author: Ed. F. McFaddik, Associate Justice.

text:
    Cabbiness v. City of North Little Rock.
    5-1392
    307 S. W. 2d 529
    Opinion delivered December 9, 1957.

      Osborne W. Garvin, for appellant.

      Reecl W. Thompson, C. Byron Smith, Jr., and Bean R. Morley, for appellee.
   Ed. F. McFaddik, Associate Justice.

The appellant filed this action against the City of North Little Rock (hereinafter called “City”) and the North Little Rock Boys’ Club (hereinafter called “Boys’ Club”), seeking to recover damages for injuries sustained by Floyd Cabbiness in tbe swimming pool owned by tbe City and operated by tbe Boys’ Club. Wben tbe Trial Court sustained tbe defendants’ demurrers to tbe complaint, tbe plaintiff elected to stand on tbe complaint and final judgment of dismissal was entered. Tbis appeal ensued. Tbe question presented is whether, under tbe alleged facts, either of tbe defendants is liable for tbe injuries sustained by Floyd Cabbiness in tbe said swimming pool.

Tbe complaint and exhibits contain tbe following allegations: (a) that at all times involved, tbe City was a city of tbe first class; and tbe Boys’ Club was a benevolent corporation; (b) that in 1938 the City constructed on its property a building in which was a swimming pool, with diving boards, dressing rooms, etc.; (c) that by written instrument in 1938 tbe City leased tbe said building, swimming pool, dressing rooms, etc. to tbe Boys’ Club; and the relationship between tbe City and tbe Boys’ Club was and is that of Lessor and Lessee; (d) that ever since 1938 tbe Boys’ Club, with knowledge of tbe City, has opened tbe swimming pool to tbe general public on general admission charges; (e) that on June 21, 1954, Floyd Cabbiness, a member of tbe general public and not a member of tbe Boys’ Club, paid 25e admission for tbe privilege of swimming in tbe pool and became a paid patron; and (f) that Floyd Cabbiness received serious and permanent injuries wben, in diving, bis bead struck the bottom of tbe swimming pool.

As the basis of liability of the defendants the complaint contained the following paragraph:

“The defendant City leased the pool and diving board to the Defendant Clnb when it knew, or in the exercise of ordinary care should have known, that the constructing of such a high diving spring-board over such a shallow pool of water was imminently and inherently dangerous, and made the use of said diving board unsafe and dangerous to the people lawfully using the same, wrongfully exposed such users to injury, and the same was at all times a nuisance; that there were no markers in, on, or around the pool showing the shallowness of the water; there were no notices or warnings restricting the use of the diving board, and no warning or notice was posted to indicate the shallowness of the water beneath the diving board; that the Defendant City constructed the swimming pool and diving board, had actual notice and knowledge of the use of the premises by the Defendant Club; it had knowledge of the imminently and inherently dangerous condition then existing at the time of the execution of the lease agreement, the conditions then existing constituting a nuisance, and the Defendant City did nothing thereafter to remove or correct the nuisance it had constructed, and by its lease authorized the Defendant Club to maintain; the Defendant City knew, or in the exercise of ordinary care should have known, that the high diving spring-board over the shallow water was imminently and inherently dangerous, and that the lawful use of same by patrons wrongfully exposed such patrons to injury, and the same was at all times a nuisance. That the injuries to the plaintiff were proximately caused by the creation and maintenance of said nuisance by the Defendant City as Lessor and the Defendant Club as Lessee.”

As heretofore mentioned, the lease between the City and the Boys’ Club was made a part of the complaint. Germane portions of the lease are: that the City leased the premises to the Boys’ Club, agreed to furnish free all necessary electric current, and agreed to maintain fire, hail, and tornado insurance on the building; and that the Boys’ Club agreed to use said building and premises “for legitimate and proper boys’ club purposes, it being understood and agreed tbat the said Boys’ Club shall during the term hereof, have the right to make and collect charges for use of the swimming pool, PROVIDED that any and all sums derived from said charges shall be used for boys’ club purposes.” The lease demonstrates that the City received nothing from the use of the property, and that the City was merely attempting to make the property available to the general public.

I. The Allegations As To Nuisance. We have heretofore copied the germane portions of the complaint as to liability. Appellant lays great stress on the allegations in the complaint to the effect that the City had constructed and leased to the Boys’ Club a nuisance, and that the Boys’ Club had maintained such nuisance. Appellant claims that maintaining a nuisance is entirely different from an act of negligence. Of course, there is a distinction between nuisance and negligence. See 65 C. J. S. 316; 66 C. J. S. 736; and 66 C. J. S. 751. But when we view the situation realistically in the ease at bar, there are really questions of (a) whether the City was negligent in constructing the pool, and (b) whether the Boys’ Club was negligent in failing to provide warnings as to the depth of the pool'. Absent, as here, any eminent domain question of damage to property by the construction of a nuisance, the proper procedure for an aggrieved person is to sue to abate the nuisance, rather than to sue the municipality in tort. In Jones v. Sewer Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888, we said: “As we have already seen, this Court has uniformly held that neither municipal corporations nor local improvement districts, nor their officers, may be sued at law for tort; but it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them.”

In Holt v. Texarkana, 168 Ark. 847, 271 S. W. 690, there was an effort to hold the City of Texarkana liable for failure to keep a viaduct in repair. The Court made reference to our general municipal corporation statute, which is now § 19-3801 Ark. Stats.: ‘ ‘ The City Council shall have the care, supervision and control of all the public highways, bridges, streets, alleys, public squares and commons, within the City; and shall cause the same to be kept open and in repair and free from nuisance.” (Italics our own.) This Court held that under such statute, the City of Texarkana was not liable in tort for failure to keep the viaduct in repair. It is also well to note that in the same case, the Court cited the case of Fordyce v. Women’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, which was a case involving a benevolent corporation such as the Boys’ Club in the case at bar.

So we conclude that the basic question in the case at bar is whether either the City, as a municipal corporation, or the Boys’ Club, as a charitable corporation, is exempt from tort liability; and on that basis we proceed to further consideration.

II. The Case Against The City. Both sides argue the case at bar as though § 19-3601 et seq. Ark. Stats, contained the applicable law. The said sections are from Act No. 291 of 1941 and amendatory acts, and the lease contract here involved was executed in 1938; but the enactment of the 1941 and subsequent legislation constitutes sovereign recognition of the right of municipal corporations to have parks and swimming pools.

Really, the basic question is whether the City, in constructing and maintaining the swimming pool, was acting in a governmental capacity or in a proprietary capacity. We have a number of cases in Arkansas on the distinction between governmental capacity and the proprietary capacity of municipalities. Some of these cases are: Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; Fussell-Graham-Alderson Co. v. Forrest City, 145 Ark. 375, 224 S. W. 745; City of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383; Yoes v. City of Fort Smith, 207 Ark. 694, 182 S. W. 2d 683; Ark. Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133; and Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257.

The general rule in Arkansas is that when a City is acting in its governmental capacity, there is no liability in sneh a case as this one. According to the complaint and the exhibits in this case, the City of North Little Eock has never received any revenue from the bnilding, the swimming pool, diving board, etc. The City has owned the property, furnished the electric current, kept up the fire, hail, and tornado insurance; has allowed the Boys’ Club to receive all admission money charged, and has required the Boys’ Club to keep the property in a state of good preservation and repair. When the City received no revenue for its property and is letting it be used by the general public — and that is what the complaint in this case shows — then the City, in having a swimming pool, is acting in a governmental capacity.

In the case of Yoes v. City of Ft. Smith, 207 Ark. 694, 182 S. W. 2d 683, we discussed whether the City was acting in a proprietary or a governmental capacity in operating a swimming pool; and we said:

“In Hannon v. Waterbury, 106 Conn. 13, 136 Atl. 876, 57 A. L. R. 402, the Supreme Court of Errors of the State of Connecticut held that a municipality was acting in its governmental capacity in operating a swimming pool; and the court said: ‘Public parks, playgrounds, swimming pools, and public baths or bath houses, are all examples of municipal functions undertaken for the public benefit, and unless maintained for the corporate profit of the municipality, are within the rule of governmental immunity. Bolster v. Lawrence, 225 Mass. 387, L. R. A. 1917B, 1285, 114 N. E. 722. The charge of a small fee covering a part of the cost of the maintenance of the pool in paying a supervisor, instructors, janitors, and the like, while the municipality furnished the buildings, the swimming pool, the apparatus and equipment in connection therewith, the coal, electricity, water, chemicals, and other necessaries for the maintenance of the pool, did not except the maintenance of the pool from the rule of governmental immunity. The city was not deriving a profit from this small fee, the charge was a mere incident of the public service rendered in the performance of a governmental duty. ’ ’

In the more recent case of Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257, we had before us a case as to the liability of the City for the operation and maintenance of the municipal airport; and held that the City was immune from tort liability because it was acting in a governmental capacity and not in a proprietary capacity.

There is no claim here that the City or the Boys’ Club had any insurance, under Act No. 46 of 1947; so our holding in Aetna Casualty & Surety Co. v. Brashears, 226 Ark. 1017, 297 S. W. 2d 662, has no application. Clearly the City of North Little Rock was acting in a governmental capacity in this case; and, as such, is not liable for the unfortunate injuries sustained by Floyd Cabbiness. Therefore, the Trial Court correctly sustained the demurrer of the City.

