author:
Paul Ward, Associate Justice.
      Jim Johnson, Associate Justice

text:
    Faubus, Chairman v. Miles.
    5-3319
    377 S. W. 2d 601
    Opinion delivered April 13, 1964.
    [Rehearing denied May 4, 1964.]

      Bruce Bennett, Attorney General, By Jack L. Lessen!) erry, Asst. Attorney General, for appellant.

      C. B. Nance, Jr., for appellee.
   Paul Ward, Associate Justice.

The subject of this litigation is the constitutionality of Act 19 of the First Extraordinary Session of the Sixty-Fourth General Assembly. Said Act 19 purports to accomplish two major objectives: one is to establish a system of voter registration and the other is to abolish the poll tax as a prerequisite to vote in any election.

Shortly after Act 19 was passed (with an emergency clause) and signed by the governor, a citizen and taxpayer (representing the citizens and taxpayers of the state) brought suit against the governor as Ex Officio Chairman of the State Board of Election Commissioners, the Chairman of the State Democratic Committee, and the Chairman of the Pulaski County Democratic Central Committee (representing .all officials charged with the responsibility of conducting elections), for a declaratory judgment under the authority of Ark. Stat. Ann. § 34-2501, et seq. (Repl. 1962).

In the petition it was in essence alleged (among other things): Act 19 provides that a citizen, otherwise qualified, “may vote for candidates seeking nominations of a political party for state, district, county, township, and municipal offices in party primaries and seeking election to offices in general elections, ivithout paying for or possessing a poll tax”; that such provision is contrary to the constitution; that the defendants will permit said unconstitutional act to be put in operation in a short time; and, that the time in which to enjoin the defendants is of the essence. Petitioner’s prayer was that the defendants be enjoined from:

“a. Permitting any person to qualify as a candidate in either a primary or general election for a State office or the office of any political subdivision of the State if such person has not paid his poll tax or does not exhibit a poll tax or evidence that he has paid his poll tax as required by the Constitution and statutes of the State of Arkansas.

“b. Permitting any person to cast a ballot in either a primary or general election for a candidate for a State office or the office of any political subdivision of the State if such person has not paid his poll tax or does not exhibit a poll tax receipt or other evidence that he has paid his poll tax as required by the Constitution and statutes of the State of Arkansas.

“c. Certifying as a nominee for any political party any candidate for a State office of any political subdivision thereof any person who has not paid a poll tax as required by the Constitution and statutes of the State of Arkansas.

“d. Placing on the official ballot for the general election a nominee or person unless he has paid the poll tax required by the Constitution and statutes of the State of Arkansas.

“e. Permitting any person to cast a ballot on any issue or proposition other than a candidate' if such person has not paid his poll tax or does not exhibit evidence of payment of his poll tax as required by the Constitution and statutes of Arkansas.”

In addition to the above, petitioner prayed that Act 19 be declared unconstitutional insofar as it seeks to permit a person (otherwise qualified as an elector) to be a candidate or to cast a ballot in any election other than for the positions or offices set out in Amendment 24 of the Constitution of the United States.

To the above complaint defendants demurred on the ground that it did not state allegations sufficient to constitute a cause of action. Defendants also answered, denying Act 19 is unconstitutional in any part, but asserting it is authorized by Amendment 39 to the Constitution of Arkansas. The prayer was that the complaint be dismissed and that Act 19 be declared constitutional.

The issues posed by the foregoing pleadings were presented to the chancery court. Whereupon the court, after making certain findings of fact, entered a Declaratory Judgment (in essence and substance) as follows:

(1) The defendant’s demurrer is overruled.

(2) Act 19 is constitutional insofar as it provides for voter registration and voting for those officials enumerated in Amendment 24 to the U. S. Constitution, but it is unconstitutional in all respects insofar as it seeks tó permit a person to vote for a state,' district, county, township or municipal office or on a state or local issue without having paid for a poll tax.'

(3) The defendants (appellants here) are enjoined from doing any of the things mentioned in the prayer of the complaint as heretofore set out.

On appeal from the above Declaratory Judgment, appellants urge a reversal in part, relying on the grounds hereafter discussed. We acknowledge appreciation of the Amici Curiae brief presented by the Arkansas League of Women Voters and the Arkansas State AFL-CIO.

The Issue Defined. The basic issue presented for our decision, briefly státed, is whether Amendment 39 to the State Constitution gives the legislature the power to dispense with the payment of a poll tax as a prerequisite for voting. It is apparently conceded by all parties (as was held by the trial court) that a poll tax is no longer a prerequisite to voting in a primary or general election for persons running for federal offices (i.e., offices mentioned in Amendment 24 to the U. S. Constitution). The basic issue above mentioned is therefore limited in this opinion to the poll tax as a prerequisite to voting for persons running (in a primary, general, or special election) for a state, district, county, township or municipal office, or voting on a state or local issue, or in a school election. All such offices, officers, or issues shall hereafter (for brevity) be referred to as state (as opposed to federal) offices, officers, or issues.

It is our opinion that said Amendment 39 does not give the legislature the power to dispense with the poll tax as a prerequisite for voting in state elections (as previously limited and defined). In order to make clear the reasons for our opinion, we set out below a brief resume of the pertinent portions of our constitution.

(a) Section 1 of Article 3 of the Constitution (as amended in 1920 by Amendment 8) provides: that every' citizen 21 years old who has resided in the state 12 months, in the county 6 months, and in the voting precinct 1 month (with certain exceptions) and who has paid a poll tax, shall be allowed to vote. (Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, interprets this amendment to mean a poll tax is a prerequisite to voting.)

(b) Amendment 11 (adopted in 1926) requires every male citizen over 21 years of age to pay an annual per capita tax of $1.00 for school purposes.

(c) Section 2, Article 3 of the Constitution provides that the right to vote shall not be made to “depend upon any previous registration of the elector’s name . . (Emphasis added.)

(d) Amendment 39 (adopted in 1948) which is being interpreted here, gives the legislature power to do two things: One is to “ enact laws providing for a registration of voters”; and the other is “to require that the right to vote . . . shall depend upon such previous registration”.

Three obvious conclusions are readily deducible from the above constitutional provisions. One, that previous to the adoption of Amendment 39 the legislature had no power to pass a “registration” law (due to Section 2, Article 3). T%uo, that the legislature did have the power (by virtue of Amendment 39) to pass a “registration” law. Three, that the legislature had the power (by virtue of Amendment 39) to make “registration” a prerequisite to voting in any election. We are therefore driven to the conclusion that insofar as Act 19 requires compliance with Two and Three just mentioned, it is constitutional.

We are convinced, however, that the people, in adopting Amendment 39, did not intend to do away with the necessity of paying a poll tax in order to vote. Perhaps the most obvious and the most forceful reason (why the people did not so intend) is that if they so meant, they would have so stated—it would have been easy to do so.

In addition to the above, there are other forceful reasons why we think Amendment 39 did not do away with the necessity of a poll tax in order to vote. The payment of a poll tax is only one of several qualifications of an elector required by Amendment 8 as heretofore pointed out. If Amendment 39 gives the legislature power to abolish the poll tax (as a prerequisite to voting then it would seem to follow also that the legislature could change or abolish the qualifications pertaining to age and residence. Such an interpretation amounts to holding Amendment 39 repeals Amendment 8 by implication. Repeal by implication is not favored, and the legal presumption is against such repeal. These rules of construction are well established and they apply with equal force to statutes and constitutional amendments. See: Polk v. Corning School District No. 8 of Clay County, 202 Ark. 1094, 155 S. W. 2d 342, and Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. 2d 361.

We find no merit whatever in the argument advanced by appellants that Amendment 24 to the Constitution of the United States abolishes the poll tax as a prerequisite to voting in state elections (as previously herein defined). Said amendment, in material parts, reads:

“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative- in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” It is abundantly clear from the above quoted language that said Amendment 24 has nothing to do with state elections (as previously herein defined).

Section 14 of Act 19 sets up a temporary system of registration ‘4 applicable to all elections held in this State after the 1st day of June, 1964, and before the 1st day of July, 1965”. We reiterate that the legislature has the power to require a persons to “register” before he can vote (in any election) even though such person has paid for a poll tax in due time as provided by law. "We call attention, however, to certain provisions of the section which purport to substitute a “free” poll tax (for registration purposes) in lieu of a poll tax for which the voter has paid $1.00 (in due time as provided by law). It is our conclusion that the legislature has no power, in state elections (as heretofore defined), to substitute said “free” poll tax (for registration purposes) in lieu of a poll tax for which the voter has paid $1.00 (in due time as provided by law). It is our conclusion that the legislature has no power, in state elections (as heretofore defined), to substitute said “free” poll tax for the poll tax required by Amendment 8 which provides that the voters 4 4 shall exhibit a poll tax receipt oí other evidence that they have paid their poll tax ...” (Emphasis added.) To hold otherwise would be to approve a subterfuge for evading the letter and the spirit of a plain constitutional provision. The Constitution (Amendment 40) directs that the money raised from the payment of poll taxes shall go to support the public schools. This important source of revenue for a worthy purpose, in our opinion, is entitled to protection by the courts until the people (by amendment) direct otherwise.

With the elarificaions herein mentioned, the judgment of the trial court is affirmed.

Affirmed (as clarified).

Johnson, J., concurs.

Jim Johnson, Associate Justice

(concurring). I agree with the majority opinion wherein it is determined that Amendment 39 to the Constitution of the State of Arkansas and Amendment 24 to the Constitution of the United States in no way repeal Amendment 8 to the Constitution of the State of Arkansas. This determination, of course, renders void that portion of Act 19 of the First Extraordinary Session of the Sixty-fourth General Assembly which sought to abolish the poll tax as a requisite to vote in state elections. I concur in this separate opinion for the reason that it is my view that, while this declaratory judgment action was confined to the narrow issues discussed in the majority opinion, in the public interest the Court should have further discussed the remaining portions of Act 19 which immediately affect the right of citizens of this state to vote.

