author: John F. Stroud, Justice. John I. Purtle, Justice,

text:
    Carlton Edward WEBB v. STATE of Arkansas
    CR 80-48
    601 S.W. 2d 848
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Thomas M. Carpenter, of Lessenberry & Carpenter, and Robert W. Raster, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was convicted by a jury of possession of a controlled substance and of being an habitual offender, having two or more prior felony convictions. He appeals from a sentence of five years alleging that the trial court erred in overruling his motion to suppress the controlled substances. We disagree with a portion of the ruling of the trial court and reverse the conviction.

Appellant and four male companions were staying at a Little Rock motel on February 17, 1979, when a mattress in their room caught fire. The motel manager summoned the police at 1:05 a.m. and two units of the Little Rock Police Department responded. The manager accompanied the officers to the room and, after a brief discussion, appellant and his companions paid the manager for the damage to the mattress. No charges were filed because of the incident, but one of the officers obtained the names of the five persons and made a routine call to the station to see if there were outstanding arrest warrants pending against any of them. The officer was advised that appellant and two others had warrants pending, and they were advised that they would have to come down to the station. Appellant was taken to the parking lot where a “pat-down” search was conducted before he was placed in the back seat of the patrol car. The officer testified that the reason for the search was primarily to protect himself from any weapons, and that in fact he found and seized two knives from appellant. During the “pat-down” search the officer also discovered a bottle containing 10 white pills in a paper sack in appellant’s pants’ pocket. After noticing that the bottle was labeled “Dialudid,” the officer placed the bottle and its contents back in appellant’s pants. At the station appellant was booked pursuant to a warrant issued by the Little Rock Traffic Court on September 7, 1979, for contempt of court. During the routine inventory search prior to appellant’s being placed in the jail cell, a bag containing 46 red capsules was found in a pocket on appellant’s coat sleeve, but he no longer had the bottle of white pills in his pants. The officer searched the police car that carried appellant to the station and found the missing bottle of white pills under the back seat. After the capsules and pills were analyzed, appellant was charged with two counts of possession of a controlled substance, Hydromorphone and Meperidine, and with being an habitual offender.

Appellant filed a motion to suppress the evidence seized from him, contending that the search was unlawful in that it was not made pursuant or incident to a lawful arrest. He urged that his arrest was based on an invalid 1976 traffic court warrant of arrest and that, therefore, the search was unlawful. This motion was denied and trial was held before a jury on August 23, 1979, resulting in appellant’s conviction of possession of Hydromorphone or Meperidine. The jury also found that appellant was an habitual offender under Arkansas law and sentenced him to five years’ imprisonment. He brings this appeal seeking to have the conviction reversed and the charges dismissed.

Appellant offers numerous arguments to support his contention of invalidity of the warrant of arrest issued for contempt of court for failure to attend driver’s school. We only need consider some of them to demonstrate that the warrant of arrest was invalid. Appellant correctly contends that the warrant was defective since it was not issued by a judicial officer, but by the clerk of the Little Rock Municipal Court. Ark. Stat. Ann. § 43-406 (Repl. 1977) and Rule 7.1 of the Arkansas Rules of Criminal Procedure control the issuance of arrest warrants, providing, in pertinent part:

Ark. Stat. Ann. § 43-406 —
A warrant of arrest may be issued by the following officers, who are called magistrates in this Code; viz: judges of city or police courts, mayors, and justices of the peace; . . .
Arkansas Rules of Criminal Procedure, Rule 7.1 —
(c) the Clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney.

Appellee argues in its brief that the initials “W. B.” on the corner of the warrant of arrest should cause this court to take judicial notice that Traffic Judge William Butler must have approved the issuance of the warrant by the clerk. We cannot assume that to be the case, and the State offered no evidence at trial that the judge had authorized the clerk to issue the warrant pursuant to Rule 7.1(c). The warrant of arrest was also defective due to the lack of accompanying affidavit or proof that an information was issued as required by the rule.

Appellant also correctly contends that inasmuch as the arrest warrant was not actually executed for well over two years after its issuance it was “stale.” He bases his contention on the fact that the statute of limitations on contempt of court, a misdemeanor, is one year under Ark. Stat. Ann. §41-104(2)(c) (Repl. 1977). Pursuant to § 41-104(2), prosecution for the contempt of court offense must have been “commenced” within one year of its commission. Ark. Stat. Ann. § 41-104(6) provides:

A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information or other changing instrument, provided that such warrant or process is sought to be executed without unreasonable delay. (Emphasis added.)

Appellee argues that even if the arrest warrant was unlawful, nevertheless, the search should be deemed valid as the arresting officer was acting reasonably and in good faith. The trial court agreed with that contention and made a finding that whether the arrest warrant was valid or invalid, the police officer had probable cause to arrest appellant in reliance upon information that an arrest warrant was outstanding. The court further held that the appellant was lawfully searched at the city jail pursuant to that arrest, and that the fruits of that search were admissible in evidence. On appeal we view the totality of the circumstances and make an independent determination; and we are not to reverse the trial court’s finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

It is not every search and seizure that is forbidden by the Fourth Amendment, but only the unreasonable ones. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Hosto v. Brickell, 265 Ark. 147, 577 S.W. 2d 401 (1979); Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976). The central inquiry is the reasonableness, in all the circumstances, of the particular governmental invasion of a citizen’s personal security and that inquiry becomes a dual one — whether the officer s action was justified at the inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, supra. We are not unmindful that in Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971) and in Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925 (1978), the products of a search were held to be inadmissible when the search was made in reliance on information furnished by other officers that a valid arrest warrant had been issued, and it turned out that the arrest warrant was not valid. In both of those cases the search was made of an automobile, and we are not willing to extend the holding of those cases to apply to the facts here of a “pat-down” search of an individual made incident to arrest.