III. The Case Against The Boys’ Club. We come next to the question of whether the Trial Court was correct in sustaining the demurrer of the Boys’ Club; and that involves the immunity of a charitable corporation from tort liability. The complaint, together with the exhibit, alleges that the North Little Rock Boys’ Club was and is a benevolent corporation, organized and existing under tbe laws of tbe State of Arkansas.

In tbe oral argument, learned counsel for appellant conceded with becoming candor that tbe Boys’ Club was without surplus funds'; that our bolding in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S. W. 2d 548, afforded appellant no relief; and that in order to bold tbe Boys ’ Club liable in this case it would be necessary to over-rule our holdings regarding the immunity of charitable corporations from tort liability, as reflected by tbe cases of Women’s Christian National Library Assn. v. Fordyce, 79 Ark. 532, 86 S. W. 417; and Fordyce v. Women’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, 7 L. R. A. N. S. 485, and tbe many other cases citing and following the Fordyce cases. This we refuse to do.

Tbe Fordyce cases were decided in 1906 and tbe rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for tbe Legislature, rather than the courts, to effectuate a change, if such is desired. No such legislation has been enacted applying to a corporation such as the Boys’ Club here. We, therefore, affirm the action of the Trial Court in sustaining the demurrer of the Boys’ Club.

Affirmed.

       The plaintiff was Floyd Cabbiness, a minor, by his mother and next friend. The complaint alleged the seriousness and the permanent nature of the injuries sustained by Floyd Cabbiness, and prayed judgment against the defendants for $426,400.00.

       A copy of the lease was made a part of the complaint.

       The complaint alleged that Floyd Cabbiness “dived into the pool from the highest diving board so constructed by the city and maintained by the club for that purpose; his first dive was a ‘swan dive’ which is a shallow dive; he returned to the same diving board and made a ‘jack knife’ dive which is a deep dive, and while so doing, struck his head on the concrete bottom of the pool causing injuries. At the time plaintiff entered the pool there were many other swimmers and bathers in the pool and the water was so turbulent and agitated that the depth of the pool was not discernible.”

       In 38 Am. Jur. “Municipal Corporations” 647, it is recognized that some jurisdictions apply the rule of governmental immunity in cases wherein the nuisance was created in connection with the performance of a governmental function. Cases on this point are collected in an annotation in 75 A.L.R. 1196 entitled, “Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance.”

       The U. S. District Court for the Western District of Arkansas, in the case of Handley v. City of Hope, 137 Fed. Supp. 442, had before it the question of the liability of a city for the drowning of a child in a municipal swimming pool. In a well considered opinion the Court quoted at length from Yoes v. City of Fort Smith, supra, and held that the city, was not liable. There is also an annotation in 51 A.L.R. 370 entitled, “Liability of municipality in respect of municipal bath houses, bathing beaches, and swimming pools”. A continuation of the same annotation is found in 57 A.L.R. 406.. Also in 29 A.L.R. 863 there is an annotation on “Liability of municipal corporations for injuries due to conditions in parks”.

       On the immunity of charitable corporations from tort liability, we call attention to a few articles. See 6 Ark. Law Review 209; 14 A.L.R. 572; and 25 A.L.R. 2d 29.

       In 1940 in the case of Ark. Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S. W. 2d 588, immunity was extended to a rural electric co-operative corporation; and the Legislature thereafter passed the Act that is now § 64-1525 Ark. Stats. By Act No. 46 of 1947, the Legislature allowed certain corporations to purchase insurance policies for the benefit of the public. See Aetna Ins. Co. v. Brashears, 226 Ark. 1017, 297 S. W. 2d 662.


source: Caselaw Access Project

author: Minor W. Mill wee, Associate Justice.

license: Public Domain

text:
    Johnson Auto Co. v. Kelley.
    5-1409
    307 S. W. 2d 867
    Opinion delivered December 9, 1957.
    [Rehearing denied January 13, 1958.]

      J. H. Spears, for appellant.

      Douglas Bradley, for appellee.
   Minor W. Mill wee, Associate Justice.

The sole issue on this appeal is whether there is substantial evidence to support the finding of the Workmen’s Compensation Commission to the effect that the death of Morris C. Kelley on May 30, 1956, arose out of and in the course of his employment with the appellant, Johnson Auto Company. A further contention that Kelley’s death was due solely to his intoxication has been abandoned by said appellant and its insurance carrier.

Appellant, Johnson Auto Company, is engaged in the sale and service of Ford automobiles at West Memphis, Arkansas, as a metropolitan dealer with an unrestricted trade territory. Appellee is the widow of Morris C. Kelley who had been employed as an automobile salesman by said appellant for 18 days at the time of his death on May 30, 1956.

Appellant kept its place of business open from 8:00 A. M. until 9:00 P. M. daily. The six automobile salesmen were required to do “floor duty” at the place of business in three daily shifts of one to three men each. The first shift was from 8:00 A. M. until 1:00 P. M., the second from 1:00 P. M. until 6:00 P. M. and the third from 6:00 P. M. until 9:00 P. M. Three salesmen were usually assigned to each morning shift which frequently would be handled by only two when one of them wanted off to do outside work. Frequently only one salesman was assigned to the shift beginning at 6:00 P. M. and the men were permitted to, and frequently did, “swap shifts.” When not on floor duty the salesmen were unrestricted in their movements in their sales work and were furnished with cards and handbills to use in soliciting and promoting sales.

On Monday May 28, 1956, as was customary, a bulletin was posted in the salesroom showing the floor duty shifts assigned to the various salesmen for the week. Kelley was assigned to the 8:00 A. M. and 6:00 P. M. shifts on Monday and 1:00 P. M. shift on Tuesday, May 29th. He was also assigned to floor duty at 8:00 A. M. and 6:00 P. M. on Wednesday May 30, 1956, but there is some uncertainty in the evidence as to the 6:00 P. M. assignment. Woods Wright, appellants’ sales manager, thought he might have put Kelley’s name down as a substitute for another salesman previously assigned to that shift on the evening of May 29th. Wright admitted that, in such event, the only opportunity Kelley had to learn of such substitution was at a sales meeting held Wednesday morning May 30th. The schedule itself tends to corroborate such a change in the 6:00 P. M. assignment and there is no showing that Kelley had actual knowledge of such change.

All salesmen were paid on a commission basis and given a monthly allowance for the operation of a current model automobile which they were required to own and use as a demonstrator. Kelley purchased a new 1956 model Ford car shortly after going to work. When not on floor duty, the salesmen were free to work the unrestricted trade territory as they saw fit.

The salesmen were also required to attend sales meetings held daily, except Sunday, at 8:00 A. M. The meetings were usually conducted by Sales Manager Wright at appellant’s place of business but occasionally at the plant of the Ford Motor Company in Memphis, Tennessee. Immediately after the sales meeting held Wednesday May 30,1956, Kelley told Mr. Wright he was going to Jonesboro to try to sell a man a car. Wright knew that Kelley had been negotiating with Mr. Lakey, a prospective buyer at Jonesboro, and made no reply to Kelley’s statement.

It was shown that Lakey, the prospective purchaser at Jonesboro, was sleeping on the morning of May 30th, with instructions to fellow firemen that he was not to be disturbed. Kelley stopped for a short time at the Wagon Wheel, a beer tavern in Trumann, Arkansas, about 10 A. M. where he drank a Coca Cola and distributed some of his cards and handbills. He then visited a barber shop in Trumann where his friend, Walter Sims, worked. He stayed there until 12:00 o ’clock when most businesses in town closed each Wednesday for the rest of the day. While there he made known his employment with Johnson Auto Company and talked with one of the shop’s customers about the sale of a car while the latter was getting a haircut. When the shop closed Kelley and Sims drove around Trumann then to Lake City, Monette, Leachville, Manila and back to Trumann about 6:00 P. M. with Sims driving Kelley’s new Ford demonstrator car most of the way. Kelley had talked to Sims about buying a car when he was working for another dealer. They were joined on the trip from Monette to Leachville by a television repairman with whom Kelley also discussed the sale of an automobile. During the course of the afternoon Kelley and Sims each drank several bottles of beer and played pool at one place. Kelley was well acquainted in the area and had many friends there.

Kelley learned that Dorse Keller, owner of the Wagon Wheel, was interested in purchasing an automobile to be used in a political campaign be was making. When he returned to the tavern about 7:30 or 8:00 P. M. Kelley had a waitress call Keller at his home and ask him to come to his place of business so that Kelley could try to sell him a car. Keller came down about 8:30 P. M. and they discussed sale or trade of automobiles for more than an hour. No sale was consummated but it was agreed that Keller would come to appellant’s place of business for further negotiations. Kelley left in his demonstrator car for West Memphis about 9:45 P. M. A short distance from Trumann his car collided with a transport truck resulting in his instant death.