First, I feel that it should be pointed out that the valid portions of Act 19 do not radically change the law as it existed prior to the passage of Act 19. Every person who possesses a valid paid 1963 poll tax receipt, and who is otherwise qualified under existing law, can still vote for candidates for federal office until October 1. 1964 as was true under the old law. The new law simply goes further and provides that those persons who failed to qualify by purchase of a 1963 poll tax will be permitted to vote, if they otherwise qualitfy, simply by registering with the county collector during the last 20 days of April of 1964. These registrants will be issued a so-called “free” poll tax receipt which will permit them to vote for candidates for federal office until October 1. As things now stand, the holders of current paid poll tax and “free” poll tax receipts, by virtue of the valid portions of Act 19, will be permitted to vote for candidates for federal office in the summer primaries of 1964. Only those holders of a valid paid poll tax receipt will be permitted to vote for candidates for state and subdivision offices. • ■

I feel that it is necessary now to project the effect of the holding of the Court beyond the summer primaries. Here again the law has not. been materially changed for those who pay the poll tax prior to October 1, 1964. By virtue of the valid portions of Act 19, those who hold a valid paid poll tax receipt issued prior to October 1, 1964, will be considered properly registered for all purposes until July 1, 1965. That is, such registrants, if otherwise qualified, will be permitted to vote in the November, 1964, general election for candidates for state and federal office. Those registrants who hold only the “free” poll tax receipts will be permitted to vote, if otherwise qualified, for candidates for federal office only, provided they register again during the last 20 days of September, 1964, and such registration will be valid for that limited purpose until July 1, 1965.

In order to be registered beyond July 1, 1965, both the holders of paid poll tax receipts and those who have not paid a poll tax must register with the county collector at any time during the period between January 1, 1965 and April 10, 1965. The holders of valid paid poll tax receipts will continue to enjoy the privileges of voting in all state and federal elections. All others who register will be limited to the privileges of voting for candidates for federal office only.

My second reason for concurring by means of a separate opinion is that I feel that the Court should have pointed out that the net effect of the majority holding, in which I am in complete agreement, is that the people alone have the power to alter the basic difficulty presented by the adoption of Amendment 24 to the Constitution of the United States. Until the'voice of the people of Arkansas is heard by the repeal of the portion of the Constitution of the State of Arkansas requiring the payment of a poll tax as a requisite to voting, this state will be faced with a dual registration system and dual balloting as a resulting necessity.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Hardaway v. State.
    5104
    377 S. W. 2d 813
    Opinion delivered April 13, 1964.
    [Rehearing denied May 11, 1964.]

      Paul K. Roberts, for appellant.

      Bruce Bennett, Attorney General, by John P. Gill, Asst. Atty. Gen., for appellee.
   Sam Robinson, Associate Justice.

Appellant, A1 Hardaway, -was convicted of possessing untaxed alcohol and resisting an officer. Appellant, Victor Hardaway, was convicted of assaulting an officer and interfering with an officer. The alleged offenses grew out of the action of peace officers in searching the home of A1 Hardaway on authority of a purported search warrant. Untaxed alcohol was found in the house and later was introduced as evidence at the trial.

The issues appellants raise on appeal are the validity of . the search and the correctness of an instruction given by the court telling the jury that the search warrant was valid. Prior to the trial no motion was made to suppress the evidence, and during the trial no objection was made to the introduction of the evidence; but after both the State and the defense had rested, appellants filed a motion to suppress the untaxecl alcohol as evidence, alleging that the purported search warrant was invalid. The court overruled the motion; appellants made no objection and saved no exceptions. Likewise, appellants made no objection and saved no exceptions to the action of the court in giving the instruction to the effect that the search warrant ivas valid.

Under the provisions of Act 555 of 1953, the saving of formal exceptions to orders and rulings of the court is unnecessary; hut this Act does not apply in criminal cases. McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805. Objections and exceptions are necessary in a criminal case of this kind to preserve the point for review on appeal. Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12; Powell v. State, 231 Ark. 737, 332 S. W. 2d 483.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Peek v. Bank of Star City.
    5-3223
    377 S. W. 2d 158
    Opinion delivered April 13, 1964.

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Fulk, Lofton, Wood, Lovett & Parham, for appellee.
   Jim Johnson, Associate Justice.

This suit resulted from a rather involved series of hanking transactions frequently called check kiting. Sometime late in December, 1961, the cashier of appellee Bank of Star City advised one of its customers, the late J. Thurman McCool, that he had a number of bank drafts being returned unpaid and that he would either have to deposit sufficient funds to cover these drafts or the bank would accept future drafts for collection only. McCool had several accounts at this bank including one styled “Business Machines Company” and another “Jefferson Printing Company.” McCool had sold appellant, Noah S. Peek, Jr., quite a number of installment contracts and notes for business machines McCool had sold to others. On January 1, 1962, McCool obtained a check on a “customer’s draft” form from appellant, apparently intended as an advance on several contracts appellant planned to buy from McCool. Appellant testified that when he signed the customer’s draft form, it was dated January 1, 1962, the figures “500.00” were typed in, as was “Citizen’s Bank, England, Arkansas.” Appellant signed the check and wrote “Peek Farm Service” above his name. On January 2nd when McCool presented the check to appellee bank, the check was payable to “Peek Finance Company,” the “sum of $22,500.00” was imprinted on it with a checkwriter, two 2’s and a comma were typed in front of the 500.00, and the words “to establish account” was also typed on the face of the check. On the back was a rubber-stamp endorsement, “For deposit only, Peek Finance Company.” Appellee’s cashier opened an account styled “Peek Finance Company” for which McCool signed the signature card as the only authorized signer for this account, and received $2,450.00 in cash. During the nest two days appellee received over $14,000.00 worth of drafts returned which had been credited to McCool’s Business Machines Company account, which appellee deducted from McCool’s Peek Finance Company account. On January 5, 1962, the Citizens Bank of England, being unable to contact appellant, returned the check because there were not sufficient funds in the Peek Farm Service account to pay it, and so advised appellee bank by telephone. Appellee bank put the check through for payment a second time and it was returned with the following notation on the back: “Protested—check was altered —-forged and counterfeit signature and further the body of check was altered and raised. Noah S. Peek, Jr.” During this time MeCool disappeared and was later found dead. After making demand for payment of the cheek, appellee filed suit in Jefferson Circuit Court on March 23, 1962, against appellant alleging that it had received the check for value and without notice of any infirmity thereon and prayed judgment for $22,500.00. The matter Avas tried on August 6, 1963, and the jury returned a verdict for appellee in the sum of $8,500.00. From judgment on the verdict, appellant has prosecuted this appeal urging that the verdict of the jury Avas per-A^erse and in conflict Avith the instructions of the court and the eAddence.

The cashier and other AAdtnesses of appellee testified about drafts Avhick had been credited to McCool’s Business Machines Company account being returned unpaid to appellee, Avho in turn charged the drafts, together AAdth the $2,450.00 cash given MeCool, against McCool’s Peek Finance Company account for a total of $16,818.75. Appellant contends that under no conceivable posture of the evidence in this case applied under the law given in the instructions could the jury have validly found that appellant'Avas indebted to appellee in the sum of $8,-500.00, the amount of the verdict, and that such amount AAras purely speculative, apparently a jury attempt to compromise the losses between the parties, and therefore perverse. The testimony in the case at bar AAras sharply conflicting, indicating such negligence on the part of appellant as to support a verdict for the full $16,818.75, and on the other hand indicating such negligence on the part of appellee as to support a verdict for axopellant. The rule here applicable Avas simply stated in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49: “It is true that the verdict is not consistent, but this is not grounds for us to reverse the judgment, as it is supported by very substantial and sufficient testimony.”

Appellant next contends that his motion for a directed verdict should have been sustained. At the close of appellee’s testimony, appellant moved that a verdict be directed in his favor on the ground that giA^en its highest probative value the evidence elicited in favor of appellee was insufficient to constitute grounds for any recovery by appellee against appellant, which was denied. This motion was renewed at the close of appellant’s case by means of an offered binding instruction, which was refused by the court. In Neal v. St. L.I.M.& S. Ry. Co., 71 Ark. 445, 78 S. W. 220, this court said:

‘ ‘ The pratcice of directing a verdict for the defendant when it is clear that the evidence is not sufficient to make out a case for plaintiff is a wise one, for it saves time and costs, and expedites the business of the court; but a case should not be withdrawn from the jury in that way unless it can be said as a matter of law that no recovery can be had upon any reasonable view of the facts which the evidence tends to establish. Catlett v. Railway Company, 57 Ark. 527; Texas S P. Ry. Co. v. Cox, 145 U. S. 593; 6 Enc. Plead. & Prac. 679-680.”

Under the long standing practice in this state, even where ”... we think there is not much evidence to sustain the assertion of the plaintiff, he had, we think, the right to submit the question to the jury. . . .” Hutchinson v. Gorman, 71 Ark. 305, 73 S. W. 793. And where, as here, the evidence was substantial and certainly conflicting, the trial court did not err in refusing to direct a verdict for appellant.

Appellant finally urges that two of the instructions offered by appellee and given by the court were prejudicially erroneous. We have reviewed all of the instructions, whether offered by appellee, appellant or the court. Taken as a whole, including the two complained of instructions, we find that the instructions fairly correlate the testimony to the applicable law, including the Uniform Commercial Code. Finding no error, we therefore affirm.


author: Frank Holt, Associate Justice.

text:
    Ted Saum & Company v. Swaffar.
    5-3248
    377 S. W. 2d 606
    Opinion delivered April 13, 1964.

      J ohn E. J oyce and Glen Wing, for appellant.

      Davicl J. Burleson, for appellee.
   Frank Holt, Associate Justice.