Rule 3.4 of the Arkansas Rules of Criminal Procedure allows a search for weapons incident to a detention without arrest if the officer “reasonably suspects that the person is armed;” and Rule 12.1 allows a search “to protect the officer” incidental to an arrest. Justification for a limited search for weapons turns upon the question of whether the facts available to the officer at the moment of search would warrant a man of reasonable caution to believe that the action taken was appropriate. Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). It is only required that the police officer be able to point to specific and articulable facts which, taken together with rational inferences to be drawn from those facts, reasonably warrant a belief that his safety or that of others is in danger. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). In striking the balance between the individual’s right to be free from arbitrary interference by police officers and the public interest, the element of safety to the police officer is both legitimate and weighty, because it is not reasonable to require that police officers take unnecessary risks in the performance of their duties. Pennsylvania v. Mimms, supra.

In the circumstances confronting the police officer at the motel, we think any man of reasonable caution would have conducted the “pat-down” search of appellant before placing him in the back seat of the police car. It was not necessary to a reasonable search for weapons for the protection of the officer that he be absolutely certain that the individual searched was armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety was endangered. Terry v. Ohio, supra. We think the police officer acted reasonably in looking at the article in appellant’s pants’ pocket felt during the “pat-down” search for weapons. He also acted reasonably in returning the pill bottle to appellant’s pants’ pocket after determining that it was not a weapon. The officer testified he found two knives concealed on appellant, and a glass pill bottle is certainly similar enough to the size and shape of a knife to warrant further examination when felt. This is particularly true here when the shape of the bottle was likely somewhat masked by being in a paper sack in appellant’s pants’ pocket. Other states have allowed the introduction of contraband in evidence that was discovered during a “pat-down” search for weapons. While an officer removed a pipe from the defendant’s pocket, a bag of marijuana dropped the ground and it was held admissible. People v. Watson, 12 Cal. App. 3d 130, 90 Cal. Rpt. 483 (1970). In People v. Holloman, 263 N.E. 2d 7, 46 Ill. 2d 311 (1970), a hard object, hidden on defendant’s back and discovered during a “pat-down,” turned out to be a manila envelope containing narcotics; they were held admissible. See also State v. Thomas, 469 P. 2d 279, 205 Kan. 442 (1970), where marijuana concealed in the defendant’s socks was admitted in evidence because weapons are often concealed in a defendant’s socks. We, therefore, hold that the trial court properly admitted the Hydromorphone in evidence as the fruit of a reasonable and lawful “pat-down” search. Although not argued by the state on appeal, we point out that the Hydromorphone might also have been admissible as a controlled substance seized without a search due to the apparent abandonment of the pills by appellant when he placed them under the seat of the police car.

However, we think the trial court erred in allowing the Meperidine admitted in evidence. The Meperidine was not discovered during the “pat-down” search for weapons because the pills were not in a bottle or other hard container, but were in a clear plastic bag in the sleeve of appellant’s coat. The pills were discovered during the inventory search at the police station just prior to the incarceration of appellant. Although Rule 12.2 allows the thorough search of an accused incident to incarceration, the rule does not authorize such search for incarceration under an invalid arrest warrant.

Although the felony information filed in this case alleged separate counts for possession of the two drugs, the jury marked through the words typed on the verdict form and changed the words “Hydromorphone and Meperidine” to read “Hydromorphone or Meperidine.” Accordingly, the verdict of the jury is reversed and this case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Purtle and Mays, JJ., dissent.

John I. Purtle, Justice,

concurring in part, dissenting in part. I concur in the result of the majority in reversing this case and sending it back for a new trial; however, I dissent from the portion of the opinion tht would allow part of the evidence obtained as a result of the illegal warrant to be used in evidence at the new trial. I cannot understand how the majority can hold that the arrest warrant was invalid yet allow the fruits of the poisonous tree to be used against the appellant.

The majority recognized that Whiteley v. Warden, 401 U.S. 560 (1971); and Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925 (1978), required the suppression of evidence received as a result of a search based on an illegal warrant. They attempt to distinguish these cases on the ground that the search was of an automobile in those two cases rather than the search of the person. It is my opinion that a person has as much protection under the constitution as his automobile. In fact, part of the evidence in the present case was obtained by the search of an automobile, although the car was not the appellant’s.

In Rodriquez v. State, supra, we held that when an officer relied upon information furnished by another officer to effect an arrest, the officer furnishing the information must have had probable cause to believe that the accused had committed the offense before the fruits of the illegal search could be introduced and the evidence used against the accused. We stated that the state must demonstrate, at a supression hearing, that the sending officer possessed the requisite probable cause to act. In this case it is admitted that the warrant was invalid; therefore, the sending officer had no probable cause and the evidence should have been suppressed. In Rodriquez v. State, supra, we quoted from Whiteley v. 'Warden, supra, which stated:

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

In the case of Wong Sun v. United States, 371 U.S. 471 (1973), the district court and the court of appeals held the arrest illegal but allowed an oral confession at the time of the arrest, as well as certain drugs surrendered by third parties, to be admitted into evidence. The United States Supreme Court stated there was not probable cause for an arrest warrant, therefore the fruits of the arrest were inadmissible. The Court stated:

... It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion . . . though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause-evidence which would “warrant a man of reasonable caution in the belief’ that a felony has been committed, ... must be measured by the facts of the particular case. The history of the use, ... of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would “leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U.S. 160, 176.