In rejecting appellants’ contention that Kelley’s death arose out of an excursion exclusively for his own personal pleasure and benefit, and not out of and in the course of his employment, the Commission concluded that the trip in question was made with the permission and tacit consent of Sales Manager Wright; and that, even if Kelley knowingly failed to appear for floor duty on the night in question such failure to follow instructions did not have the effect of removing him from the course of his employment. As the Commission observed: “We do not know whether Kelley ever actually arrived in Jonesboro. But assuming that he did not, was his conduct such as to place him outside the scope of his employment? In answering this question we must be mindful of the fact that Kelley was at no time on May 30, 1956, in territory in which he was forbidden to make a sale for his employer. We must also take cognizance of the well-known fact that automobile salesmen enjoy wide latitude in the matter of working out contacts for the purpose of selling cars. A good deal of promotion and entertaining looking to the establishment of a personal following enters into the well-recognized sphere of a ear salesman’s activities. Kelley, who had only joined the sales force of Johnson Auto Company a few days prior to his death, was certainly confronted with the proposition of making known to' his friends and acquaintances the fact that he-was associated with Johnson Auto Company.' Kelley appears to have enjoyed a wide acquaintance in the area he traveled on the day of death. In the absence of a specific sales prospect what was more natural than for Kelley, while in the vicinity, to circulate and advertise to his friends and acquaintances the fact of his association with Johnson Auto Company? This was to the interest of both Kelley and his employer. That he stopped by a pool hall, had a glass of beer, and engaged in light, meaningless conversation, does not mean that he had digressed from his business of selling cars. But in this particular case there are firmer grounds upon which to make a finding that Kelley’s accidental injury arose out of and in the course of his employment. If he digressed from his employment when he left Trumann enroute to Lake City and other points, certainly he regained his employment when he returned to Trumann, which lies on the main thoroughfare between West Memphis and Jonesboro, and negotiated with Dorse Keller for sale of an automobile. No other purpose for contacting Dorse Keller is even suggested . . . The most that can be said for his failure to appear for floor duty is that he was not at the exact place his employer intended that he be, but nevertheless he was engaged in furthering his employer’s interest in a territory from which the employer welcomed business.”

The findings of fact by the Commission will not be disturbed on appeal if supported by substantial evidence; and in determining the sufficiency of the evidence, doubts should be resolved in favor of the claimant, and the evidence should be reasonably and liberally construed in his favor. Herron Lumber Company v. Neal, 205 Ark. 1093, 172 S. W. 2d 252. Kelley’s course of employment for the purpose of workmen’s compensation, like that of the ordinary traveling salesman, covered both the time and place of the traveling as well as the selling of the goods. Fank Lyon Company v. Oates, 225 Ark. 682, 284 S. W. 2d 637. See also, American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41, where we affirmed the Commission’s finding that a car salesman’s death arose out of and in the course of his employment under a state of facts perhaps more favorable to the employer than those in the instant case. Under the facts presented here, we cannot agree that the Commission was bound to find that Kelley was engaged in a purely personal activity and one which was for his own pleasure and benefit at the time of his fatal injury. In our opinion there is substantial evidence to support the finding that his death arose out of and in the course of his employment. The judgment of the circuit court, so holding, is affirmed.


author: G-eorgb Bose Smith, J.

text:
    Byrd v. Short.
    5-1426
    307 S. W. 2d 871
    Opinion delivered December 9, 1957.
    [Rehearing denied January 13, 1958.]

      B. D. Smith, Jr., and Carroll C. Cannon, for appellant.

      Fred McDonald, Charles B. Boscopf and Burhe, Moore & Burhe, for appellee.
   G-eorgb Bose Smith, J.

This election contest involves the office of school director of Moro School District “B.” Short, as the only nominee on the printed ballot, received 89 votes, and Byrd received 182 write-in votes. Upon these returns the county board of election commissioners and the county court declared that Short had been elected without opposition. Ark. Stats. 1947, § 80-318. Byrd then brought suit in the circuit court to contest the election. The court held that the votes for Byrd could not be counted, because he had not given written notice of his intention to be a write-in candidate at least forty-eight hours before the opening of the polls. Ark. Stats., § 3-1022.

Byrd first contends that the required notice was actually given. The written notice was left at the office of the county board of election commissioners at about two o’clock on Thursday afternoon, March 14, 1957, and was received by a commissioner later that afternoon. The polls were opened at eight o’clock on Saturday morning, March 16. Although this proof shows at most the giving of notice forty-two hours in advance, Byrd contends that by law the polls should not have been opened until 2:00 p. m. on election day.

This position is not well taken. It is true that Act 30 of 1935 directed that school elections be held between the hours of 2:00 p. m. and 6:30 p. m. Ark. Stats., § 80-308. But the voting hours were changed by Act 56 of 1949, which provides that “the general election laws, insofar as applicable, shall apply to school elections.” Ark. Stats., § 80-317. By the general election laws the polls must be opened at 8:00 a. m. Ark. Stats., § 3-908. The legislature, by comprehensively applying the general election laws to school elections, covered the latter field anew .and thereby impliedly, repealed the law requiring the vote to be taken in the afternoon. See Western Union Tel. Co. v. State, 82 Ark. 302, 101 S. W. 745. Byrd relies chiefly upon Faver v. Golden, 216 Ark. 792, 227 S. W. 2d 453, where we held-that the procedure for contesting a school election was not affected by Act 56 of 1949. That case is not controlling, for there the only question concerned the proper method of contesting the election. Act 56 does not purport to alter the rules governing election contests, but it does change the procedure for conducting the election, which is the issue now before us.

It is immaterial that the requirement of forty-eight hours notice was not a part of the general election laws when they were made applicable to school elections; for the rule is that when a statute adopts the general law on a particular subject, rather than a specific statute only, the adopting statute refers not only to the existing law but also to later legislation on the subject. Howard v. State ex rel. Stuckey, 223 Ark. 634, 267 S. W. 2d 763. It is also settled that such an adoption of other laws by reference does not infringe the constitutional provision against the extension of a statute by reference to its title only. State v. McKinley, 120 Ark. 165, 179 S. W. 181.

Byrd further contends that the legislature cannot forbid the counting of write-in votes, in view of Article 3, § 11, of the constitution: “If the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest arising out of said election.” A statute prohibiting write-in votes was upheld in Davidson v. Rhea, 221 Ark. 885, 256 S. W. 2d 744, and although this particular section of the constitution was not mentioned in that opinion, we do not think that it requires us to reach a different conclusion. The constitution, by its reference to the election officer’s unlawful refusal or failure to count a particular vote, plainly contemplates that laws may be enacted to regulate the casting of the ballots. Carried logically to its conclusion Byrd’s argument would enable tlie voters to elect a child or a nonresident alien to office, despite laws to the contrary; for it could be demanded that the votes for such a candidate be counted. ¥e have no doubt that this section of tbe constitution may be invoked only when the election officer’s conduct is contrary to law.

Byrd next insists that even if the polls were properly opened at eight o’clock in the morning the proof shows a substantial compliance with the requirement that the written notice be given forty-eight hours in advance. Byrd offered to prove that the write-in campaign in his behalf was not carried on in secret, that it was initiated long before the day of the election and received much publicity, and that it led to a far heavier vote than that ordinarily cast at a school election in this district. From these facts it is argued that the actual notice of forty-two hours accomplished every purpose that the legislature could have had in mind in fixing a minimum period of forty-eight hours.

Of course this same argument could be made if no written notice at all had been given; it really amounts to an assertion that at this election the statutory notice of Byrd’s intention to be a write-in candidate proved to be a useless gesture and should therefore not be insisted upon by the courts. The answer to this argument is that the doctrine of substantial compliance cannot reduce the minimum time fixed by the legislature in a statute of this kind. In election matters, as in many other fields of law, it is often necessary that some of the rules be exact. A person cannot vote until the moment he reaches the legal age of twenty-one; a candidate must qualify before the stroke of noon on a designated day before the election; a precise number of signatures are essential to a petition under the initiative and referendum law. In every case of this kind it can be said, as Byrd in effect says here, that the line is arbitrary and might as well be drawn somewhere else. Nevertheless, if the desired goal of certainty is to be reached, it is necessary that some controlling rule be adopted, however arbitrary it may seem. Here the legislature has fixed the minimum period of notice at forty-eight hours, which must be taken to exclude the possibility that some shorter period can suffice.

Finally, Byrd argues that the county board of election commissioners erroneously went behind the certified returns of the election judges, which showed that Short had received 89 votes and Byrd 182. On this point Byrd invokes the familiar rule that a canvassing officer or board has no judicial discretion and cannot explore issues of fact that should properly be decided in an election contest. Patton v. Coates, 41 Ark. 111; Parsons v. Mason, 223 Ark. 281, 265 S. W. 2d 526. On the other hand, the canvasser’s declaration of the result of the election is prima facie correct and becomes conclusive in the absence of an appeal or an election contest. Shimek v. Janesko, 188 Ark. 418, 66 S. W. 2d 626.

Without pausing to determine whether Short could have met the present objection by filing a suit to contest his own successful election, we do not think that the county board’s action involved the ascertainment of any fact not already within the board’s official knowledge. There can be no objection to the canvassing officer’s taking into consideration facts that are officially of record and that he is required to know. For example, in Howard v. McDiarmid, 26 Ark. 100, the county clerk was required by law to canvass the returns and forward an abstract thereof to the secretary of state. In three precincts double elections were held, and two conflicting sets of returns were sent to the county clerk. In answer to the contention that the clerk should have forwarded both sets of results to the secretary of state, we held that it was the clerk’s duty to determine from the records in his office who were the regularly appointed election judges in the precincts in question and to forward only the returns certified by those judges.

In the present case it was the duty of the county board to canvass the returns and to file one of the ballots with its findings, Ark. Stats., § 80-318; so the board knew officially that Short was the only candidate listed on the printed ballot. Byrd must therefore have been a write-in candidate, but to qualify as such he was required to serve a written notice of his intention, at least forty-eight hours before the opening of the polls, upon a member of the county board. Ark. Stats., § 3-1022. Since the board also knew that the notice had not actually been served within the time allowed, it did not go beyond its official knowledge in holding that the votes for Short were the only ones that could legally be counted.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Leslie v. Mills.
    5-1396
    307 S. W. 2d 541
    Opinion delivered December 9, 1957.