The question presented in this case is the right of the appellee, Richard Swaffar, to maintain the present action for damages against the appellant, Ted Saum and Company, a corporation, based upon the alleged conversion of appellee’s truck. This action resulted when Mrs. Ruth Saum brought a foreclosure proceeding in chancery court to collect the balance due on a note made payable to her by the appellee and secured by a chattel mortgage on appellee’s truck. The appellee filed a general denial and a cross complaint against Mrs. Saum and the appellant, Ted Saum and Company, a corporation, for damages, alleging an unlawful conversion by them of appellee’s truck. The issues were properly joined with the appellant specifically pleading, inter alia, the defense of res judicata.

Upon trial the Chancellor awarded Mrs. Saum a judgment for $1,064.56 in her foreclosure suit against the appellee and dismissed appellee’s counterclaim against her for conversion of his truck. The Chancellor awarded appellee judgment for $4,500.00 against appellant as damages for conversion of the truck from which judgment appellant brings this appeal. There is no cross-appeal. For reversal appellant contends that the issue of appellant’s liability to appellee is res judicata.

Appellee had driven a truck for appellant for several years before entering military service in August of 1958. He borrowed $3,550.00 from Mrs. Saum to pay off the balance due on his truck. The certificate of title was "delivered to him. Since he was unable to sell his truck before entering military service, he left it with appellant under a lease agreement. During a part of his one year in the service appellee’s truck was operated pursuant to this agreement. Appellant then sold the truck for $1,-500.00 to another driver. The appellee contends it was an absolute sale- without his knowledge and consent, therefore, it constituted an unlawful conversion of his property. The appellant contends the sale was conditional subject to appellee’s approval and delivery by him of the title certificate. Further, that appellee’s truck was always available to him upon payment of the balance of the mortgage on the truck to Mrs. Saum.

In December, 1959, appellee filed an action in the Washington County Circuit Court against Ted Saum, individually, for damages for unlawful conversion of the truck. Neither Mrs. Saum nor appellant, Ted Saum and Company, a corporation, was a party to that suit. Following this the present action was instituted in chancery court and while it was pending, the case in circuit court was tried in November, 1960. The jury returned a verdict for the defendant, Ted Saum, individually, and judgment was rendered in conformity with this verdict. Therefore, the appellant insists that the defense of res judicata is applicable to the present litigation. The appellee, however, contends the issue in this proceeding is not res judicata because the parties are not the same. Also, he argues that the appellant corporation’s liability is not limited to the action of one agent but is derived from the action of any of its agents, or the possibility that some agent other than Saum might have been involved in the alleged conversion.

The appellee’s pleadings in the previous litigation in circuit court and the present action in chancery court refer to one issue, the alleged conversion of appellee’s truck. The only difference between the two law'- suits, as between appellant and appellee, is that in the first one appellee names Ted Saum, individually, the defendant and in the present proceeding appellee names Ted Saum and Company, a corporation, as the defendant. Also, the cross complaint filed by appellee in the present action alleges: ‘ ‘ * * * that all the transactions hereinafter mentioned wrere between Richard Swaffar and Ted Saum, the husband of the plaintiff herein, and in all of such transactions the said Ted Saum was acting for the cross defendant, Ted Saum and Company, a corporation,-”. [Emphasis added] The proof conforms to this allegation.

We agree with the appellant that the present action is barred by res judicata. We think that the principle announced by us in Davis v. Perryman, 225 Ark. 963, 286 S.W. 2d 844, is controling in the case at bar. There wre quoted with approval:

* * a judgment in favor of either the master or principal on the one hand, or the servant or agent on the other, sued alone, is res judicata, or conclusive, * * * in a subsequent action against the other, a deriviative responsibility being present.” See, also, Patterson v. Risher, 143 Ark. 376, 376, 221 S. W. 468. In the case at bar the liability of appellant, Ted Saum and Company, a corporation, is derivative from tlie acts of its agent, Ted Saum, according to the pleadings and proof of the appellee. We think the following language from 50 C.J.S., Judgments, § 757, is applicable:

“Persons udio, although not parties or privies, were so connected in interest or liability with plaintiff or defendant in the former action that the judgment may be regarded as virtually recovered for them may avail themselves of such judgment as res judicata in a subsequent suit. So one wdioso liability is dependent on, or derived from, the liability of one who was exonerated in an earlier suit brought by the same plaintiff on the same facts may take advantage of the bar of the prior judgment even though he ivas not a party to the earlier action or in privity with the defendant therein.” [Emphasis added]

The language in Sides v. Haynes, 181 F. Supp. (Ark. 1960) concisely states the law in this state as to the reason for the doctrine of res judicata. There the court said:

=::= * ipjie £riie reason f0r holding an issue res judicata is not necessarily for the identity or privity of the parties, hut the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issue.”

Further, res judicata is applicable not only to an issue actually litigated, but also governs as to matters within the issue that might have been litigated. Thomas v. McCollum, 201 Ark. 320, 144 S. W. 2d 467; Rose v. Jacobs, 231 Ark. 286, 329 S. W. 2d 170.

We' hold that appellee’s cause of action upon his cross complaint in the present litigation is barred by jes judicata. Therefore, since the judgment must be reversed on this point, we do not reach the other points argued by appellant.

The judgment is reversed and the -cause dismissed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Coates v. Coates.
    5-3220
    377 S. W. 2d 824
    Opinion delivered April 20, 1964.

      Marcus Fiets, Frierson, Walicer & Snellgrove, for appellant.

      Robert Branch, Kirsch, Cathey & Broivn, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a divorce case. The wife, Mrs. Billie H. Coates, filed suit against the husband, Joe F. Coates, alleging cruel treatment and/or indignities. Mr. Coates denied Mrs. Coates ’ allegations, and, by counterclaim, sought a divorce on the grounds of indignities and/or habitual drunkenness, both of which charges Mrs. Coates denied. The cause was heard by the Chancellor, the evidence being taken ore ten/us. There was a thorough airing of the matrimonial difficulties of these unfortunate people, with more than a score of witnesses testifying; and the record contains more than' 600 pages. The Chancery Court denied Mrs. Coates’ complaint, but granted Mr. Coates a divorce on the ground of indignities; and from that decree Mrs. Coates has appealed, urging four points:

“1. The decree of the Court awarding a divorce to appellee was against the clear preponderance of the evidence.
“2. The-Court should have awarded appellant a divorce and rights in appellee’s property.
“3. The Court should have awarded appellant an interest in the business of the Kingsway Club.
“4. Appellant is entitled to an additional award for attorneys’ fee and costs of this appeal.”

We dispose of all four of the points under our own topic headings.

I. Who Was Entitled'To A Divorce¶ If condonation had been brought into the case we would be strongly inclined to deny each party a divorce; but neither party offered the defense of condonation against the other. See Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24. Probably the reason condonation was not brought into the case was that each was anxious to be divorced from the other: They separated on January 22, 1963; and two days later Mrs. • Coates filed her suit and obtained a temporary restraining order to prevent Mr'. Coates from re-entering the home. Mr. Coates in. his testimony said that there was no possibility of the couple living together again: “I would not have her off the Christmas tree.” In studying the record we lay aside the matter of con-donation.

The parties were married in January 1953 and lived together until January 1963. A son was born in 1959, but since that time the parties have gradually become more and more disagreeable to each other. To recite all the evidence would serve no useful purpose. It is sufficient to say that there is ample evidence to support the Chancery decree awarding Mr. Coates a divorce. Mainly it was a question of which set of witnesses the Chancellor would believe. He saw them and evaluated their veracity. We see only the printed page. The. Chancellor believed Mr. Coates’ witnesses to corroborate his testimony, as to indignities; and we cannot say that the Chancellor’s findings are against the preponderance of the evidence. Likewise, the Chancellor saw Mrs. Coates and her witnesses and elected to disbelieve them; and we cannot say that such result is contrary to the preponderance of the evidence. Thus we dispose of all of the appellant’s points 1 and 2, except the matter of property rights.

II. Property Rights. This is the real bone of contention in the litigation, since both parties want a divorce. If the Chancellor had awarded Mrs. Coates a divorce, she would have been entitled to greater property rights than the Chancellor awarded her. But, since the divorce was awarded Mr. Coates as the wronged party, the matter of property rights must be based on such a decree. The parties own as tenants by the entirety their home in Paragould, but subject to a mortgage. The Chancery Court found and decreed:

“... it would not be to the best interest of the parties that the tenancy by the entirety be dissolved at this time, but that this court should reserve and does reserve the jurisdiction to dissolve the tenancy by the entirety in the light of changed circumstances; that under the existing circumstances and until the further order of this court,. the plaintiff shall, so long as she shall occupy said property as last hereinabove described as the home for herself and, the minor child of the parties, be entitled to the use and occupancy thereof free from interference on the part of the defendant, with the defendant to pay the mortgage loan payments, the taxes, the insurance premiums on the improvements, and the utilities of said residence, including heat, electricity and telephone, excluding, however, long distance telephone calls.
“The plaintiff shall also be entitled, during the period as last hereinabove defined with respect to the property owned by the entirety, to the use of the household goods, the household appliances and the household furnishings in said property and this court should and does reserve the jurisdiction to determine the rights of the parties with respect to said household goods in the event the plaintiff should cease to use the same -for the use of herself and their minor child in connection with the occupancy of the property owned by the entirety as above set forth.
“The defendant shall pay the plaintiff on the 4th day of each month beginning May 4, 1963, and monthly thereafter, the sum of $50.00 per month for the support for the minor child of the parties, William Mark Coates.
‘ ‘ The defendant shall pay to the plaintiff as alimony the sum of $100.00 per month on the 4th day of May, 1963, and monthly thereafter on the 4th day of each month, said award as to alimony and to support money being specifically subject to the jurisdiction of this court to change or modify the same in the event of changed circumstances with respect to the parties.”

