll $ Moore, for appellants.

      Bell £ Carlton, for appellees.
   McCluke, J

The record in this case shows that Green & Wilson obtained a judgment against Julia Roane, in the Jefferson county circuit court, for nine hundred dollars debt, and three hundred and seven dollars and fifty-one cents damages, and that said judgment was affirmed by this court at the December term, 1866, (24 Ark. 210.)

Upon this judgment Green & Wilson sued out an execution and the same was levied on the property of Julia Roane, who, together with one M. L. Bell, gave a delivery bond. After the affirmance of the judgment in the case of Roane v. Green & Wilson, (24 Ark. 210,) by this court, the Legislature passed an act entitled “An act for the relief of persons bound by contract for the payment of Confederate money, or other paper ■currency.” The third section of this act provides that the defendants, in cases where judgments have been rendered against them, may tender the proper amount to be paid according to the rule prescribed in the first section of the act, and enjoin as to the excess of said judgments by a bill in equity.

Under the provisions of said act, Roane and Bell filed their bill and made the necessary tender. At the hearing the Jefferson county circuit court decreed a perpetual injunction as to the judgment at law, save as to the sum of $251 16, and decreed costs against Green & Wilson. Erom this judgment the defendants appealed to this court.

The sole ground for entering a court of equity was to receive the benefit of the act of March 5, 1867. The question presented involves the constitutionality of the act last recited. In the case of Leach v. Smith, (25 Ark. 246,) that act was held to be unconstitutional. It follows, therefore, that the 'decree of the court below must bo reversed. The cause is remanded with instructions to dissolve the injunction and dismiss the bill.

JüDtíJí HaRRISON being disqualified, did not sit in this case.

Hox. Joiix Wuytocic, special Supreme Judge.