The test in cases such as we have before us is “whether the officer could, on the information which impelled them to act, have procured a warrant for the arrest.” Without a doubt, the sending officer had no information of any sort to indicate the appellant had committed a felony. The only information on file was a stale invalid warrant for a misdemeanor, which was of doubtful origin in the first place. In fact, it was defective on its face.

In Wong Sun v. United States, supra, the Court stated:
In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, 116 U.S. 616, this Court held nearly half, a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 383_

Arkansas Rules of Criminal Procedure, Rule 12.1, provides for a search of a person and property incident to a lawful arrest; neither this rule nor any other rule authorizes even a “pat-down” search pursuant to an illegal arrest. The search pursuant to a legal arrest is made for the purpose of protecting the officer. I have never heard of anyone being injured by a bag of marijuana, a packet of pills, or any similar item; nor do I think it is reasonable for an officer to fear injury from such items. In fact, it was conclusively proven in this case that the officer had no fear of injury from the container-in which the ten pills were found; because, after examining them, the officer replaced them in appellant’s pocket. There can be no stronger evidence that there was no fear of danger by the officer.

The only purpose of such a complete and exclusive search, under the guise of a pat-down, is to discover incriminating evidence. Before such items may be used against an accused, the items must be discovered incidental to a legal arrest or the result of a valid search warrant. I am unwilling to be a part of any decision that would legalize procedures expressly prohibited by the const1: • tion nor will I participate in overruling our own decisions through such a disguise. Therefore, I would hold that all of the evidence received as a result of this illegal warrant be excluded.

I am authorized to state that Mays, J., joins me in this opinion.


source: Caselaw Access Project

author: Richard L. Mays, Justice. John F. Stroud, Justice,

license: Public Domain

text:
    R. L. QUALLS, Director, Department of Finance and Administration v. GEORGIA-PACIFIC CORPORATION
    80-7
    602 S.W. 2d 646
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      James R. Eads, Jr., Robert G. Brockmann, Barry E. Coplin, H. Thomas Clark, Jr., Timothy J. Leathers and Martha Stephenson, by: Joseph V. Svoboda, for appellant.

      Griffin Smith and W. R. Nixon,Jr., by: W. R. Nixon,Jr., for appellee and cross-complainant.
   Richard L. Mays, Justice.

Although Georgia-Pacific Corporation replaced a boiler and purchased spare machine parts in 1976 and 1977 at its paper mill plant in Crosset, Arkansas, Georgia-Pacific did not pay a use tax on the boiler replacement or spare machine part purchases. When the State attempted to collect the tax and a 10% penalty for nonpayment, Georgia-Pacific sought an injunction in Chancery, claiming an exemption. The chancellor enjoined the collection of the 10% penalty and use tax on the boiler replacement but sustained the tax on the purchases of the spare machine parts. On appeal, affirming in part and reversing in part, we hold that Georgia-Pacific was not entitled to a use tax exemption on either claim and, because Georgia-Pacific negligently failed to pay the tax, must now also pay the 10% penalty.

Georgia-Pacific’s tax exemption claims, are based on Ark. Stat. Ann. § 84-3106(D)(2)(a) and (b), which respectively exclude from taxation “machinery purchased to replace existing machinery in its entirety,” and “machinery . . . purchased and used ... to expand existing manufacturing . . . .” Georgia-Pacific contends, and the chancellor agreed, that although it used original parts (the steam drum, mud drum and superheater) from the oil boider in reconstructing a new one, the used parts were so reconditioned and the replacement effort so complete that the oil boilder was “in essence” replaced in its entirety. To factually support its contention, Georgia-Pacific established that the costs of the replacement boiler approximated that of a “brand new” boiler, that the replacement boiler satisfied industry and insurance standards for a new boiler and that the salvaged parts from the old unit were reconstructed and baked in ovens to put them in new condition. Irrespective of Georgia-Pacific’s argument, however, an exemption provision must be strictly construed against the taxpayer and doubt about its applicability obliges a denial of the exemption. S.H. & J. Drilling Corp. v. Qualls, Director, 268 Ark. 71, 593 S.W. 2d 178 (1980). Conditioning an exemption on language requiring a replacement in entirety would ordinarily exclude exemption consideration for a replacement which included original parts, even if refurbished, especially when language formerly authorizing an exemption for repaired parts has been excised from the statutory exemption provision. As we stated in Fourco Glass Co. v. Heath, 261 Ark. 192, 547 S.W. 2d 121 (1977), rejecting an argument similar to that which Georgia-Pacific now asserts:

Such an argument might have been persuasive under the language of Act 113 of 1967, which exempted ‘tangible personal property used for repair, replacement, or expansion of existing manufacturing or processing facilities.’ But in the following year, by Act 5 of the First Extraordinary Session of 1968, the legislature amended that language to read as we have quoted it. Simple repairs or replacements are no longer exempt; the machinery must be replaced in its entirety.

Any other approach would make a mockery of the principle of strict construction and open the flood gates for tax exemption claims every time an old machine is “refurbished.”