The Court also allowed Mrs. Coates to keep $500.00 which she had withdrawn from the bank at the time of the separation. We think the Court showed wisdom in the decree. Certainly we cannot say that the Court abused its discretion in this property settlement.

There remains the matter of the Kingsway Club, which is a restaurant of some kind that Mr. Coates owned and operated before he married Mrs. Coates. She claims that she is entitled to a half interest in the restaurant as a partner. We find no element of partnership to have been shown. It was Mr. Coates’ club before the parties married; and Mrs. Coates worked in the club while she was his wife. Full details of the earnings of the club for the past several years were given. When Mr. Coates pays Mrs. Coates $100.00 a month alimony and $50.00 a month for the child, and keeps up the other payments which the Court required him to make, it seems to us that full justice has been done as regards property rights. Of course, should Mr. Coates fail to fulfill all of the provisions in the decree, then prompt recourse may be had against him and his property.

III. Court Costs And Attorneys’ Fees.' When the suit was first filed suit money of $250.00 was allowed Mrs. Coates’ attorneys. At the conclusion of the Chancery trial an additional $250.00 was allowed. Now, on appeal, we feel that an additional fee of $250.00 should be allowed Mrs. Coates’ attorneys, and also that Mr. Coates should pay all the costs of all the courts in this matter.

The decree of the Chancery Court is affirmed except $250.00 additional is allowed as attorneys’ fees, and all costs are to be taxed against Mr. Coates.

       All of these various claimed grounds for divorce come under the 5th sub-section of Ark. Stat. Ann. § 34-1202 (Repl. 1962).

       Mr. Coates has a cross appeal claiming- that he is entitled to a divorce on the ground of habitual drunkenness, even if we should hold that the Chancery Court was in error in awarding him a divorce on the ground of indignities. We do not reach the cross appeal because we affirm on direct appeal.


author: George Rose Smith, J.

text:
    McClure Ins. Agency v. Hudson.
    5-3243
    377 S. W. 2d 814
    Opinion delivered April 20, 1964.

      Cole & Scott, for appellant.

      Joe W. McCoy, for appellee.
   George Rose Smith, J.

This is a suit by the appellant for specific performance of an option to buy.the appellee’s home in downtown Malvern. The chancellor dismissed the complaint, finding that the option could be exercised, only by the United States of America for the purpose of acquiring the property as a site for a post office.

The appellant, an incorporated insurance agency, also engages in the real estate business under the trade name McClure Heal Estate. In 1962 McClure Real Estate obtained options upon four contiguous tracts, including the appellee’s property, for the purpose of offering them as a unit to the United States as a site for a proposed new post office. George McClure, president of the company, testified that in talcing the options he used a printed Government form so that all the options would be alike and so that they would conform to the single option that he in turn intended to submit to the Post Office Department.

The printed option form is entitled “Post Office Department Option to Purchase Land.” It recites that for a consideration of one dollar (which was not paid) and other valuable considerations, (not specified) Mrs. Hudson grants to the Postmaster General and his assigns an option to buy the property within 545 days for $8,000. If the use of the property for postal purposes is prohibited by covenant or by law the prohibition shall be considered a defect in the title. It is recited that the Postmaster General contemplates that a building to be used in whole or in part for postal purposes will be constructed on the property. At the end of the contract McClure typed in an additional paragraph, upon which he now relies, to the effect that the words “McClure Real Estate” should be substituted for any reference to the Postmaster General or the Post Office Department.

Mrs. Hudson testified that she signed the option with the understanding that the property was to be submitted as a post-office site. In view of the references in the contract to postal purposes we have no doubt that this was actually the intention of the parties. Even if the parties ’ intentions were not clear there would in any event be sufficient ambiguity in the matter to permit the introduction of Mrs. Hudson’s parol evidence.

McClure in fact offered the four tracts to the Government, but the offer was rejected in December of 1962. Another site for the post office was selected. Later on, in April of 1963, McClure Real Estate attempted to exercise the option for itself, but Mrs. Hudson refused to sell. This suit followed.

We think the chancellor reached the right conclusion. The option, which appears to have been without consideration, was at most an offer to sell the property to the United States as a site for a post office. When the Government rejected the offer its action had the effect of terminating the offer, so that it could not later be accepted. Williston on Contracts (3d Ed.), § 51; Restatement, Contracts, § 35.

Corbin explains the rule in this language: “The power of acceptance created by an ordinary offer is terminated by a communicated rejection. This is true even though a definite time was given by the offeror for considering his offer and the rejection is before that time has expired. When the offeror receives ‘ a notice of rejection, he is very likely to change his position in reliance thereon; one aspect of this is that he will not think it necessary to send a notice of revocation, in those cases in which he has the power to revoke. This has led to the rule that a definite rejection terminates the offeree’s power to accept.” Corbin on Contracts (1963), ^ 94. That rule governs, this case.

Affirmed.


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

text:
    Wallace v. Smith.
    5-3156
    377 S. W. 2d 827
    Opinion delivered April 20, 1964.

      Wayne Foster, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

The issue presented here grows out of a property settlement incorporated in a divorce decree.

Ruth Wallace (one of the appellants) and Kenneth B. Smith (the appellee) were divorced on July 16, 1956 —Case Number 9161. The decree awarded to Ruth custody of the only child, Levi Henry Smith, and it incorporated a property settlement AGREEMENT which had been worked out by the parties.

The AGREEMENT, after setting out certain items of support for Ruth and Levi Henry, contained, in substance, the following provisions: The parties are the owners of 68 acres of land (described in detail) on which is located a house; It is agreed to sell the house and 8 acres of land (more or less) for not less than $9,200 with which appellee was to pay “all outstanding indebtedness”; and, they agree to convey the rest of the property to Levi Henry.

On August 30, 1961, Kenneth. B. Smith filed a petition in Case Number 9746 (which by stipulation “is an aftermath of a divorce action . . . No. 9161”) against Ruth Wallace Smith in essential parts as follows:

1. On or about March 15, 1960, the court modified the decree of July 16, 1956, to the effect that the husband could sell the house and as much of the acreage as necessary to net the sum of $9,200, and if any acreage is left over, the balance to be deeded to Levi Henry;
2. Appellee had tried to sell the property but could get only $6,000 for all of it;
3. The prayer was that appellee be permitted to sell all the property and apply the proceeds on the debts.

To the above petition Ruth filed a demurrer, alleging a defect of parties and insufficient facts to constitute a cause of action. The demurrer was overruled. Then Ruth, as Guardian of Levi Henry, filed an intervention, contending that Levi Henry has a vested interest in the 68 acres of land, and that he should be made a party. In her answer she asked the court to enjoin appellee from disposing of the property. Appellee, thereupon, moved the court to dismiss the intervention.

Based upon the above pleadings and upon the record in the original divorce action, No. 9161, (which is a part of this record — No. 9746 — by stipulation of the parties) the trial court found: (a) The original decree was modified on February 18, 1960 to give appellee right to sell “such acreage as is necessary to net said Kenneth B. Smith the sum of . . . $9,200.00”; (b) the original decree “adequately provided for the Intervenor monetary support, insurance, and medical care”; (c) since the 68 acres will not net $9,200, there is no remainder in the property which intervenor may take as incidental beneficiary. The court then found in favor' of appellee, dismissed the intervention, and ordered appellant (Ruth Wallace) to execute a deed to anyone who purchases the said property, otherwise a commissioner will be appointed to execute the deed.

After careful consideration we have concluded that the trial court must he affirmed. The answer to the decisive issue presented here depends on the construction of the AGREEMENT entered into by the parents of Levi Henry. It is readily apparent that it is subject to two separate meanings, (a) It could be interpreted to mean that appellee was to sell 8 acres (more or less) with the house on it for what it would bring, and that the rest of the land be deeded to Levi Henry, (b) On the other hand, it could be interpreted to mean appellee was to sell all of the land, if necessary, to raise $9,200 (or less).

The trial court had a right to put its interpretation on the ambiguous contract or agreement. Hughes v. El Dorado Oil Co., 160 Ark. 342, 254 S. W. 663, and Swift v. Lovegrove, 237 Ark. 43, 371 S. W. 2d 129.

The trial court (on two occasions) construed the agreement to mean appellee could sell enough land (all if necessary) to raise $9,200 (or whatever amount the land would bring).

We are unwilling to say the trial court erred. In fact, the wording of the agreement, in our opinion, amply supports the trial court. It indicates the sale must bring “not less than $9,200”. Also, the inference is that there were debts in that amount which were to be paid. It is reasonable that the parties wanted said debts to be paid.

In view of what we have said and the conclusion reached, Levi Henry had no vested interest in the land and therefore was not a necessary party to the suit.

Affirmed.

Holt, J., not participating.

George Rose Smith, J., dissents.

George Rose Smith, J.

(dissenting). The contract gave Levi Henry a vested interest in the 60 acres, as a donee beneficiary. That interest could be reduced or extinguished only if the parties reserved the power to take that action. Restatement, Contracts, § 142. It seems to me that the majority have adopted a strained construetion of the agreement in reaching the conclusion that the power of modification was reserved.

The contract, after reciting the couple’s ownership of 68 acres, provided, that the house and eight acres would be sold for not less than $9,200, which was to be paid to the husband and used for the payment of debts. After the sale the rest of the property was to be conveyed to Levi Henry. There was no express reservation of the power to alter the contract to Levi Henry’s disadvantage.

I am unable to find an implied reservation. If the contract had provided that Levi Henry would receive all the purchase money in excess of $9,200, if the property should sell for a greater amount, then there would be some logic and fairness in requiring Levi Henry to contribute to the deficit if the house and eight acres should sell for less than $9,200. But that was not the agreement. Any excess over $9,200 would have gone to the appellee-husband. Thus Levi Henry is put in the position of gaining nothing if the house and eight acres could be sold for more than the specified price but of being penalized if the property should sell for less than the amount.