      Tom Haley and D. A. Braclham, for appellant.

      DuVal L. Burkins, for appellee.
   Paul Ward, Associate Justice.

There are two main issues presented by this appeal. One is the establishment of a north and south boundary line between the properties of the parties. The other concerns the establishment-of a street by public usage.

One. Appellee owns land, in the shape of a parallelogram, in the northeast quarter of Section 7, Township 13 South, Bange 9 West, and appellant owns land adjoining it on the west, being in the northwest quarter of said section 7. The south boundary lines of both parcels of land, are on the same east and west line.

The court was asked to determine the north and south boundary line between the two parcels of land beginning at the common south property line and extending north' approximately 420 feet.

Appellant claims that his east line has been fixed by adverse possession. Just a few days before this litigation began appellant built a new fence where he conceived the line should be. He said he built the new fence where an old fence had existed for much more than seven years, and that he and his predecessors in title had occupied to the old fence. We deem it unnecessary to set out the testimony regarding adverse possession, because the court held it sufficient (as to part of the line) and appellee has not appealed on that point. Particularly the court held that the southern portion of the said boundary line coincided with the fence erected by appellant.

The only fault appellant finds with the line fixed by the court relates to the northern portion. The court did not accept all of the fence, but found the north end of the said boundary to be the true point fixed by a previous survey. This point fixed by the court is seven or eight feet west of the north end of the fence erected by appellant. In this we think the court was in error. Assuming that the point fixed by the court was indeed the true corner, yet it had no hearing on appellant’s claim of adverse possession. There was testimony that appellant built the new fence entirely on the line where the old fence had been located, and there was no testimony to the contrary. Since the court accepted part of the fence he should, under the above facts, have accepted all of it.

Appellee, on cross-appeal, says the court made an obvious error in running the said boundary line a few feet too far south. We have examined the testimony in this connection and think it sustains appellee’s contention. It is noted too that appellant makes no objection to the proposed change.

Ttoo. The other issue, relative to the street or passageway, concerns what is referred to as Hazel Street. The strip of land in controversy, for clarification, may be described as follows: Beginning 13 feet north of the south end of the boundary line between these parties as discussed heretofore, run west (parallel with the south line of appellant’s property) approximately 450 feet to highway No. 15 (also an extension of the Main Street of Warren), thence south 26 feet, thence east 450 feet more or less to a point, thence north 26 feet to the point of beginning. The south half of this strip of ground was owned by one Helen N. Harris and the north half was owned by appellant.

This controversy arose when appellee attempted to open up the above strip of land for a street to connect with a road or street which he had built east to Myrtle Street. All this property is adjacent to the south border line of the Town of Warren, and to the casual observer appears to be a part of the town.

After hearing testimony the trial court found and declared the above strip of land to be a street by prescription except “as to the east 70 to 100 feet.” As to the latter portion the court found that it has never been used by tbe public, and from this part of the finding no one has appealed.

Appellant’s main contention against the trial court’s finding is that it is not supported by the testimony. We do not sustain appellant in this contention.

It must be remembered that the locale of this property and street is practically a part of Warren, and that there are numerous residences close by. Three or four dwellings are located on the north side of “ Hazel Street” and a like number on the south side and the people living in these houses use the street to get to Main Street or Highway No. 15. Also located in the street are utility poles. The testimony indicates that this strip of land in question has been used as a public street for over 35 years. In fact it would seem that Helen N. Harris intended for her strip of ground to be used as a street for she knew the purpose of this suit and although she was a witness, she made no objection. Appellant is bound to have known this portion of the “street” was being used as an outlet to Highway No. 15, because some of the users lived in dwellings located on his land. There is, we think, sufficient evidence to sustain the trial court’s finding that the full width of the street (including 13 feet off of appellant’s land) had been used adversely by the public for more than 7 years.

There is no merit in appellant’s objection that the “street” is not a through passageway. This contention has been rejected by this court. See Robb & Rowley Theaters Inc. v. Arnold, 200 Ark. 110, 138 S. W. 2d 773.

Appellant says appellee cannot assert the right of prescriptive usage for others. Even if this were a valid objection it is obviated by the fact that Charlie Parnell, who lives just south of and uses Hazel Street, intervened in the litigation, and he certainly had an interest in seeing that the street was kept open.

In the above connection, appellant asks us to reverse the trial court because it was error to allow Charlie Parnell to intervene on his own oral motion after much of the testimony had been introduced. We do not agree. Parnell was permitted by the court to intervene and adopt the pleadings of appellee. We are unable to see how this in any way prejudiced the rights of appellant, especially since he made no request to introduce additional testimony. A similar intervention was approved where no prejudice was shown, in the case of Laman v. Moore, 193 Ark. 446, 100 S. W. 2d 971.

While we are affirming the decree of the trial court in so far as it relates to ‘ ‘ Hazel Street, ’ ’ we do not mean hereby to foreclose the rights, if any exist, of persons who are not parties to this litigation.

In accordance with the above views, the decree of the trial court is affirmed in part, and reversed in part with directions to enter a decree consistent with this opinion.

George Rose Smith, J., dissents in part.


author: Sam BobiNsoN, Associate Justice. CarletoN Harris, Chief Justice, George Bose Smith, J., Paul AVard, J.,

text:
    State v. Graves.
    4886
    307 S. W. 2d 545
    Opinion delivered December 9, 1957.

      Bruce Bennett, Atty. General; Clyde Galliotte, Asst. Atty. General, for appellant.

      8am L. Anderson, for appellee.
   Sam BobiNsoN, Associate Justice.

The appellees, Harold Graves and Mr. and Mrs. J. B. Spearman, were charged in the municipal court of Hot Springs with the offense of contributing to the delinquency of a minor. They were each fined $50.00 and costs, and appealed to the circuit court. There, the cases were tried before the court without a jury, and from judgments of not guilty as to all of the defendants the State has taken an appeal to this Court.

The facts are undisputed. Sandra Spearman, a girl 13 years of age, and Harold Graves, a hoy 17 years of age, accompanied by Mr. and Mrs. J. B. Spearman, the parents of Sandra, and also by Mr. D. H. Graves, the father of Harold, went to Greenville, Mississippi, where, with the consent of Mr. and Mrs. Spearman and Mr. Graves, Harold and Sandra obtained a marriage license and were married. They returned to Arkansas, where Harold and Sandra lived together as man and wife for about four days, when Mrs. Murphy, attendance officer at the school in Hot Springs attended by Sandra, obtained a warrant in the municipal court of Hot Springs charging Harold and Mr. and Mrs. Spearman with contributory delinquency. There is no explanation of why D. H. Graves, who also made the trip to Mississippi and gave his consent to the marriage, was not charged in a like manner.

It appears that a few days before the trip to Mississippi for the wedding Mrs. Murphy had talked about the matter with Mrs. Spearman. Mrs. Murphy testified:

“A. Through the advice of Dr. Bruce and others I took Sandra to the place of business where the mother was — at the Park Place Baptist Church — and talked to the mother, presenting it to her — the ruling of a child under 16 years of age marrying would not be legally married in tbe State of Arkansas. Mrs. Spearman was very nice, very considerate about tbe whole thing. She said that her prayers bad been — -that she had consented to the marriage and she prayed that the Lord would take care of it and she felt this was the answer to her prayers. And Mrs. Spearman and the girl both consented that was the thing, and the girl wanted to know if I would talk with the boy and I said I would be happy to. But the boy was between his school and going to work, at the time, and the girl spoke up and said, ‘Mother, do you think it would be better if we talk with him tonight. ’ The mother agreed that she thought it would be better if they talked with the boy that night and see if it wouldn’t be better to let everything be settled that way. I left Mrs. Spearman and took Sandra back to school. Mrs. Spearman was very nice, very appreciative of my coming to the church with her at the time. Then I went back to school and placed the child back in school, and that was my talk with Mrs. Spearman. That was my conversation with her. ’ ’

Mrs. Murphy further testified that Sandra is not a delinquent child. She was asked:

“Q. Do you know whether or not Sandra Spear-man Graves is a delinquent child?
A. No, she has nothing against her whatsoever as a delinquent child. No, sir, I have never heard of anything against her.”

There is nothing in the record to indicate that the Graves or the Spearmans are other than good, upright people.

The charge of contributory delinquency against the defendants is not specific in any manner. It cannot be ascertained from any papers filed in court just whose delinquency the defendants are charged with contributing to, or the manner of such alleged offense. But it appears that the defendants were tried on the theory that the Mississippi marriage is void; that Harold and Sandra have lived together as husband and wife, and, therefore, Sandra has become delinquent; and that the defendants have contributed to such delinquency — Harold hy being a party to what is claimed to be a void marriage, and the Spearmans by consenting to such marriage. "With this view of the situation in mind, the case turns on the point of whether the Mississippi marriage is void. The trial court based the judgment of not guilty on the theory that the Mississippi marriage is valid, not only in the State of Mississippi, but everywhere. We agree.