Georgia-Pacific also contends that spare machine parts purchased upon the manufacturer’s recommendation in connection with the purchase of more complicated production machinery should be exempt as machinery purchased to expand existing manufacturing facilities. Georgia-Pacific likens these spare machine parts to spare tires which come with the purchase of automobiles and argues that since their original counterparts can be easily damaged and disrupt machine operation until replaced, the spare machine parts represent an integral part of the original package and are necessary for optimum machine performance. Although Georgia-Pacific supports its argument with sundry facts, we find no statutory language to justify an exemption for spare parts. No matter how closely connected with the machine and susceptible to damage the spare parts are, they were not original parts and were needed as replacements only when the originals were damaged. Again, applying our rule of strict construction against the taxpayer, we must reject any exemption claim for spare parts.

Finally, Georgia-Pacific contends that the chancellor appropriately abrogated the 10% penalty assessed by the state on the tax deficiency. We differ with the chancellor and reinstate the penalty. The state informed Georgia-Pacific in 1975 that its exemption claims were unacceptable. Nevertheless, Georgia-Pacific disregarded the caveat and refused to pay the taxes in 1976 and 1977. Under such circumstances, not only is the penalty justified because of Georgia-Pacific’s negligence, a finding which was originally made by the Revenue Department Hearing Board, but the penalty assessment may very well be essential to maintain the integrity of our taxing system.

Affirmed in part and reversed in part.

Hickman and Stroud, JJ., dissent in part.

John F. Stroud, Justice,

dissenting in part. I disagree with the view of the majority concerning the imposition of a 10% penalty on a tax deficiency. There is a substantial difference between negligence and a disagreement between a taxpayer and the taxing authority as to the application of an exemption statute. The fact that an honest question was involved here should be quite apparent from the divergent views of the trial court and this court as to the proper application of the exemption statute. I find no evidence of negligence in this case and agree that the Chancellor was correct in reversing the finding of the Revenue Department Hearing Board. In the absence of negligence, the penalty can still be assessed based on Great Lakes Chem. Corp. v. Wooten, 266 Ark. 511 (Sept. 24, 1979), where this court held that Ark. Stat. Ann. § 84-3113 (Repl. 1960) requires the imposition of either a 10% penalty for negligent non-payment of the tax without intent to evade the tax or a 50% penalty for fraudulent nonpayment with intent to evade the tax. I respectfully disagree with that decision which in essence holds that as a matter of law a tax deficiency under this statute must result from either negligence or fraud. Prior to authorizing the assessment of the 10% or 50% penalty, the statute provides a third alternative, which is the payment of interest at 1/2 of 1% per month “from the time the tax was due and payable until paid.” It is not an automatic assessment, but becomes due “upon notice and demand by the Commissioner.” I think Great Lakes Chem. Corp., supra, completely overlooks this third alternative — the payment of interest when no negligence or fraud is involved.

The statute clearly requires a finding of negligence to impose the 10% penalty. After providing for the possible assessment of interest on a tax deficiency, § 84-3113 continues:

If any part of such deficiency is found by the Commissioner to be due to negligence of the taxpayer without intent to evade the tax, there shall be added ten (10%) per cent of the total amount of the deficiency in the tax, together with interest as hereinabove provided. (Emphasis added.)

The only reasonable construction that can be given to the language “any part of such deficiency” is that the 10% penalty need not apply to all of the deficiency. I think a reasonable construction of the statute as a whole indicates that the part of the deficiency not resulting from the negligence of the taxpayer need not necessarily result from wilful fraud. I submit it can as readily result from the absence of negligence and fraud.

I would affirm that part of the decision of the trial court that abrogated the 10% penalty assessed against appellee.

Hickman, J., joins in this dissent.


author: Richard L. Mays, Justice. John A. Fogleman, Justice,

text:
    STATE of Arkansas v. Tim MESSER
    CR 80-94
    601 S.W. 2d 857
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellant.

      AlfredJ. Holland, by: Michael E. Todd, for appellee.
   Richard L. Mays, Justice.

The only question presented by this appeal is whether three full terms of court expired before appellee was brought to trial in violation of his right to a speedy trial as defined by the Arkansas Rules of Criminal Procedure. The circuit court dismissed the criminal charges against appellee after holding that his speedy trial right had been violated. We reverse and remand.

Appellee, Tim Messer, was arrested on October 13, 1978, on criminal charges of burglary and theft. He was released on bond on October 23, after appearing before a magistrate on October 16, 1978. After entering a plea of not guilty before the Greene County Circuit Court on October 31, he obtained a continuance of his case on December 11, 1978, and again on May 7, 1979. Since the courtroom for the Greene County Circuit Court was in disrepair during September and October, 1979, appellee’s trial was set for November 20, 1979- However, on November 12, 1979, appellee filed a motion to dismiss based on a violation of his speedy trial right.

Rule 28 of the Arkansas Rules of Criminal Procedure provides that a criminal defendant must be brought to trial within three full terms of court, excluding only such periods of necessary delay as the rule expressly authorizes. Rule 30 provides for absolute discharge of a defendant who is not brought to trial within the required time.

Defining the right to a speedy trial in terms of court has presented special problems in determining compliance with our rules in jurisdictions having circuit courts with multidivisions and overlapping terms. Recognizing the importance of the right to a speedy trial, we have stressed that civil divisions of circuit courts must share the responsibility of expediting criminal cases with criminal divisions. Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979); Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980). Although we considered the terms of each division, criminal or civil, we initially only added terms in any one division without counting overlapping terms of other divisions in determining compliance with the rules. Gardner v. State, 252 Ark. 828, 431 S.W. 2d 342 (1972). We decided, however, that even overlapping terms had to be counted to effectively spread the judicial responsibility to expedite criminal matters and began adding expired terms of all divisions to determine compliance. Harkness v. Harrison, supra.