‘£ The reservation of power on the part of the promisee to change the beneficiary or otherwise to vary the terms of a gift promise must ordinarily be expressed in specific terms.” Restatement, Contracts, § 14-2. The pivotal question here is whether Levi Henry’s parents reserved “in specific terms” the power to alter the gift to his detriment. The majority seem to realize that this agreement is at best equally susceptible of two conflicting interpretations. "While I do not agree that both interpretations are equally reasonable, even upon the majority’s premise we still ought to hold that the power to revoke the gift was not retained in such specific language as the law demands.


author: Sam Bobinson, Associate Justice.

text:
    Goad v. Goad.
    5-3235
    377 S. W. 2d 822
    Opinion delivered April 20, 1964.

      Dinning & Dinnmg, for appellant.

      Pickens, Pickens & Boyce and John L. Anderson, for appellee.
   Sam Bobinson, Associate Justice.

Leslie J. Goad, a resident of Helena, had been an employee of the Mobil Oil Company since 1942; he died on the 3rd daji of February, 1962. He had a certificate of insurance issued by the Metropolitan Life Insurance Company under a master policy issued to his employer. Goad’s certificate was in the sum of $13,600.00. There was also due under the terms of the policy, a retirement annuity having a value of $1,722.12. Goad’s widow was named as beneficiary in the policy, but later, Goad’s children by a previous marriage were named as beneficiaries.

Subsequent to Goad’s death, his widow, Hattie, filed suit against the insurance company in the Phillips Circuit Court asking judgment on the contract of insurance. The insurance company filed the case at bar — an inter-pleader — in the Chancery Court of Phillips County for the purpose of determining the legal beneficiaries of the policy. The full amount involved, $15,322.12, was tendered and deposited in the registry of the court. The widow, Hattie, and the children of the deceased, Russell Lewis Goad, Helen Goad Foushee, Charles Hale Goad, and Jerry Leslie Goad, were made parties defendant for the purpose of determining the legal beneficiaries. The trial court held that the children were the beneficiaries. Mrs. Hattie Goad, the widow, has appealed.

First, appellant contends that since she had first filed suit against the insurance company in circuit court on the policy of insurance, the chancery court did not have jurisdiction to hear and determine the controversy; that the subject matter of the litigation was pending in circuit court, and that in a situation of this kind the court that first acquires jurisdiction has the right to conduct the matter to a final conclusion without interference from another court of equal dignity. Ordinarily this is true. Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279, S. W. 2d 557. But this rule is not applicable where, as here, the second suit is in the nature of an interpleader in chancery court. Chicago, R. I. & P. R. Co. v. Moore, 92 Ark. 446, 123 S. W. 233. The court said in American Co. of Ark. v. Wheeler, 181 Ark. 444, 26 S. W. 2d 115: “The chancery court having jurisdiction in the suit in the nature of a bill of interpleader, according to the usual practice, could restrain the several parties to the suit from proceeding in other courts to have the same matters adjudicated; ...”

In the case of Fulmer v. East Ark. Abstract & Loan Co., 173 Ark. 668, 293 S. W. 1018, the Abstract & Loan Co. instituted an action in the circuit court against Fulmer and named the Liverpool & London & Globe Insurance Company as garnishee. The insurance company filed an interpleader in the chancery court. There, this court said: “The insurance company was ready to pay this amount to whoever should be entitled to it. Fulmer and the abstract company each claimed to be entitled to the fund. Hence, in order to avoid a multiplicity of suits and in order to escape costs, the insurance company was entitled to some relief of an equitable nature concerning the fund in dispute, and should not be burdened with the cost of litigation because there were conflicting claimants for the fund. In no other, way conld it have protected itself except by filing a complaint in equity in the nature of a bill of interpleader.”

The widow, Hattie Goad, appellant, was named as beneficiary in the policy, but before his death, Goad changed the beneficiary to his aforesaid children and notified the insurance company of the change. Goad also executed a will in which he provided that the beneficiary be changed. Appellant contends that due to his mental and physical condition, Goad was not capable of making a valid change of beneficiary by will or otherwise.

It appears that Goad became ill and entered a hospital in Memphis August 30,1961; that he was discharged from that hospital on September 11, 1961. On September 18, 1961 he went to Bradford to visit his son and became ill while there. On his return to Helena, he entered a hospital for a short time, and finally, on November 16, 1961, he entered St. Vincent’s Hospital in Little Rock. He had sclerosis of the liver; his condition deteriorated and he became progessively worse until he died February 3, 1962.

On December 3, 1961, while in St. Vincent’s, he signed a will, and an insurance form for change of beneficiary in his certificate of insurance. The will was mailed to his sister, Mrs. Wilson, at Bradford. His daughter, Mrs. Foushee, was one of the witnesses to the will. A lawyer was consulted about the matter, and on his advice a new will was prepared embodying the same terms as the first will. Goad, along with two proper witnesses, signed the second will on January 3, 1962. The will specifically named the Goad children as beneficiailes of the policy of insurance.

Appellant introduced strong evidence that Goad was in such condition that at the time he executed the will and the change of beneficiary form he was not capable of making a valid will or change of beneficiary. On the other hand, appellees also introduced weighty evidence to the effect that Goad did have the mental capacity to execute both instruments.

We have carefully reviewed the evidence, but it would serve no' useful purpose to abstract it here. The chancellor had the opportunity to observe the witnesses and was in a much better position than is this court to determine the weight that should be given to the testimony of each and every witness. There is one outstanding uncontroverted fact, however, that we.think is sufficient to tip the scales in favor of appellees. In changing the beneficiary in the certificate of insurance, Goad carried out an intent that had been expressed at a time when there is no question but that he was possessed of' all his faculties. On re-direct examination, appellant, Mrs. Goad, testified that Mr. Goad had stated at a time when it is not contended that he was in any way incompetent, that he thought his inusrance should go to his children rather than to her people.

Appellant also contends that the signature on the will is not the genuine signature of the testator, but we cannot say that the chancellor’s finding that the signature is genuine is contrary to a preponderance of the evidence.

Affirmed.


text:
    Johnson v. State.
    5098
    377 S. W. 2d 865
    Opinion delivered April 20, 1964.
    [Rehearing denied May 18, 1964.]

      Edward V. Trimble, Charles E. Scales, for appellant.

      Bruce Bennett, Attorney General, by Richard B. Adhisson, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a conviction of murder in the first degree. On February 8, 1963, Jerry James Johnson was charged by information filed in the Pulaski Circuit Court. The information alleged that appellant murdered Aliene Arrington on July 31, 1962, with malice aforethought, deliberation and premeditation in the perpetration of the crime of robbery by stabbing her with a knife. After the bench warrant issued thereon was returned, the court ordered appellant to the State Hospital for observation, where he was found to be without psychosis. Thereafter on May 6,1963, the court appointed counsel for appellant, his not guilty plea was entered and the case was set for jury trial on May 27,1963. On the third day of trial, after testimony of State’s and appellant’s witnesses, instructions of the court and argument of counsel, the jury returned a verdict finding appellant guilty of murder in the first degree. On July 8,1963, appellant was sentenced to death by electrocution. On July 19,1963, after hearing, appellant’s motion for a new trial was denied. This appeal followed.

For reversal appellant primarily argues three points: (1) members of appellant’s race were intentionally, deliberately and systematically limited in the selection of petit jury panels; (2) that appellant has been denied his rights under the Fourteenth Amendment of the United States Constitution in that Negroes have been excluded from being jury commissioners for the past fifty years; and (3) that appellant’s confession was coerced and involuntary and his motion to suppress the confession and the evidence should have been granted.

This was a particularly abhorrent crime. The decedent, a lady in her fifties, owned and ran a small neighborhood grocery in Rixey, a community between North Little Rock and Jacksonville. One mid-summer afternoon she was found in the store by her aged mother,, hands and feet tied, dead. She had suffered about twenty stab wounds. Some months later, early in February,, 1963, while in jail on another charge appellant asked to talk to the jailer and when he did so, confessed verbally to killing Mrs. Arrington. According to the testimony of several of the officers, appellant repeated his-story to several deputy sheriffs and the sheriff. Appellant took officers to the store, showed them the scene and the route he walked, then took them to talk to a man from whom he borrowed a pocket knife the morning of the killing, told them of throwing away his gloves, burning his clothes and hiding some of the stolen money in a flashlight. Appellant related that when his mother asked where his clothes were that evening, he told her they were out on the clothes line, then took similar ones outside and dirtied them, telling his mother that a dog-had dragged them off the line; also that his step-father-that evening (the night of the mnrder) asked for the pocket knife appellant had borrowed to return to its owner. At trial appellant denied having committed the offense and testified that he confessed to the crime on a dare and in a desire for publicity. Testimony of appellant’s and State’s witnesses, however, neatly corroborated the confession appellant made to the sheriff and his deputies. For instance, appellant’s step-father testified that appellant went to work with him the morning of the killing unloading slabs, borrowed a pocket knife, left work about eleven o’clock, and that when appellant came home that night he was asked where the clothes were that he had worn earlier and the step-father asked for the knife to return it to his co-worker. The co-worker testified about the loan of the knife, that he had asked the step-father to return it to him and that the stepfather had done so the following day, and that the coworker had so stated to the sheriff’s deputies at the request of and in the presence of appellant during the sheriff’s investigation of appellant’s story. Appellant had explained how and where he committed the crime in considerable detail, saying .that he decided to kill decedent so that she could not identify him if the police showed her the pictures of him they had. According to the testimony of the officers, appellant said he had his arm around the lady’s neck while she'was trying to call for someone, he picked up a butcher knife and stabbed her once. The knife bent, so he tied her up with string, went to the front of the store where he had dropped the pocket knife, then went back and stabbed her a number of times. All in all, review of the testimony impels a finding that there was substantial evidence to support the verdict of the jury.