It is conceded that if Sandra and Harold were residents of Mississippi the marriage would be valid in that State and elsewhere, Sandra being 13 years of age and Harold 17 years of age, the parents of both parties agreeing to the marriage. And undoubtedly such marriage would be valid. Hunt v. Hunt, 172 Miss. 732, 161 So. 119. But appellants contend that the marriage is void in Arkansas because both parties to the marriage were domiciled in Arkansas. Ark. Stat. § 55-102 provides :

“Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall be absolutely void. # * *”

This brings us to the consideration of whether Arkansas will recognize the Mississippi marriage as valid in Arkansas. The general rule is, of course, that a marriage valid where it is celebrated is recognized as being valid everywhere. Restatement, Conflict of Laws, p. 185. But there are certain exceptions to the rule:

(1) Polygamous marriage.
(2) Incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicile.
(3) Marriage between persons of different races where such marriages are at the domicile regarded as odious.
(4) Marriage of a domiciliary which, the statute at the domicile makes void even though, celebrated in another state. Restatement, Conflict of Laws, p. 197.

Obviously the first three exceptions do not apply here, and it is equally clear that the fourth exception does not apply because we have no statute which forbids the creation, in another state, of the marriage status between persons such as the ones involved here.

In 35 Am. Jur. 289, it is said:

“Furthermore, a statute relating to the validity of marriages or capacity to marry will, according to one view, be held to apply to citizens or subjects outside the country or state in which it is enacted, even by courts of such country or state, only where it includes such persons by express terms or necessary implication. Indeed, the view has been taken that if a statute, silent as to marriage outside the state, prohibits classes of persons from marrying generally or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into or out of the state.” (Italics ours)

In In re Perez’ Estate, 98 Cal. App. 2d 121, 219 P. 2d 35 (1950), the California court said:

“Was the Arizona marriage of respondent and decedent void because it was contracted between the parties for the specific purpose and with the specific intent of evading the laws of California?
“This question must be answered in the negative. If parties who are residents of and domiciled in California, where their marriage would have been invalid, are married in another state in conformity with the laws of such state, even though they have entered such state with the avowed purpose of evading the laws of the state of California, such motive does not invalidate the marriage. ’ ’

In onr own case of Feigenbaum v. Feigenbaum,, 210 Ark. 186, 194 S. W. 2d 1012, Mr. Justice FbaNk Smith said:

“* * * Upon one branch, of the case there is no difference of opinion, and that is, that wherever the question of the validity of a marriage may arise, the question must be determined in accordance with the laws of the state where the marriage was contracted.”

In the case of State of Nebraska v. James Hand, 87 Neb. 189, 126 N. W. 1002, the court, beginning with a quotation from Van Voorhis v. Brintnall, 86 N. Y. 18, said:

“ ‘The validity of a marriage contract is to be determined by the law of the state where it was entered into. If valid there, it is to be recognized as such in the courts of this state, unless contrary to the prohibitions of natural law, or the express prohibitions of a statute. While every state can regulate the status of its own citizens, in the absence of express words a legislative intent to contravene the jus gentium, under which the question of the validity of a marriage contract is referred to the lex loci contractus, cannot be inferred. The intent must find clear and unmistakable expression.’ The court cites Medway v. Needham, supra (16 Mass. 157, 8 Am. Dec. 131), and also quotes from Putnam v. Putnam, 8 Pick. 433 the following: ‘If it shall be found inconvenient or repugnant to sound principle, it may be expected that the legislature will explicitly enact that marriages contracted within another state which if entered into here would be void shall have no force within this commonwealth. ’ Acting on that idea, Massachusetts subsequently enacted a law as follows: ‘Where persons resident in this state, in order to evade the preceding provisions and with an intention of returning to reside in this state, go into another state or country, and there have their marriage solemnized, and afterward return and reside here, the marriage shall be deemed void in this state. ’ After the passage of that law, the supreme court of Massachusetts in Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, in an opinion by Mr. Chief Justice Gray, on page 464 of 113 Mass, say: ‘A marriage which, is prohibited here by statute because contrary to the policy of our laws is yet valid if celebrated elsewhere according to the law of the place, even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the state shall have no validity here. This has been repeatedly affirmed by well-considered decisions.’ And this seems to be the overwhelming weight of the better reasoned cases on the subject. 1 Bishop, Marr. Div. § 880; Courtright v. Courtright, 11 Ohio Dec. Reprint, 413; State v. Shattuck, 69 Vt. 403, 40 L. R. A. 428, 60 Am. St. Rep. 936, 38 Atl. 81; Norman v. Norman, 121 Cal. 620, 42 L. R. A. 343, 66 Am. St. Rep. 74, 54 Pac. 143, quoting from Com. v. Lane, supra; Sturgis v. Sturgis, 51 Or. 10, 15 L. R. A. (N. S.) 1034, 131 Am. St. Rep. 724, 93 Pac. 696.
“To hold otherwise would be to render void numberless marriages and to make illegitimate thousands of children the country over. In 1 Bishop on Marriage & Divorce, 882, this thought seems to have been in the mind of the author. He says: ‘It was formerly common for English parties wishing to intermarry without a compliance with their own marriage acts to go into Scotland, and there interchange the matrimonial consent simply in the presence of witnesses. Gretna Green was the most convenient point for the required hasty visit; and thus Gretna Green marriages became famous, and there was no question of their validity. But Parliament, in 1856, by Stat. 19 & 20 Yict. chap. 96, § 1, put an end to this by declaring that thereafter “no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid unless one of the parties had, at the date thereof, his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage.” ’ We do not question the power of a state to pass a law similar to that passed by Massachusetts, as hereinbefore set out, but our legislature has not seen fit to do so.”

Likewise, the General Assembly of the State of Arkansas has not seen fit to declare void a marriage such as the one involved here, celebrated in a sister state where it is valid. And there is no strong public policy in this State requiring the courts to declare that marriages such as the one involved here are void ab initio. Appellant bases the contention that the marriage is void without a court decree to that effect solely on the word “absolutely” which appears in Act 32 of the Acts of the General Assembly for the year 1941 (Ark. Stat. § 55-102, heretofore quoted). That Act amends the Revised Statutes, c. 94, § 2, § 9017 of Pope’s Digest, adopted in 1837. Chapter 94, § 2, § 9017 Pope’s Digest, provides:

“Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the (full) age of fourteen years, shall be capable in law of contracting marriage; if under those ages, their marriages are void.”

It will be noticed that under-age marriages are declared void; but Chapter 94, § 5 of the Revised Statutes (Ark. Stat. $ 55-106) provides:

“When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting (consenting) to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void, from the time its nullity shall be declared by a court of competent jurisdiction.”

The 1941 Act does not mention Ark. Stats. § 55-106, which declares that such marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction. Prior to the adoption of the 1941 Act, which uses the term “absolutely void,” our Court had declared that marriages between persons of prohibited ages were void only if declared void in a judicial proceeding. Kibler v. Kibler, 180 Ark. 1152, 24 S. W. 2d 867.

Moreover, in two cases decided subsequent to the adoption of the 1941 Act, the Court held that such marriages were voidable and not void. Hood v. Hood, 206 Ark. 1057, 178 S. W. 2d 674; Ragan v. Cox, 208 Ark. 809, 187 S. W. 2d 874.

The only authority among our cases to the effect that the term “absolutely void” means that the marriage is void db initio without a court proceeding in which it is nullified is the second Ragan v. Cox case, 210 Ark. 152, 194 S. W. 2d 681, but even that case appears to imply that certain marital rights may exist by reason of the marriage. If so, then of course some degree of validity must have attached to the marriage. The Court said:

“In the circumstances of this case the pretended marriage between W. A. and Louise Ragan was — certainly as to the appellee (through whose fraudulent agency the status was sought to be created) — a complete nullity. What effect the ceremony might have had upon any marriage status claimed by Louise does not enter into the discussion, because at her instance the records were purged.”

For a period of more than a century the established law, as well as the public policy of the State, was that underage marriages were valid until they were nullified by a court of competent jurisdiction. And now, the only authority for saying that the public policy of this State is otherwise is the decision in one case, which is contrary to the holding in two other cases (all decided since the adoption of the 1941 Act). In the circumstances, it can hardly be said that the public policy of this State against under-age marriages is so strong that such a marriage, valid in the state where it was contracted, is void in this State.

The celebration of a marriage gives rise to many ramifications, including questions of legitimacy, inheritance, property rights, dower and homestead, and causes of action growing out of the marital status. We have no statute which provides that marriages such as the one involved here, celebrated in another state, are void in the State of Arkansas.

Affirmed.

Harris, 0. J., dissents; George Rose Smith and Ward, JJ., concur.

CarletoN Harris, Chief Justice,

dissenting. In dissenting to the ruling of the majority, I am not as much concerned with this particular litigation as with the possible future consequences of such a holding. The Court’s refusal to declare this marriage void, may well serve as encouragement to other youngsters, not of sufficient age to legally marry in this state, and their parents, who approve of such a proposed marriage, to evade the provisions of our own statute by simply traveling to another state for the marriage ceremony where the age requirement is more lenient than our own. Our own statute was undoubtedly passed because the legislature did not consider that boys and girls under the designated ages were normally or generally possessed of sufficient stability, logic, or experience, to reasonably understand the full significance or responsibilities of the marital status. The legislature fixed the minimum marriage age at 18 for boys, and 16 for girls, and declared that under those ages “their marriages shall be absolutely void.” In passing this statute, the General Assembly set forth the policy of this state, and I can conceive of no stronger words than “absolutely void.” Certainly the minimum ages are reasonable, and it possibly would not be seriously argued otherwise. The majority opinion cites several exceptions to the general rule that a marriage valid where it is celebrated shall be recognized as valid everywhere. I am sure that we all agree that such exceptions are sound in logic and principle, and I feel that this Court should go further and add a fifth exception, namely, “marriage of a domiciliary which the statute at the domicile makes void. ” It is indicated that the majority would declare the within marriage void if our statute read as follows:

‘ * Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall he absolutely void wherever consummated.”