Although terms of court have never been uniform in length, counting overlapping terms not only added to the lack of uniformity but raised additional issues concerning the exclusion of such terms because of necessary delays in bringing a defendant to trial. Although many of the problems with overlapping terms were solved when Act 432 of 1977 abolished divisions in circuit court, effective January 1, 1979, the problem of a lack of a uniform standard for measuring the right to a speedy trial remains. The inequity it sometimes creates is emphatically illustrated by our decisions in Alexander v. State, supra, finding a speedy trial violation when a defendant was brought to trial within 7 months, and Mathews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980), finding no violation when a defendant was not brought to trial within 18 months. Today we are confronted with another example of the distorted reasoning which sometimes results from the application of our speedy trial rule with the additional difficulty of concurrently applying our rule before and after multi-divisions were abolished. Primarily, the issue we now must determine is whether an overlapping term of av division should be excluded when a term which is substantially contemporaneous with it is excluded in another division because of a requested continuance.

In October, 1978, when appellee was arrested the Greene County Circuit Court had three divisions, one criminal and two civil, with each division holding two terms of court a year as follows:

1st division (criminal), on the third Monday in May and the second Monday in December;
2nd division (civil), on the first Monday in March and the first Monday in September;
3rd division (civil), on the first Monday in June and the third Monday in November.

The appellee’s case was assigned in the criminal or 1st division with divisional terms beginning in May and December.

Although divisional terms of Greene County Circuit Court became regular court terms after January, 1979, resulting in six successive terms of court beginning in March, May, June, September, November and December, the court continued to function in divisions without integrating to dispose of criminal matters. When appellee appeared during the December and May terms, he delayed his trial by requesting continuances which the court granted. When appellee received notice that his trial had been set in November, he suddenly complained about the denial of a speedy trial, arguing that three overlapping terms in divisions II and III had expired during the time that his case had been continued in division I. Although appellee relies on Harkness v. Harrison, supra, his argument not only undermines the purposes of the speedy trial guarantee but further illustrates the confusion which has resulted from defining the speedy trial right in terms of court. First, since circuit court divisions were abolished after 1978, no overlapping terms could have expired in 1979- See, Alexander v. State, supra. In 1979 the court terms which expired before appellee’s trial date of November were the March, May, June and September terms. Since the May term is ex-cludable because of appellee’s requested continuance and the September term is excludable because of the unavailability of court facilities to try him, the March and June terms only passed in 1979- Second, although there were overlapping terms in 1978, appellee’s requested continuance during the December term of division I strongly suggests that he was unprepared to go to trial a month earlier in division Ill’s November term. Even when both terms simultaneously ended in March 1979, because of the new statute, appellee again was still not prepared to go to trial in May. Irrespective of appellee’s contentions and the support which he solicits from our prior cases, however, we hold that a term justifiably excluded in one division automatically excludes a substantially contemporaneous term in another division. Therefore, appellee’s requested continuance not only excluded the December, 1978 term of division I but the November 1978 term of division III, since it substantially corresponds in time to the period before trial which appellee excluded because of the need for additional trial preparation. Since no more than two terms (March and June) expired before appellee’s trial date, his motion to dismiss should have been denied.

Reversed and remanded.

Fogleman, C.J., concurs.

Hickman and Stroud, JJ., concur in the result.

Purtle, J., dissents.

John A. Fogleman, Justice,

concurring. I concur in the result reached in the majority opinion, but I adhere to the views expressed in my concurring opinion in Alexander v. State, 268 Ark. 384, 598 S.W. 2d 345. I do not entirely agree with the majority’s analysis of Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10. The result growing out of Harkness was not brought about by our decision to “effectively spread the judicial responsibility to expedite criminal matters”; it arose from the fact that divisions of court did not survive Act 432 of 1979, as I pointed out in concurring in Alexander. The idea that the circuit courts, regardless of the civil-criminal division dichotomy, had the responsibility for expediting criminal trials was first given force by this court’s adoption of Criminal Procedure Rules I and II (now superseded by Rule 27.1, Arkansas Rules of Criminal Procedure) adopted some 3-1/2 years prior to the decision in Harkness. I submit that we have never counted “overlapping” terms in making speedy trial determinations. Since January 1, 1979, there are no overlapping terms in the Second Circuit Chancery District or in most of the districts in the state. The Second Circuit-Chancery District is not the same as the Second Judicial District and no mass of rhetoric will make it so. Terms of court were not, and cannot be, set for either a judicial district or a circuit-chancery district. Theré never has been, and could not have been, a Circuit Court of the Second Judicial District. Each circuit court of each county was a separate and distinct circuit court. The fact that, in a judicial district, a circuit judge was elected to preside over the circuit court of each county in the district did not convert the courts in that district from seven separate and distinct circuit courts into one. The same may be said of the situation presently with reference to the newly created circuit-chancery district. The inevitable effect of Act 432 was to make the beginning dates of terms prescribed for divisions of the circuit courts of the counties of the district become the beginning dates for the terms of the circuit court of that county without giving any regard whatever to divisions. See my concurring opinion in Alexander. The majority apparently agrees with my position for it says that divisional terms became regular court terms after January, 1979- Consequently, the problems with which we are faced have little to do with county “overlapping terms of a division.”