The arguments, citations and facts of this appeal are remarkably similar to Stewart v. State, 237 Ark. 748, 375 S. W. 2d 804.

We shall consider appellant’s last point for reversal first, that is, that appellant’s confession was coerced and involuntary and his motion to suppress the confession and the evidence should have been granted. We find no objection on this point in the trial record. Even if there had been snch an objection, the testimony of the officers in the case at bar, along with competent proof of the commission of this crime, would have been admissible. Norton v. State, 237 Ark. 783, 376 S. W. 2d 267. Moreover, appellant admitted at trial that he had made such statements to the officers and confessed to other crimes as well. We consider this point, therefore, to be without merit.

Appellant next argues that members of appellant’s race were intentionally, deliberately and systematically limited in the selection of petit jury panels. After selection of the jury, appellant in chambers moved to quash the entire panel on the grounds that “the jury commissioners of Pulaski County have allowed race to be a factor in its determination of qualified jurors, that the jury commissioners have not made any specific attempt to acquaint themselves with qualified Negro electors in this county, and that the proportion of Negroes that are called on the regular and special panels is less than the proportionate number of qualified Negro voters in this county.” The court then asked if appellant wanted to introduce any proof in support of this motion. Appellant did not. Several weeks after the trial, appellant renewed this motion and was allowed by the court to present testimony in support of the motion, following which the motion was denied. Review of the testimony offered in support of the motion does not convince us that the jury commissioners failed to observe the standards against discrimination in jury selection set down by the United States courts. However it is not necessary for us to determine this. Appellant was offered the opportunity to present testimony in support of his motion prior to the jury’s being sworn to try the case, at which time appellant by statute had the right to examine the jurors under oath as well as other witnesses whose attendance could be coerced (such as the jury commissioners). Ark. Stat. Ann. §§ 43-1901 — 43-1929 (1947). Having failed to do so at the appropriate time, it is beyond our province to legislate such new procedure as would permit an accused to find fault with, a jury or a jury panel long-after an unsatisfactory verdict.

Appellant’s third point urged for reversal is that appellant has been denied his rights under the Fourteenth Amendment of the United State Constitution in that Negroes have been excluded from being- jury commissioners for the past fifty years. This precise point was raised in Moore v. Henslee, 276 F. 2d 876. In its per curiam opinion, the Eighth Circuit Court of Appeals said this:

“The focal point of appellant’s contention, as advanced in their brief and in oral argument, is that discrimination in the selection of jury panels in Miller County, Arkansas, is necessarily practiced because the Negro race is not represented on the jury commission which is composed of three citizens. It is suggested that ‘it is almost impossible’ for an all-white jury commission to keep informed of the habits and qualifications of the Negro population so that eligible members of that race ■can be selected for jury duty. We are not persuaded by this novel argument which fails to find support in either precedent or logic. Adoption of the principle contended for would require indulgence in the unwarranted presumption that jury commissioners entirely of one race will not discharge their ‘duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. ’ Cassell v. State of Texas, 339 U. S. 289, 70 S. Ct. at page 633. Moreover, we are satisfied that the theory advanced by appellants would in reality lead to complexities in the administration of an important facet of our system of trial by juries. Application of the principle contended for, could not, in our view, be limited to the white and negro races. It would encompass all races, and the numerous nationalities and religious denominations existent in this country. The words of Mr. Justice Reed, speaking for the Court in Akins v. State of Texas, 325 U. S. 398, at page 403, 65 S. Ct. 1276, at page 1279, seem to be peculiarly appropriate :
‘The number of our races and nationalities stands in the toay of evolution of such a conception of due process or equal protection. Defendants under our criminal statutes are not entitled to demand representation of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination ‘in the selection of jurors on racial grounds.’ (Emphasis supplied.)”

We can add nothing to the eloquence or the reasoning of the Court of Appeals, and therefore find no merit in appellant’s contention on this point.

As is our wont in this type of criminal appeal, we have examined and reviewed every objection in the record and find no error. The judgment of the trial court is therefore affirmed.


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

text:
    Charles v. Pierce.
    5-3236
    378 S. W. 2d 213
    Opinion delivered April 27, 1964.

      [Rehearing denied May 25, 1964.]

      Dorothy Dixon Hatchett, Neill Reed and U. A. Gentry, for appellant.

      Gordon S Gordon, for appellee.
   Carleton Harris, Chief Justice.

T. 0. Cullum died intestate in Van Burén County in 1928, leaving a widow, Laura, and no lineal descendants. Accordingly, the widow was endowed of an undivided one-half interest in the real estate owned by her husband, and the brothers and sisters (or descendants) of Cullum inherited the other half. Cullum and his wife had deeded ten acres of land in 1915 to Anna Johnson. Cullum was the owner of the Northeast Quarter of the Southeast Quarter of Section 31, with the exception of the ten acres, and of the Southwest Quarter of the Southwest Quarter of Section 32, Township 11 North, Range 12 West, by patent from the U. S. Government. On January 17, 1934, Laura Cullum gave a mortgage to appellee, Ball Ground Monument Co., Inc., on a “part of the Northeast Quarter of the Southeast Quarter of Section 31, 30 acres,” and a “part of the Southwest Quarter of the Southwest Quarter, 30 acres” of Section 32, Township 11 North, Range 12 West, to secure the payment of a certain indebtedness. Thereafter, on November 22, 1935, for the recited consideration of the cancellation of the mortgage indebtedness, Laura Cullum gave a deed to the Ball Ground Monument Company for the lands described in the mortgage. In 1951, the Monument Company, reserving all mineral and oil rights, conveyed the land to C. J. Pierce, one of the appellees herein, the deed reciting the same description as the deed to Ball from Mrs. Cullum. The balance of the land in dispute, ten acres, located in the Southwest Quarter of the Southwest Quarter of Section 32, was conveyed through a number of persons, all using indefinite descriptions (part or fractional) until it was acquired in 1953 by,Pierce. Laura Cullum died intestate in 1957 or 1958 without lineal descendants, leaving certain brothers and sisters, or their descendants, as her heirs at law. Suit was instituted in November, 1962, by some of the appellants as heirs of .Laura Cullum, and, subsequently, collateral heirs of T. 0. Cullum intervened, adopting the allegations in the complaint, and both groups of heirs prayed that their interest in the lands be fixed and their title quieted. The complaint subsequently was amended to allege that the lands in question were wild, unimproved and unenclosed timber lands. After the overruling of a demurrer, Pierce answered, asserting that he and his predecessors in title had been in adverse possession of the premises involved for over twenty-five years, and had paid the taxes thereon for that period of time; laches was also pleaded. Subsequently, Ball Monument Company intervened, as a matter of protect-' ing its mineral interests, and appellants cross-complained for $250.00 against the company, alleging the wrongful cutting of timber. After the filing of various other pleadings and stipulations, the cause proceeded to trial. The court dismissed the complaint, together with the amendments and the Cullum intervention, and quieted title to the lands in Pierce, under a definite description, subject to the mineral rights held by Ball Ground Monument Company. From the decree so entered, appellants bring this appeal.

At the outset, it will be noted that, as far as any of the property in litigation is concerned, Pierce did not receive any conveyance from any party which contained a valid description of the property conveyed.

There is no dispute but that the lands involved are wild, unimproved, and unenclosed. Therefore, as far as acquiring title by adverse possession for. seven years, Pierce could only attain such title under the statute relating to the payment of taxes for seven or more successive years under color of title. See Ark. Stat. Ann. § 37-102 (Repl. 1962). "Part descriptions are void for indefiniteness.” Miller v. Best, 235 Ark. 737, 361 S. W. 2d 737. A void deed is not color of title. Darr v. Lambert, 228 Ark. 16, 305 S. W. 2d 333, and cases cited therein.

As to the Northeast Quarter of the Southeast Quarter, less the ten acres originally deeded to Anna Johnson, we find that the Chancellor correctly held for appellee, but this is due to the fact that the ten acres (Johnson) was definitely described. Though the conveyance to Pierce of the other thirty acres in the Northeast Quarter of the Southeast Quarter only contained a part description, and was therefore void, our holding in Junction City Special School District No. 75 v. Whiddon, 220 Ark. 530, 249 S. W. 2d 990, is applicable to this situation. In that case, appellees had obtained a deed containing a void description to lands that were wild and unimproved, but had paid taxes on same for more than twenty years. The conveyance described the land as fractional Northwest Quarter, Northwest Quarter, Section 28 * * *, containing thirty-five acres. The remainder of the Northwest Quarter of the Northwest Quarter, five acres, was held by - the appellant school district under a valid description during the twenty-year period. Suit was instituted by appellant, claiming title to the thirty-five acres. In affirming the Chancery Court this court stated:

“Here, the District had notice, or with any reasonable investigation could have ascertained, that appellees were paying the taxes over a period of 15 years on this 35-acre tract and performing acts of ownership over it (as above indicated) and claiming to own it. While the description under which appellees claimed was faulty, it was evident that they were claiming all that remained of the NW % of the NW1/^ of section 28, township 19, range 16 west, 35 acres, after appellant’s 5-acre tract had been carved out of that 40 acres under a definite correct metes and bounds description, which located the 5 acres in the NW corner of the NW % of section 28, township 19, range 16 west, etc.
“We think this was sufficient to identify this 35 acres claimed by appellees and entitled them to the benefits of § 37-103.”

Here, as previously stated, ten acres had been deeded during the lifetime of Cullum and his wife to Anna Johnson, the deed containing a metes and bounds description, and its location is easily ascertainable. As in Junction City, it was apparent that appellees were claiming all that remained of the Northeast Quarter of the Southeast Quarter, and this was sufficient to identify this thirty acres claimed by Pierce under the fifteen year statute {% 37-103,'Presumption of Color of Title).