This is stretching the point a little too far for me, and is, I think, contrary to the intent of the General Assembly. I cannot believe that that body intended to say that our citizens, under the age fixed, could not marry in this state, but could go elsewhere for the marriage ceremony, and thus legally avoid the statute in question. The majority concede that our own legislature has the right, authorit}r, and power to declare such a marriage void; they simply say that such a declaration has not yet been made. I am of the opinion that such an intent was clearly implied by the Assembly in their use of the words ‘‘absolutely void” . . . for a marriage could not be absolutely void if it could be held legal under any circumstances.

I am willing to concede that such a holding might be contrary to the majority view elsewhere, but on a matter involving public policy, the -welfare of our young people, and the sanctity of the home, I am left unpersuaded by views that other courts may have taken. It would not be the first time for this Court to adopt a minority rule; in fact, I quickly recall one case wherein we were the first state in the Union to adopt a particular policy. This is not to say that there is a lack of authority for the position I take. In Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, a similar question was before the court. The Tennessee law provided “"When a marriage is absolutely annulled, the parties shall, severalty, be at liberty to marry again; but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed, during the life of the former husband or wife. # One E. U. Iiovey was divorced from her husband, John Iiovey, upon petition of the husband charging her with adultery with William Pennegar. The decree adjudged charge fully proven, and the divorce was granted the husband solely upon such charge. The divorced wife and the partner in her guilt, shortly after the divorce, went to the state of Alabama, where they were married to each other, and on the next day after their marriage returned to the state of Tennessee, the place of their former and present residence, where they lived and cohabited as man and wife. They were indicted for lewdness, tried and convicted, and appealed to the Tennessee Supreme Court, which said:

* * The legislature has, beyond all possible question, the power to enact what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated, wrhether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who left the state of domicile for the purpose of avoiding its statutes, when they come or return to the state; and some of the states have in terms legislated on the subject. Where, however, the legislature, as in oar own state, has not deemed it proper or necessary to provide in terms what shall he the fate of a marriage valid where performed, hut has in the particular case contented itself with merely prohibiting such marriage, the duty is devolved upon the courts of determining, from such legislation as is before it whether the marriage in the other state is valid or void when the parties come into this state. * * *
“Now, believing, as we do, that the statute in question, which we are called upon to construe in the case at bar, is expressive of a decided state policy * * * we will not allow such parties to shield themselves behind a general rule of the law of marriage, the wisdom and perpetuity of which depends as much upon the judicious exceptions thereto, as upon the inherent right of the rule itself. * * *”

In the case of In re Stull’s Estate, 183 Pa. 625, 39 Atlantic 16, the Supreme Court of Pennsylvania rendered a like ruling. The statute provided:

‘ ‘ The wife or husband who shall have been guilty of the crime of adultery, shall not marry the person with whom the said crime was committed during the life of the former wife or husband; * *

The wife of one Richard H. Stnli obtained a decree of absolute divorce from him on the ground that he had committed adultery with one Ada Widdup. A few months thereafter, Stull and the said Ada Widdup, both citizens and inhabitants of Pennsylvania, went to the state of Maryland and married. They at once returned to Pennsylvania, and lived and cohabited as man and wife. The court, in holding such marriage void, said (in speaking of the statute):

“ * * * It forbids the marriage relation to be contracted in the most general terms. The guilty party ‘ shall not marry the person with whom the said crime was committed. ’ A personal incapacity to marry is imposed. The necessary meaning of this language is that they shall not marry at all, in any circumstances, or at any time, or any place, so long as the injured party is living. So far as the purpose and meaning of this statute are concerned, it is of no consequence where such subsequent prohibited marriage takes place. The relation itself is absolutely prohibited, and hence is within the operative words of the statute, without any reference as to where the marriage occurs. * * #

As stated by our learned Dr. Robert A. Leñar, in his book Conflict of Laws, Section 132, page 273:

í < * * * Since the domicile by its law has ultimate control over the statutes of its domiciliaries, it in the last analysis decides whether any effort, made locally or elsewhere, to create a status, is successful * *

As was said by the New York Court of Appeals in Cunningham v. Cunningham, 206 N. Y. 341, 99 N. E. 845:

< ¡ * * * It will be recalled that the parties to this action reside in this state and have so resided ever since and before the marriage. The right of a government, as well as that of the several states of the Union to determine the marital status of its own citizens and prescribe the terms and conditions upon which their relations may be changed is elementaiy and beyond question. * * * ”

Further citations could be given, but I feel the foregoing sufficient to establish by point, viz., this Court has full legal authority, and could, if it so desired, declare this marriage void.

Young people below the Arkansas statutory age for marriage may well be puzzled as to how a thirteen-year-old child is enabled to take a husband, contrary to the provisions of our statute, and openly live with that husband without fear of prosecution. It was admitted in this cause that Harold and Sandra went to Mississippi for the sole purpose of getting married, intending at all times to return to their home in Arkansas. This Court has now placed itself in the position of approving evasion and avoidance of our own statutes.

As previously pointed out, the clear inference in the early part of the majority opinion is that this marriage would be declared void if our legislature had gone further and declared such marriages void, though celebrated in a state where same were valid. Despite this inference, there is further language in the opinion which indicates that even if this marriage had been solemnized in Arkansas, it would still be considered valid until nullified by a court of competent jurisdiction. If such is the case, I desire to dissent with even more vigor, for I am unable to comprehend what language the legislature could have used to make its wishes more emphatically known (than the language in the statute heretofore referred to, Section 55-102). After declaring marriages entered into by males under the age of 18 years, and females under the age of 16 years, to be absolutely void, the statute further provides:

“* * * Provided that males under the age of 21 years and females under the age of 18 years shall furnish the clerk before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to such marriage, and, in all cases where the consent of the parent or parents or guardian is not provided or there shall have been a misrepresentation of age by a contracting party, such marriage contract may be set aside and annulled upon the application of the parent dr parents or guardian to the Chancery Court having jurisdiction of the cause. “ * * ”

This provision makes it very clear to me that the legislature is declaring that marriages of males between the ages of 18 and 21, and females between the ages of 16 and 18 may, under the prescribed circumstances, be set aside and annulled by court action; i.e., those marriages are voidable, but it is quite noticeable that no such provision is made relative to marriages under 18 (for males) and under 16 (for females). The reason is obvious — the G-eneral Assembly meant the latter marriages to be void ab initio.

The question of whether the parents of Sandra, and Harold Graves, are guilty of contributory delinquency is academic in any event, since they have already been acquitted by the Circuit Court. There is no question, in my mind, however, that if this Court held the within marriage to be void, all parents, or others, in the future who encouraged, aided, or abetted one under the statutory age to enter into marriage, would be guilty of contributing to the delinquency of a minor. I probably would go further and state — if the matter were other than academic — that any parent who would assist and encourage a thirteen-year-old child to enter the marriage relationship, contrary to the law of the domicile, though the marriage is valid where performed, — is contributing to the delinquency of a minor. Parents, in my opinion, should teach their children to respect and obey the law — not evade it. At any rate, as the matter stands, they (parents) may, if they so desire, continue to ignore our statute, take their children to Mississippi, consent to the marriage ceremony, return to Arkansas, and no offense has been committed.

In my humble opinion, the marriage should be declared void.

George Bose Smith, J.,

concurring. It is with much reluctance that I join in the majority’s conclusion that this marriage must be upheld. It was valid by the law of the place where it was performed, and, in the absence of a statute expressly prohibiting our underage domiciliaries from going elsewhere to be married, I think we are compelled to hold that this marriage is valid everywhere. Best., Conflict of Laws, § 132. Even without a statute the common law recognizes a strong local policy against polygamous, incestuous, and miscegenetic marriages and does not permit one to evade that policy of his own domicile by going to another state to be married'. But, in the absence of statute, that principle has never been extended to underage marriages, and, in view of the strong policy m favor of the validity of all marriages, I am unable to join with Chief Justice Harris in reading into our statute, which of course is intended to govern ceremonies performed in Arkansas, an implied prohibition that would apply to this case.

It wms at first my inclination to take a middle course, by saying that although the validity of this marriage would be recognized in this state our policy against underage marriages should prevent the couple from living together until attaining the age at which they might have been married in Arkansas with parental consent. That principle is of course applied in the three instances involving a strong common law policy against a particular marriage. Thus if the law of a foreign country permits a man to have two wives we would recognize the marriages for some purposes, as for the allowance of dower and other property rights, but we would not permit the husband to cohabit with two wives in this state. Best., Conflict of Laws, § 134. It would in some ways be desirable to apply that principle to this case, but on further study I am bound to concede that such a view cannot be logically supported. If our statute, declaring underage marriages in this state to be absolutely void, is not explicit enough to establish a policy against marriages entered into by our minors elsewhere, wo cannot say with consistency that the statute is nevertheless sufficiently strong to declare a policy against those minors living together when they come back home.