A chronology of events in this case will demonstrate, however, that Messer has not been deprived of his right to speedy trial under Article VIII, Arkansas Rules of Criminal Procedure. The chronology discloses:

Date Occurrence
1978
October 13 Arrest of Messer
October 16 Messer’s first appearance. Bond fixed by magistrate.
October 23 Messer released on bond.
October 26 Messer moved for discovery.
October 31 State moved for discovery. Hamilton relieved as attorney for Messer and Todd, present counsel, appointed.
November 20 June term of Division III of circuit court ended and November term began.
December 7 Messer moved for a continuance for the term. (Messer concedes that this motion was for a continuance for the entire December 1978 term.)
December 11 December, 1978, term began. Messer’s motion for continuance was granted and the parties were directed to comply with pretrial discovery. (Messer admits that the December, 1978, term of court is an excluded period under Rule 28.3 (c), Arkansas Rules of Criminal Procedure.)
1979
March 5 A new term of court began in the Circuit Court of Greene County. This terminated the December, 1978, term of Division I, the September term of Division II and the November term of Division III. (Messer was arrested during the May, 1978, term of Division I, the September, 1978, term of Division II and the June, 1978, term of Division III. Because of this, and the continuance, no terms had passed, under Article VII, in Division I; because of the date of arrest, no terms had passed in Division II. Because of the continuance, no terms had passed in Division III. “Overlapping terms” become of no significance.)
May 5 Messer moved for a continuance for the May, 1979, term.
May 21 A new term of the Greene Circuit Court began and Messer’s motion for continuance was ■ granted. (Messer admits that this term is excluded because his motion was granted; however, no reason for not trying Messer during the March, 1979, term appears, so one term of court had expired without Messer having been tried. The state concedes that the March, 1979, term should not be excluded.)
June 4 May term ended and June term began.
September 3 June, 1979, term ended and September, 1979, term began. (The expiration of the June term meant that two terms had expired without Messer’s having been brought to trial.)
October 30 Messer case set for trial on November 20, 1979.
November 12 Messer’s motion to dismiss filed.
November 16 Circuit court order finding that September, 1979, term should be excluded because there were no facilities available for jury trial.
November 19 September, 1979, term ended and November, 1979, term began. (Because of the lack of facilities for trial, the September, 1979, term should be excluded under Rule 28.3 (h). If this is not “other good cause,” it would be difficult to imagine one. The trial court’s order had been entered during the September term.)
Novembe 20 Date set for trial of Messer. (It was agreed that the November, 1979, term is an excluded period because it was the term in which Messer was to have been brought to trial.)

Thus, I agree with the majority that only the March, 1979, term and the June, 1979, term had passed before the date the trial was scheduled to have been held. Since Messer was free on bond, he was not entitled to dismissal before three terms had passed, excluding periods of necessary delay. Rule 28.1 (b), Arkansas Rules of Criminal Procedure.

John I. Purtte, Justice, dissenting. The majority has taken a step backwards by this opinion today. It is unfortunate because we had reached a point in our speedy trial rulings where a trial judge could finally fairly well predict what we would hold in a particular case. Now, we have regressed to the point of Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972), and have certainly overruled Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979), and Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980).

In order to demonstrate my point of view, I will set out the terms of court involved in the present case from the date of the arrest until the date of the granting of the motion to dismiss. These terms are as follows:

ACTION
DIVISION: STARTED: ENDED: TAKEN:
II September 4, 1978 November 20, 1978 Arrested
III November 20, 1978 December 11, 1978 None
I December 11, 1978 March 5, 1979 Continuance
II March 5, 1979 May 21, 1979 None
I May 21, 1979 June 4, 1979 Continuance
III June 4, 1979 September 3, 1979 None
II September 3, 1979 November 19, 1979 Motion filed
III November 19, 1979 December 10, 1979 None
December 10, 1979 (Not Ended) Dismissed

We can see from the illustration above that this arrest continued through all or part of nine terms of court. We stated in Alexander v. State, supra, that one term of court ended when another term commenced. Even if this rule is applied for the first time in calendar 1979, the appellee here was clearly entitled to the relief which was properly granted by the trial court. In looking at the above illustration, we can see that no action was taken in the November 1978 term, the March 1979 term, the June 1979 term, and the September 1979 term. Therefore, if we exclude the September 1978 term when he was arrested, the December 1978 term and the May 1979 term in which he requested a continuance, and the September 1979 term when the motion was made, we still have more than three terms of court that expired before the motion was granted.

I cannot understand why the majority continues to refer to divisions of the courts. I was of the impression that we had already decided that no divisions of the courts were to be considered in determining the matter of a speedy trial.

Whether a particular courtroom is ready for use has no bearing on the time-in which an accused is entitled to have the charges terminated by trial or release, and the fact that a motion for release has been filed does not extend the time for trial. If such motion has any effect at all, it should be to hasten the trial date unless the time has already expired. To hold otherwise would allow an accused to be held indefinitely if he filed a motion for release prior to the release date. For example, Alexander filed his motion, which was denied; yet, the court went ahead with the trial. We reversed because we held the time had expired before trial. The present position would, in my opinion, be different if we applied the same yardstick as we did in Alexander v. State, supra.