However, these circumstances are not present with reference to the forty acres described as Southwest Quarter of the Southwest Quarter of Section 32. This property was also acquired under void descriptions, though Pierce and his predecessors in title paid the taxes for a long number of years. Thirty acres was acquired under a part description in 1951, and the other ten acres was acquired under a part description in 1953. Pierce thereafter proceeded to pay on the entire forty, but this period of time, of course, falls far short of fifteen years. The payment of taxes by Pierce and his predecessors is of no aid to appellees, because it could not be ascertained from the descriptions the particular property that was being paid on; i.e., it cannot be determined what part of the land Pierce and his predecessors were claiming. The Whiddon holding is of no aid as far as this particular forty acres is concerned, because no part of this acreage is definitely described. It is true that many of the factors that were present in Whiddon are likewise present in this litigation. For instance, appellants have made no effort to pay taxes on the land in question during all of these years; the property has increased in value; the appellees and predecessors have exercised, to some extent, dominion over the lands, and several of the appellants had lived in the vicinity for a period of time. However, the one additional fact, which with all of the aforementioned facts, caused this court to affirm the Whiddon case, is not present in this litigation. This was mentioned in Barr v. Lambert, supra. There appellant relied in large measure upon the Whiddon holding, but this contention was rejected. The court (referring to Whiddon) said: '

‘ ‘ The court stated that the description was definite in so far as appellant was concerned. The reason the court said this was appellant already owned 5 acres of land in the said 40 acre tract and so must have known that the remainder consisted of 35 acres.”

In Watson v. Cornish, 220 Ark. 662, 249 S. W. 2d 123, handed, down a few months after .the Whiddon decision, we held the description “pt. NW %. of Sec. 15, Twp. 16 S, Range 23 W, containing 60 acres” to be void for want of an identifying description.

“The suit was brought by record owners to quiet title, the contention being that appellants claimed under a clerk’s tax deed. The land was sold in 1947 for 1946 delinquencies. It is shown that for 15 or 20 years the land had been owned by the Cornish family and that it had been assessed as a part of the northwest quarter, as above shown. The Chancellor found that the sale was void for want of an identifying description, * * *”

Tlio opinion mentioned the case of Price v. Price, 207 Ark. 804, 182 S. W. 2d 879, where the court held “that a deed which describes the land as a part of a certain quarter section, or other governmental subdivision, without otherwise describing it, is void.”

Appellee also relies upon the defense of laches, but we do not feel that this is a proper defense under the facts in this' case. Offhand it might be mentioned that the record reflects that Mr. Pierce was advised, soon after the purchase from Hall Ground Monument Company, by Clifford Stobaugh, employee of Pierce and former County Surveyor, that the description was indefinite, and did not identify the property purchased. In other words, Pierce had notice of the defects of his title, and is hardly in a position to complain that he was injured or misled by the failure of appellants to earlier assert their title. In Herget v. McLeod, 102 Ark. 59, 143 S. W. 103, we said:

“In Fordyce v. Vickers, 99 Ark. 500, it is said: ‘The true owner of the land can not be divested of his title thereto by the mere failure to pay taxes and the enhancement of it in value. The doctrine of laches is founded upon the principle, not only that there has been a delay in the payment of taxes by the owner, indicating either that he considers his claim to the land worthless or a total abandonment of his right to the property, and in the meanwhile a great enhancement in the value thereof, but also upon the ground that the party asserting the claim to it has good reason to believe that the alleged rights are worthless or have been abandoned, and, acting upon such belief, has paid taxes upon the land under color of title for at least the period of time named by the statute of limitation.’
“It will thus appear that, before the plea of laches can be available to deprive the true owner of his land, it must be shown that the party claiming same and his grantors have, prior to the commencement of the suit, paid the taxes upon the land under color of title for at least seven years, the statutory period of limitation. The fact that the true owner has failed to pay taxes on the land for a period longer than seven years will not alone bar him; but it must also appear that during such period the defendant and those under whom he claims have themselves paid taxes thereon for at least seven years prior to the institution of the suit before the true owner can be declared barred by laches.”

To summarize, appellees, because of the indefinite descriptions, held void deeds, and the circumstance which overcame or rectified the insufficient description in the Northeast Quarter of the Southeast Quarter is not present in the forty under discussion, i.e., Whiclclon cannot apply.

As previously stated, though taxes had been paid for more than fifteen years, color of title cannot be presumed because the lands situated in the Southwest Quarter of the Southwest Quarter could not be located from the description used.

• It follows from what has been said that the decree of the Chancellor is affirmed in part, and reversed in part, and this cause is remanded to the Van Burén Chancery Court with directions to proceed in a manner not inconsistent with this opinion.

Mr. Justice McFaddin dissents in part.

Ed. F. McFaddin, Associate Justice

(dissenting in part). I dissent from that portion of the Majority Opinion which holds that the appellee Pierce, has shown a good title to the lands in the-NE % of the SE %, and which confirms the title of the appellee to said lands. The Majority reaches its conclusion because of- the holding of this Court in Junction City School District v. Whiddon, 220 Ark. 530, 249 S. W. 2d 990. I wrote a dissenting opinion in that case; and for the same reasons therein stated I dissent in the present case. I regard the holding in Junction City v. Whiddon to be unsound and I hereby preserve my dissent.

       Ball Company sold a small amount of timber off the land, and Pierce has caused surveys to be made, with the property lines marked by white paint on trees. Pierce also stated that the timber stand had been improved by virtue of the fact that the undesirable timber had been removed.

       Emphasis supplied.


text:
    Hackler v. City of Fort Smith.
    5-3305
    377 S. W. 2d 875
    Opinion delivered April 27, 1964.

      Bethell do Pearce, A. F. House, for appellant.

      G. Byron Dobbs and Thomas Harper, for appellee.
   Ed. F. McFaddin, Associate Justice.

This suit is an attack by appellants on the validity of Ordinance 2421 of the City of Fort Smith, which ordinance reads:

“ORDINANCE NO. 2421
“AN ORDINANCE PROHIBITING BLASTING IN ROCK QUARRIES WITHIN THE CITY LIMITS OF FORT SMITH.
“BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF FORT SMITH:
“SECTION 1. No blasting or use of explosives in quarrying operations in rock quarries located in the city limits of Fort Smith shall be permitted.
“SECTION 2: Violation of this ordinance shall constitute a misdemeanor and shall be punishable by a fine not to exceed $1,000.00, or imprisonment in the city jail not to exceed six months, or both such fine and imprisonment.
‘ ‘ SECTION 3: Whereas, there is immediate clanger to lives and property of the people of Fort Smith arising ont of the use of explosives and blasting in rock quarries in the City of Fort Smith and an emergency exists, and this ordinance being necessary for immediate protection and safety' shall be in force'from and after its passage and approval.
' “PASSED AND APPROVED this 6 day of August, 1963.
“/s/ Robert R. Brooksher, Mayor
“ATTEST: /s/ Carl R.'Atkins, City Clerk.”

The plaintiffs below (appellants here) alleged that Mr. Hackler .owned-a rock quarry located in the City of Fort Smith; that after the adoption of said ordinance' the plaintiff, Mississippi Valley Engineering &. Construction Company, contracted to mine and remove stone from the Hackler quarry; that the only way to mine the stone was by blasting; that the ordinance, insofar as it prohibited blasting, was. void for a variety of reasons, one'of which was that it absolutely prohibited the use of explosives in quarrying operations, rather than merely regulated the use of explosives. ■ The prayer of the complaint was to enjoin the City of Fort.Smith and its named, officials from aii enforcement of the said ordinance against the appellants.

Shortly after the filing of the complaint the Chancery Court issued a temporary injunction against the enforcement of the ordinance, and jiermitted blasting to continue at the quarry in a regulated manner until final hearing. At the close of the plaintiffs.’ case on final hearing, the City filed a demurrer to the evidence of the plaintiffs. The demurrer was sustained, the temporary injunction Avas cancelled, and the complaint Avas dismissed. From that decree there is this appeal, in Avhich the appellants urge three points, being:

“I. Ordinance 24-21 is invalid because it is arbitrary and unreasonable, and deprives the appellants of their property Avithout due process of law.
“II. Ordinance 2421 is discriminatory and deprives the appellants of equal protection of the law.
“III. Ordinance 2421 is invalid because it conflicts with State law and regulations permitting the regulated use of explosives.”

We find it unnecessary to consider the second and third points because the first point is decisive of this appeal. The ordinance is void because it is a prohibitory ordinance and not a regulatory ordinance. In Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186, this Court said:

“Municipal corporations derive their legislative powers from the general laws of the state. Article 12, § 4, Constitution of Arkansas. In the City of Argenta v. Keath, 130 Ark. 334, 197 S. W. 686, L.R.A. 1918B, 888, we said: 'A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared.’ ”

The statutory authority under which the City, of Fort Smith was attempting to act in adopting the ordinance 2421 is found in Ark. Stat. Ann. § 19-2303 (Repl. 1956), and reads:

“They [municipal corporations] shall have power to prevent injury or annoyance within the limits of the corporation, from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated withiii the jurisdiction given the board of health in section 5203 [§ 82-204], to regulate the keeping- and transportation of gunpowder, dynamite, and other combustibles, and to provide or license magazines for the same; ...”

In Bennett v. City of Hope, supra, we said: “Power to regulate does not include power to prohibit.” In Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S. W. 957, the City of Arkadelphia had declared the owning, keeping, or raising of bees in the City of Arkadelphia to be a nuisance and had prohibited the same. In holding that ordinance to be void, this Court said:

"Neither the keeping, owning, or raising of bees is, in itself, a nuisance. Bees may become a nuisance in a city, but whether they are so or not is a question to be judicially determined in each case. The ordinance under considerátion undertakes to make each of the acts named a nuisance without regard to the fact whether it is so or not, or whether bees in general have become a nuisance in the city. It is, therefore, too broad, and is invalid.”