On one point, however, I cannot join in the majority opinion. In the second opinion in Ragan v. Cox, we pointed out that the earlier cases had construed the statutory word “void,” with reference to underage marriages, to mean voidable only, and that the legislature evidently meant to change that rule by declaring in 1941 that such marriages should be “absolutely void.” Ark. Stats. 1947, § 55-102. We therefore concluded in the Ragan case that “absolutely void” did not mean voidable and that tbe marriage considered there was ‘ ‘ a complete nullity. ’ ’ That decision was delivered by a unanimous court and in my opinion is wholly sound.

In the case at bar the majority, without actually overruling the second Ragan case, unsettle the law by criticizing that decision and by implying that it may not be followed in the future. I think the Ragan decision was correct, and I do not find much to support the majority’s apparent change of position in the matter.

It is said that in two cases decided after the adoption of the 1941 act the court held underage marriages to be voidable and not void. This is true, but in neither case did the court discuss the fact that the statute had been changed by substituting “absolutely void” for the earlier “void.” Indeed, in one of these two cases — the first appeal in Ragan v. Cox—the record then indicated that the marriage was also incestuous. On this point we observed that the statute declared incestuous marriages to be “ absolutely void, ’ ’ and went on to say: ‘ ‘ Such marriages are not merely voidable, but void ab initio.” If the phrase “absolutely void” makes an incestuous marriage void ab initio, it is hard for me to see why the phrase has a different effect when it is applied to an underage marriage.

The difference between the old statute and the new one was apparently not considered either in Hood v. Hood or in the first Ragan appeal. But that difference was carefully considered in the second Ragan opinion and was the sole basis for the court’s holding that an underage marriage was, despite the earlier cases to the contrary, a complete nullity. I fully agree with that view, and I must protest against the present opinion, which creates uncertainty in the law where none seemed to exist.

Paul AVard, J.,

concurring. For any one to encourage a girl 13 years old [and so far as the majority opinion holds, it could be a girl of 8 years] to get married [even in Mississippi] is so revolting to my mind that I am constrained to write this brief concurrence.

It seems to me that the majority opinion has not dealt with the vital issue involved in this appeal. It has gone to great length, to show that the marriage of Sandra in Mississippi is a valid marriage in Arkansas. Begardless of whether that conclusion is sound or not, to me the real question is: Do our courts have any authority to punish a person for encouraging a girl of tender years to g’et married? It must be remembered that the people of this state, acting through its legislature, have said, Ark. Stats., § 55-102,' that such a marriage is absolutely void. The people must have felt pretty strongly about this matter because the word “absolutely” was separately inserted into an old statute which made such a marriage merely “void.”

Ark. Stats., § 45-204, defines a delinquent child as one who indulges in certain conduct deemed unwholesome —such as violating the law, visiting gambling places and pool halls, and wandering in the streets at night. True the above statute does not specifically mention marrying at the age of 13 or 8 years, but I submit that such is within the spirit of the law and that it is more revolting to our social concepts than the things mentioned in the statute. As I understand the reasoning in the majority opinion, it makes no difference whether the child which gets married is 13 years old or 8 years old.

Ark. Stats., § 45-239, makes it a misdemeanor for any one to contribute to the delinquency of a child — that is to encourage a child to engage in a forbidden course of conduct as defined above.

Since there might have been presented to the trial court in this case circumstances which justified it in dismissing the charges against the defendants, I am concurring in the majority opinion. I would have preferred, however, to join in an opinion which did not take away from the courts the power to punish a person guilty of encouraging a very young child to get married, even to get married in another State.

       Added.

        Leach v. Leach, 227 Ark. 599, 300 S. W. 2d 150.

       Meaning divorce.

         Emphasis supplied.


author: CarletoN Harris, Chief Justice. Ed. F. McFaddiN, Associate Justice

text:
    Stokenbury v. Stokenbury.
    5-1437
    307 S. W. 2d 894
    Opinion delivered December 16, 1957.

      Bex W. Perkins and E. J. Ball, for appellant.

      Elgin H. Blalock, for appellee.
   CarletoN Harris, Chief Justice.

Norman L. Stok-.enbury, appellee herein, instituted suit for absolute divorce against Martha M. Stokenbury, appellant, in the Washington County Chancery Court on March 21, 1957. Mr. Stokenbury was a sergeant in the Air Force, and had been previously stationed at Wichita, Kansas, before being transferred to Fayetteville. While in Wichita, Mrs. Stokenbury had obtained, from the District Court of Sedgwick County, a restraining order against appellee, restraining him from molesting her or the minor children, and further directing that he pay the sum of $156.90 per month as support and maintenance for appellant and the children. The suit filed by Mrs. Stoken-bury was for separate maintenance only, and was still pending at the time of the hearing in this litigation. On April 3, Mrs. Stokenbury filed a motion for temporary allowances for herself and the three children, and for suit money. Both parties testified before the court, and Mrs. Stokenbury testified that there were a number of witnesses, in various states, whose testimony was necessary to the presentation of her defense, and that such testimony would have to be taken by deposition. She listed twelve witnesses in four states and one in Japan. The court, after hearing the testimony of appellant and appellee, entered an order directing Stokenbury to pay into the registry of the court the sum of $50 for temporary attorney’s fee; $15 for suit money; $25 for the taking of depositions; and further, “* * * that the court allows the amount made by the Kansas court for the support and maintenance of the defendant and minor children to remain as it is.” Appellant contends that the amounts allowed for suit money and the taking of depositions are inadequate, and so brings this appeal.

Appellee’s principal argument relates to the fact that no answer was filed by appellant until May 22, 1957, and that the trial court erred in permitting such answer to be filed at that late date; that the appellant is completely in default. We find such argument to be without merit. As hereinbefore set out, Mrs. Stokenbury, on April 3rd, (which was well within the time) filed her motion for temporary allowances. It was not necessary that an actual answer be filed within the twenty days. In the case of West v. Page, 228 Ark. 13, 305 S. W. 2d 336, decided by this Court on September 30th of this year, it was said:

“* # * On cross appeal Page argues that the chancellor should not have awarded the owners a judgment for the item, just mentioned, of $150.16. It is contended that the owners’ answer, asserting this counterclaim, was not filed until more than twenty days after the service of summons and that therefore the answer should have been stricken under the mandatory provisions of Act 49 of 1955 (Ark. Stats., Sec. 27-1135 and 29-401), as construed in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439.
‘£ On the record before us this contention is not well founded. Page filed his complaint in the chancery court, and the summons was served on January 11, 1956. On January 26 — only fifteen days later — the defendant owners filed their motion to transfer the cause to the circuit court. This motion, which as it happens was ultimately denied, was in our opinion, a compliance with the statutory requirement that the ‘defense’ to the complaint be filed within twenty days. We do not construe the word defense as being limited to an answer going to the merits of the case. * * * In the orderly course of procedure the defendant should be permitted to raise preliminary matters before pleading to the merits of the case. We think it plain that this settled principle of pleading was left undisturbed by the 1955 statute. * * *”

Appellee further argues that this appeal was filed solely for the purpose of delay, but the circumstances and testimony do not justify such a finding on our part.

This suit was filed by appellee, and we have previously held that where a divorce suit is instituted by the husband, the wife is entitled to alimony pendente lite, suit money, and attorney’s fees, without the necessity of a showing of merit. Slocum v. Slocum, 86 Ark. 469, 111 S. W. 806; Kearney v. Kearney, 224 Ark. 484, 274 S. W. 2d 779. However, in her testimony, Mrs. Stokenbury was asked what caused her to initiate proceedings in Wichita to keep her husband away from home. Her reply was, “Because of his brutality in drinking, and I have gone through the same thing with two other children and I could not go through it again.” She stated that several friends and neighbors in Wichita (naming them) knew of the conduct of her husband, and she desired their deposition. She named other witnesses expected to testify that Stokenbury kept company with two different women.

This wife is entitled to present her defense, and according to her testimony, is without funds to defray the expense of taking the depositions, or to defend the law suit. The youngest child was one week old when Mrs. Stokenbury came to this state, and appellant’s sole means of support is the Class B allotment. Sergeant Stokenbury’s attitude is that if his wife wants to take the depositions, she can pay for same put of her money. We do not believe, however, that $156.90 per month is a sufficient amount to provide for her maintenance and needs, the support and maintenance of three small children, and to defend the litigation. The matter therefore resolves itself into two questions . . . first, is the amount allowed by the trial court sufficient for Mrs. Stokenbury to present her defense; and second, what amount does appellee have the ability to pay? We do not see, particularly under present day living-costs, how depositions of the various witnesses could be taken in four states and abroad for the sum of $40, and are of the opinion that a larger amount should have been allowed. Such amount depends, of course, upon the earnings of appellee. Sergeant Stokenbury testified that his base pay, longevity, ánd rations and quarters allowance, amount to a total of $287.70. After deducting the $60 for the family allotment, and various other deductions, he testified there was left about $180, and that he was not able to- make ends meet . . . that his board amounts to $60 a month . . . that he has to eat the noon meal on the road, and spends the balance for cleaning, laundry, and “many other things”; that he owes his father and sister money, as well as the First State Bank at Springdale. Appellee further testified that he had purchased a 1956 Oldsmobile, but after paying $1,200 to $1,400 on the sale price, had given it to his sister, because of his inability to make the payments. Obviously, Sergeant Stokenbury’s finances are limited, but we conclude that a larger allowance for suit money and depositions would be entirely proper. While not involved in this appeal, we might add that we feel the amount of $156.90, allowed by the court, to be a proper amount under the financial circumstances shown.