To me, there is no way we can logically come up with the decision reached by the majority and give any credence to Rule 30 and our past decisions. Therefore, I feel the trial court acted properly; and, this case should be affirmed.


author: William I. Prewett, Special Justice. John A. Fogleman, Chief Justice,

text:
    Lee A. MUNSON v. Jane ABBOTT, Robert ADAMS, Sr., Paul D. KELLY and Zoe Allen VOGLER
    79-294
    602 S.W. 2d 649
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied October 2, 1980

      House, Holmes & Jewell, by: Philip K. Lyon and Daryl G. Raney, for appellant and cross appellee.

      Lynn-Marie Crider of Youngdahl, Larrison & Agee, for appellees and cross appellants.
   William I. Prewett, Special Justice.

On March 20, 1978, appellees filed a taxpayers’ suit seeking an accounting and restitution of expense funds paid to Lee Munson as Prosecuting Attorney for the Sixth Judicial District of Arkansas. Voluminous pleadings and two days of testimony resulted in a decision by Chancellor Weisenberger denying an accounting, finding the appellant had failed to properly explain certain items of expense and awarding judgment to Pulaski County for $3964.84 and costs of $81.00. An attorneys’ fee of one-third of this was awarded to counsel for appellees. The judgment must be reduced to $335.70 and costs.

Two types of expense accounts are involved, an expense allowance of $2400.00 per year, payable by the State in equal monthly installments without itemization and an office contingency fund appropriated and paid pursuant to Ark. Stat. Ann. § 24-113 (1962 Repl.).

Appellee sought repayment of expenses for Perry County work which were charged to Pulaski County and further alleged some expense claims submitted were fradulent in law. Appellant denied any fraud or wrong and urges the Chancery Court is without jurisdiction to review the decisions of the County Court approving expense claims and the three years of statute of limitation applies.

Appellant filed claims for expenses of the office to be paid from Pulaski County monies appropriated for the office contingency expense fund, depositing the $200.00 a month received from the State for expenses into his personal bank account. Accurate expense records were not kept and supporting documentation for expenses was minimal.

Judge Weisenberger refused to order a complete accounting but did find the burden of proof shifted to the appellant to prove the $200.00 State expense account was expended for costs of the office and not retained as additional salary. Depositing this expense payment into his personal account and the absence of proof of expenses resulted in a finding it was used for personal items rather than expenses of the office. After proof by appellees of gasoline purchases outside the appellant’s Judicial District and for recreational vehicles the trial Court required Appellant to explain these charges and their relationship as expenses of the office. Justification, if fairly plausible, was accepted by the trial Court and only those items for which no explanation was given were found to be improper and restitution ordered. These were:

“(a) Items where defendant had no apparent recollection of doing business in those areas outside the District:

CLAIM DATE LOCATION OF AMOUNT PLAINTIFFS’
NO. PURCHASE NUMBER
75-4741 5/10/75 Gulf-Search, Ark. $ 9.12 415
75-6563 7/27/75 Gulf-Conway, Ark. 11.00 474
75-3487 8/1/75 Sonoco-Paron, Ark. 9.00 477
75-9164 8/31/75 Gulf-Brinkley, Ark. 6.75 501
76-814 10/1/75 Sunoco-Paron, Ark. 11.50 533
76-814 10/10/75 Sunoco-Paron, Ark. 11.25 541
76-814 10/20/75 Sunoco-Paron, Ark. 10.00 553
76-813 12/15/71 Sunoco-Conway, Ark. 8.25 606
75-1205 12/20/75 Sunoco-Harrison, Ark. 9-40 612
76-3024 3/10/76 Sunoco-Paron, Ark. 10.35 694
76-4834 4/16/76 Sunoco-Conway, Ark. 10.75 731
76-8642 7/29/76 Sunoco-Conway, Ark. 11.00 818

(b) Items of Purchase for oversize vehicles:

76-7088 3/13/76 Gulf-Rodney Parham $38.25 C\ s!
76-7088 3/14/76 Gulf-Brookhaven, Miss. 37.10 0\ CO
76-7088 3/18/76 Gulf-Hammond, La. 27.00 G\

(c) Certain other items purchased outside Pulaski County for which the evidence does not reveal a satisfactory explanation:

75-4598 4/4/75 Gulf-Perryville, Ark. 8.25 393
75-4968 5/18/75 Gulf-Benton, Ark. 11.47 417
75-5727 7/9/75 Sunoco-Atkins, Ark. 5.50 460
75-9164 7/31/75 Gulf-Perryville, Ark. 11.50 476
75-9164 8/13/75 Gulf-Perryville, Ark. 12.25 484
76-843 11/7/75 Gulf-Sheridan, Ark. 16.60 571
76-843 11/11/75 Gulf-Hampton, Ark. 1.90 575
75-769 12/7/75 Gulf-Stuttgart, Ark. 10.30 597
76-1205 1/12/76 Sunco-Humphrey, Ark. 1.10 634
76-4808 4/2/76 Gulf-Perryville, Ark. 6.91 718
76-7088 5/12/76 Gulf-Fordyce, Ark. 10.85 728
76-7625 7/16/76 Gulf-Perryville, Ark. 10.35 805”

The trial Court also found certain Perry County office expenses totaling $229.15 were improperly charged to Pulaski County and must be reimbursed. Restitution to Pulaski County was ordered for $3400.00 received from the State pursuant to Act 1218, for $229.15 Perry County expenses charged to Pulaski County and for $335.70 expenses for which no reasonable explanation was given by appellant.

Act 1218 of 1975, Section 2, quote in full, provides:

“The Prosecuting Attorney for the Sixth Judicial District of the State of Arkansas shall be entitled to an expense allowance of TWENTY-FOUR HUNDRED DOLLARS ($2400.00) per annum, payable in equal monthly installments.”