In Jones v. Kelley Trust Co., 179 Ark. 859, 18 S. W. 2d 356, we held that the operation of a quarry and rock crusher was a lawful business and that it was not a nuisance per se. In Balesh v. Hot Springs, 173 Ark. 661, 293 S. W. 14, we held that if a business was lawful in itself and not a nuisance per se, then it could be regulated but not prohibited. In the case at bar the plaintiffs introduced a wealth of testimony, all going to show that blasting at the Hackler quarry could be carried on with safety by having small quantities of the blasting agent set off in a series, rather than in one large explosion. The witness, Dr. Harold H. White, gave most explicit testimony on this point. During the time that the Chancery Court permitted blasting in a regulated manner Dr. White placed a seismograph near the quarry and had blasting done with small quantities of explosives; and the reading of the seismograph definitely verified Dr. White’s testimony. One witness, Jim Rutledge, a civil engineer in Fort Smith, stood within 60 feet of the point Of the explosion, and experienced no harm. It was shown that the nearest houses or dwellings to the quarry were approximately 250 feet. It was furthermore shown that at another point in Fort Smith blasting in a shale quarry has been allowed for years without any reported damage. When the plaintiffs offered all this testimony the defendants filed a demurrer to the evidence; and, under Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, the testimony by the plaintiffs must be given its strongest probative force.

A valid ordinance conld be adopted by the City of Fort Smith for reasonable regulation of blasting at quarries; but an ordinance is not valid when it completely prohibits all blasting. The situation here is very much like that which existed in Pierce Oil Corp. v. City of Hope, 127 Ark. 38, 191 S. W. 405. There, the City undertook to regulate the keeping of explosives within the City and provided that more than 60 gallons of gasoline or other inflammable substances could not be kept within 300 feet of any dwelling. There was no absolute prohibition against the keeping of gasoline or explosives within the city: there was merely a regulation. To the same effect is Little Rock v. Reinman, 107 Ark. 174, 155 S. W. 105, wherein the City enacted that a livery stable could not be within a certain area, but livery stables were not prohibited elsewhere. To the same effect is Goldman v. City of North Little Rock, 220 Ark. 792, 249 S. W. 2d 961, wherein junkyards could be prohibited within a limited district, but could not be prohibited throughout the entire City; and in that case we discussed in some detail the distinction between regulation and prohibition.

So in the case at bar it was beyond the power of the City to adopt an ordinance which absolutely prohibited blasting at rock quarries within .the City when it was shown, as here, that the blasting could easily be regulated. The decree of the Chancery Court is reversed. Because the Court sustained the defendants’ demurrer to the evidence, we remand the cause for further proceedings (Ark. Stat. Ann., Sec. 27-1729, 1962 Repl. Vol.). But we now restore and reinstate the Chancery Court orders which permitted appellants, upon making bond, to have blasting at the quarry pending final disposition of this cause; and for good cause shown, an immediate mandate is ordered.

       The appellants are James M. Hackler and Mississippi Valley Engineering & Construction Company.

       To the same effect, see City of Springdale v. Chandler, 222 Ark. 167, 257 S. W. 2d 934.

       The holding of this Court was affirmed by the United States Supreme Court in 248 U. S. 498, 63 L. Ed. 381, 39 S. Ct. 172.

       The holding of this Court was affirmed by the United States Supreme Court in 237 U. S. 171, 59 L. Ed. 900, 35 S. Ct. 511.


text:
    Garner and Rosen v. Amsler, Judge.
    5108
    377 S. W. 2d 872
    Opinion delivered April 27, 1964.

      Tommy H. Russell and Echoin E. Dunaioay, for appellant.

      Bruce Bennett, Attorney General, By Jack L. Ijessenberry, Chief Asst. Atty. General, for appellee. •
   George Rose Smith, J.

This is an application by the appellants, two lawyers living in Memphis,’ Tennessee, for a writ of certiorari to review a judgment finding them to be in contempt of the' Pulaski Circuit Court. They contend that their conduct did not constitute contempt of court and, secondarily, that the punishment imposed is excessive.

These two attorneys, James 0. Garner and Bernard M. Rosen, were representing the defendants in a civil action that had been set for trial on December 19, 1963. That morning they first filed a motion for a continuance, on the ground that they had been unable to employ local counsel until a few minutes before the trial was scheduled to begin. The court denied this motion, doubtless because it appeared that the petitioners had waited until the day before the trial before seeking to obtain local counsel.

Eosen then made an oral motion, out of the presence of the jury, to quash the entire panel of jurors. In presenting this motion he stated that on the day before Garner had been told, in a telephone conversation with someone in Little Eock, that the prospective jurors had “been stacked against the defendants” in the case about to be heard. Judge Amsler expressed his interest in the matter and asked if Mr. Garner would reveal the identity of his informant. The two lawyers declined to disclose the name of the person in question, though Eosen indicated that at some later time they would be ready to submit proof “with particulars, names and dates and times and places.” Eosen requested that the court rule upon the motion solely on the basis of counsel’s statements. The court denied the motion. After a request for a change of venue had also been denied the case proceeded to trial.

While the jury was deliberating Judge Amsler called Eosen and Garner before him and entered an order directing them to appear before the prosecuting attorney and reveal fully and completely all the information they had about the jury having been stacked. On January 3 the two lawyers duly appeared before the prosecuting attorney, but they still refused to reveal the name of their informant. When the prosecutor made his report to Judge Amsler the latter cited the two men for contempt of court.

In an effort to purge themselves of the charge of contempt Eosen and Garner disclosed the source of their information. Garner stated that on the day preceding the trial he had telephoned Wayne Owen, a Little Eock lawyer, in an effort to engage local counsel. Later in the day Owen called back and said that he had talked to Dale Price, another Little Eock lawyer, about assisting in the case, but Price declined “because he had been engaged in seeing that the jury was stacked against us.”

Judge Amsler then sent for Owen and Price, whom we know to be men of good character. It developed at once that the assertion that the jury had been stacked was wholly without foundation. Owen had not even talked to Price. He had discussed the matter with one of Price’s partners. This lawyer, upon learning that Julius Acchione was representing the plaintiff in the principal case, said that Price would not he able to act for the defendants, because Acchione and Price had worked together in picking the jury. Owen understood this statement to mean that Acchione and Price had gone over the jury list to see who was on the jury (apparently as part of Acchione’s preparation for the trial).

Before going to the courthouse on the morning of the trial Rosen and Garner asked Owen how juries are selected in Arkansas. Owen supplied the requested information. The Memphis lawyers, however, did not ask Owen for more details about the supposedly improper selection of the jury. Thus in moving that the panel be quashed they could at best have been relying upon Wayne Owen’s statement of what Dale Price’s partner had told him: “We can’t participate, Wayne, because Acchione has been over here with Dale picking the jury.”

At the conclusion of the hearing Judge Amsler adjudged both petitioners to be in contempt of court. He fined each one $250 and sentenced Rosen to ten days in jail and Garner to five days in jail. On the following afternoon, after the petitioners had been in the Pulaski county jail overnight, they were released on bond by an order of this court, in accordance with our practice in such cases.

We are unable to agree with the petitioners’ insistence that their conduct was not contemptuous. In charging that the jury was ‘ ‘ stacked ’ ’ the petitioners obviously used the word in its card-playing sense: “To arrange cards secretly for cheating; hence, Slang, to have the. odds fixed in advance.” Webster’s New International Dictionary (Second Edition). It was at the very least a charge that prospective jurors having a bias against the petitioners’ clients had been deliberately selected for service in the case.

Our recent decision in Tupy v. State, 234 Ark. 821, 354 S. W. 2d 728, is pretty well in point. There the contemnor had distributed 2,300 copies of a pamphlet which referred to a “Set-up Grand Jury,” with an implication that the circuit judge had taken some part in the improper selection of that body. We affirmed a conviction for contempt, finding that “the statement made in the pamphlet by petitioner destroys public confidence in the courts and Grand Juries.”

In the case at bar the petitioners’ unrebutted assertion that the jury had been stacked against their clients could have weakened the public’s confidence in the impartiality of the jury system and thus in the impartiality of the court itself. It is no answer to say that the declaration was made in chambers, in the course of a judicial proceeding. Had they reflected for but a moment these attorneys must unquestionably have realized that such a serious charge would inevitably be investigated in circumstances that would bring it to the attention of the public. They must be held responsible for the natural consequences of their action.

We have concluded, however, that the remaining portions of their jail sentences should be remitted. We may state at the outset that we think the two petitioners should be treated in the same manner. Rosen was the spokesman in the presentation of the motion to quash the panel, but the erroneous information originally came from Garner. Each seems to have concurred in and approved the other’s conduct throughout the proceeding. There seems to be no sound basis for finding Rosen to have been more at fault than Garner.

These lawyers were undoubtedly careless in making-such an accusation without having carefully verified their facts. They showed the worst possible judgment in presenting their motion without supporting proof and in refusing- to reveal the source of their misinformation. But a sentence for contempt is not intended primarily as a means of punishing one for carelessness or bad judgment. Its principal justification lies rather in the need for upholding public confidence in the majesty of the law and in the integrity of the judicial -system. When we have found that these ends will be met despite a reduction or even a remission of a jail sentence for contempt it has been our practice to modify the judgment. See Lockett v. State, 145 Ark. 415, 224 S. W. 952;. Baker v. State, 177 Ark. 13, 5 S. W. 2d 337; Pace v. State, 177 Ark. 512, 7 S. W. 2d 29.

The petitioners have served what amounts in law to two days in jail. That puishment ivas deserved. But the allegation of jury stacking has been demonstrated to he so wholly without foundation that it is not possible to think that the standing of the Pulaski Circuit Court in the minds of the public has been impaired in the slightest degree. We are not convinced that “the ends of justice,” as we said in Pace v. State, supra, require that these out-of-state attorneys be again confined to jail for conduct that does not appear to have been motivated by bad faith or malice.

As thus modified the judgment is sustained.