The trial court allowed a total of $40 for suit money and the taking of depositions. In accordance with the views herein expressed, the judgment is reversed and the cause remanded to the Washington Chancery Court with directions to award appellant the additional sum of $110, or a total award (for suit money and the taking of depositions) of $150.

Justices MoFaddin and Millwee dissent.

Ed. F. McFaddiN, Associate Justice

(dissenting). Stripped of all extraneous matters, the only real question on this appeal is whether the Chancery Court abused its discretion in awarding Mrs. Stokenbury only $40.00 to defend the divorce suit brought by her husband in the Washington Chancery Court.

Let it be remembered that the Chancery Court was hearing a motion for suit money in advance of any trial; and that after hearing the case on its merits, the Court may then make additional awards for attorneys ’ fees and adjudge all costs against the husband, including those of taking depositions. On this preliminary motion for suit money and attorneys’ fee, the Chancellor allowed Mrs. Stokenbury $50.00 attorneys’ fee and $40.00 suit money. No complaint is made as to the $50.00 attorneys’ fee, but it is claimed on this appeal that the Chancery Court abused its discretion in only allowing $40.00 to Mrs. Stokenbury to present her defense. I think she was really trying to present her offense. But, be that as it may, the question is whether the Trial Court abused its discretion in allowing only $40.00 for suit money.

I cannot say that the Chancellor abused his discretion. I think it is bad practice for the Supreme Court to attempt to supervise the Chancellor’s discretion to the extent of $110.00 in a preliminary matter like this. The Chancery Court hears a score of these divorce cases against only one that comes to this Court. The Chancellor sees the parties and can judge as to their sincerity, etc.: we see only the printed page. Therefore, we, as Appellate Judges, should be most reluctant to proclaim that the Chancellor abused his discretion to the extent of $110.00.

When we embark on a policy of controlling the Chancellor’s discretion on such an order as this one, we are opening the floodgates to a rash of appeals on orders that are, to a large measure, entirely interlocutory, and we are encouraging litigants to appeal every temporary allowance award to this Court, thereby delaying the Chancery Court in concluding the trial of the cause. I am thoroughly of the opinion that the Chancellor did not abuse his discretion and that his order should he affirmed.

       Mr. Stokenbury was originally from Washington County, and has continued to claim Arkansas as his home.

       Amount of Class E allotment. $96 paid by government; $60 by Stokenbury.

       This number included four husbands and wives whose testimony would be the same.

       Sergeant Stokenbury lives with his sister, and testified that though this was the charge, he had not yet paid any amount.

       The car was given to the sister after this suit was filed.


author: J. Seaborh Holt, Associate Justice.

text:
    Hensley v. Holder.
    5-1411
    307 S. W. 2d 794
    Opinion delivered December 16, 1957.

      . John B. Driver, for appellant.

      Garvin Fitton and Arnold M. Adams, for appellee.
   J. Seaborh Holt, Associate Justice.

Appellee, Billy Joe Holder, was elected Sheriff and Collector for Searcy County, Arkansas, and took office January 1, 1951. He served three terms, a period of six years, his last term having expired December 31,1956. On January 7, 1951, he appointed his wife, June Holder, to be his Deputy Sheriff and Collector, in which capacity she served until December 31, 1956. During the period from January 1, 1951 to November 1, 1953, she worked without pay. Sheriff Holder’s compensation was paid from the fees of his office, not to exceed a maximum amount of $5,000 annually, as the law provided. The 1953 Legislature passed Act 411 which was approved and became effective on March 28, 1953. This act in part provides: “Section 1. The Sheriff in all counties having a population of not more than 11,000 and not less than 10,200 according to the 1950 Census may employ one deputy sheriff. Such deputy sheriff shall receive from the General County Fund an annual salary not to exceed Twelve Hundred ($1,200) Dollars.” Section 2 repealed all laws in conflict therewith, and Section 3 made the Act an emergency measure. Thereafter, in November 1953, proceeding under the terms of this act, Sheriff Holder appointed June Holder his deputy sheriff, and between the dates of December 30, 1953 and April 7, 1956, June claimed and was paid $100 per month for 28 consecutive months (a total of $2,800) from the County General Fund on county warrants issued by the County Clerk and approved by the County Judge.

Appellants, as taxpayers for themselves and all other similarly situated, brought the present suit against ihe sheriff and his bondsmen alleging that Act 411 is unconstitutional and void and that the $2,800 paid to June Holder as deputy sheriff was illegally paid, that the sheriff’s accounts should be surcharged for this money so paid, and prayed that the county officials be enjoined from making further payments to the deputy sheriff under said act; also, for judgment against Sheriff Holder, Central Surety and Insurance Corporation— Ms bonding company, and June Holder, Ms deputy.

To this complaint appellees, Sheriff Holder, June Holder, his deputy, and Central Surety and Insurance Corporation, each filed a separate demurrer in which each alleged that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer of Sheriff Holder, overruled the separate demurrers of the bonding company and June Holder, and later, on a final hearing, dismissed the cause as to the bonding company and returned judgment against June Holder as deputy sheriff for $2,800, drawn by her under Act 411 above, and restrained the county officials from, disbursing any other funds under said act. The cause is before us on direct appeal of appellants and on a cross-appeal.

Appellants rely for reversal on the following points: ‘ ‘ 1. The Chancellor erred in sustaining the demurrer of the Sheriff and holding said sheriff not responsible for sums paid to his deputy. 2. The Chancellor erred in dismissing the appellants’ complaint as to the appellee, Central Surety and Insurance Corporation, the official bonding company of the Sheriff during all times and dates in issue in this cause.”

We hold that the chancellor, was correct in sustaining the demurrer of Sheriff Holder and in dismissing the cause against the bonding company. Clearly, we think Act 411 here in question is void and unconstitutional since it is a special act and right in the teeth of the provisions of Amendment 14 of the Constitution of Arkansas which says in plain, unmistakable language: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” It is conceded that Act 411 here applies only to Searcy County since this is the only county in Arkansas' having a population (by the 1950 census) of not less than 10,200 nor more than 11,000. “A law is special in a constitutional' sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate, (citing cases) . . • . In 25 R. C. L. p. 834, paragraph 81, it is said: ‘And where a statute fixes the compensation of an officer in a particular locality upon a basis entirely different from that of all other persons' filling like offices in the State, it has been held not tó be a general law, but within the constitutional prohibition against special legislation.’ ” Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. 2d 292. ‘ ‘ The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute,” Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617.

Act 411 specifically provides that the deputy sheriff here, June Holder, not the sheriff, shall receive the salary of $100 per month. This salary money never passed through the sheriff’s hands but was paid direct to his deputy and the sheriff was not charged with these funds. The sheriff’s bond contained this provision: “. . . the condition of the above bond is such that if the said Billy Joe Holder shall well, and truly and faithfully discharge and perform the duties of his office, and at the expiration of his term shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property as it comes into his custody as such Sheriff of Searcy County, Arkansas, and shall pay and deliver to his successor in office, or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables,' and other property which shall be in his hands, and due by him, then the above obligation shall be null and void, else the same to remain in full force and virtue.” (Duly executed by principal and surety and recorded.)

As indicated, the trial court found, in the circumstances, June Holder liable; that Sheriff Holder was not liable to appellants for the $2,800 paid to his wife, June Holder; and, also that appellee bonding company was not liable as his bondsmen — and we agree. We find no breach of this bond by the sheriff which would place any liability on the bonding company. It is stipulated that Sheriff Holder’s bond was the only one on which the bonding company was a surety.

We next consider appellees’ points for reversal on their, cross-appeal. “1. Act 411 of 1953 is constitutional. 2. Inequitable to render judgment against June Holder. 3. The court erred in rejecting the position of June Holder that sbe was an employee, as distinguishéd from an officer of Searcy County. 4. Appellants right to prosecute this cause was barred by laches and unclean hands.” We do not agree to any of these contentions.

What we have said above applies with equal force to points 1 and 2 and disposes of each. Both are untenable. Point 3, we hold that June Holder in the circumstances was clearly an officer and not an employee. Our general statutes provide that a sheriff may appoint one or more deputy sheriffs, § 12-1105 Ark. Stats. 1947. The trial court clearly found, however, “. . . that the general laws of the State did not at the time here in question authorize payment of a deputy of any salary or compensation over and above the various fees and emoluments that the sheriff was entitled to draw prior to the enactment of Act 411 of the Acts of 1953.”

Bouvier’s Law Dictionary defines “deputy” as “one authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter ... In general, a deputy has power to do every act which his principal might do; but a deputy cannot appoint a deputy.” In a Texas case (State v. Brooks, 42 Texas Reports 63) in which a deputy sheriff was convicted of a crime of embezzling tax money which he had collected for the State of Texas in his capacity as deputy sheriff, and one defense was that he was not an officer, the Supreme Court of that state held that: “A deputy sheriff is an officer within the meaning of the law punishing embezzlement of public money.” We think the case of Revis v. Harris, 219 Ark. 586, 243 S. W. 2d 747, relied upon by appellees is distinguishable for there we held that the mayor when he performed services for the Municipal Water and Light Plant was acting as an employee and not as an officer and was entitled to the money that he had received as a laborer for the water and light plant on a quantum meruit basis. Here, as indicated, June Holder, was an officer and not an employee. Appellees’ fourth, contention we find to he wholly without merit.

Affirmed.