The Legislature has authorized lump sum expenses in this and in similar legislation. For example, Act 209 of 1977 (Ark. Stat. Ann. § 22-141, 1962 Repl.) authorizes payment of a monthly expense of $300.00 to judges of the courts of general jurisdiction or actual expenses at the election of the judge. Legislative authority for reasonable lump sum expense payments is clear. Black v. Cockrill, 239 Ark. 367, 389 S.W. 2d 881 (1965), reiterated the well understood principle that our Constitution is a limitation of powers, not a grant. Thus, unless prohibited by our Constitution or by federal law, the Legislature has exclusive control of the expenditure of public money. Where the Legislature has established payment of expenses by paying a lump sum without itemization, the Court has no power to inquire into the wisdom, amount, necessity or propriety of the legislative decision. That branch of government is responsible only to the people so long as its action is not in violation of or a sham for the purpose of evading the Constitution. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857 (1974); Reed v. Hundley, 208 Ark. 924, 925, 188 S.W. 2d 117 (1945); Act 1218 provided a lump sum expense payment to the Prosecuting Attorney; it shall be paid “in equal monthly installments” and there is no requirement of itemization or proof. While monthly expense installments are generally valid, a different legislative intent is found where the legislation authorizes payment of reasonable expenses “not to exceed” a certain sum. Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741 (1972). No similar language is in Act 1218 and this Court is without authority to add to the clear language of the Act. Lump sum expense appropriations are not inherently improper or illegal. See State v. Thomason, 142 Tenn. 527, 221 S.W. 491 (1919); State v. Reeves, 44 S.D. 568, 184 S.W. 993 (1921). The Legislature, if it chooses, may estimate expenses in advance and determine a reasonable and proper amount. McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 (1915). Ark. Constitution Amendment 21 specifically empowers the Legislature with responsibility to establish the “amount and method” of payment of salaries to all prosecuting attorneys. There is no limitation. Prior cases cited by appellees on officer expenses involved constitutional máximums on salary and thus presented a different question. In the absence of proof the monies were not used as expenses, the legislative authorization cannot be disregarded. As stated in Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, 289 (1964), rehearing opinion,

“. . . upon a proper showing by the plaintiff there might be a recovery of funds to which the recipient was not entitled. At the trial the appellant had the opportunity to prove that the appellees had received public money in excess of their actual expense. The appellant chose not to take advantage of the opportunity that was presented.”

Appellees had the opportunity and the burden to prove the monies received were not for expenses. White v. Williams, 192 Ark. 41, 89 S.W. 2d 927 (1936). Officers of the state

“are cloaked with the presumption that their actions are lawful, correct and in good faith and sincerity of purpose in the exercise of their duties. Rockfeller v. Hogue, 224 Ark. 1029, 429 S.W. 2d 85 (1968). Appellees have not overcome this presumption by showing that Senator Fletcher did not actually have legitimate reimbursable expenses in excess of the amount claimed.” Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857, 860 (1974).

To sustain the order to repay the monthly expense installment, appellees cite Laman v. Smith, 252 Ark. 290, 478 S.W. 2d 741 (1972). The case does not support appellees’ position. In Laman, the court declared an ordinance appropriating public relations expense money to be valid and not in violation of the $5000.00 constitutional salary maximum for certain city officials, although it authorized officials to draw monthly warrants “in an amount not to exceed one-twelfth” of the amount appropriated. While finding the ordinance valid, the court pointed out that one-twelfth could not be drawn each month because the ordinance stated “not to exceed” one-twelfth. There is a vast difference where the words “not to exceed” are used; there is also a vast difference where a constitutional salary maximum is established. Neither situation is present in this case. Of course, payment of expenses in a lump sum clearly in excess of any expense that could reasonably be incurred or anticipated may not withstand judicial scrutiny.

The three years statute of limitations applies. An action, such as this one, to recover money paid or obtained through mistake, in the absence of fraud or corruption, is an action founded upon an implied contract, not in writing, and must be commenced within three years. State, Use and Benefit of Garland County v.Jones, 198 Ark. 756, 131 S.W. 2d 612 (1939); Baker v. Allen, 204 Ark. 818, 164 S.W. 2d 1004 (1942); Ward v. Farrell, 221 Ark. 363, 253 S.W. 2d 353 (1952); Ark. Stat. Ann. § 37-206 (1962 Repl.).

By Ark. Stat. Ann. § 24-113 (1962 Repl.), the Legislature established a contingent expense fund for the office of the Prosecuting Attorney:

“The prosecuting attorney of each judicial circuit shall be allowed a contingent expense of his office including telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expense, special service, operation of automobiles, and such other expense which, within the discretion of the prosecuting attorney, may be a proper expense of the office, and also including necessary expense in connection with any proper investigation incident to any criminal law violation or trials before any grand jury, or any court within said judicial circuit, coming within the duties of his office.”

Ark. Stat. Ann. § 24-114 (1962 Repl.) required the Counties to appropriate specific sums to be paid “by vouchers signed by the Prosecuting Attorney and allowed by the County Court as claims . . .”. Pursuant to these acts, the appellant filed claims which were approved by the County Court and paid from the appropriated funds. Perry County expenses of $229.15 paid by Pulaski County were ordered reimbursed to Pulaski County. Of this total, all except $9-15 had been paid to the appellant more than three years prior to the filing of the Complaint and would be barred by limitations. However, this entire sum of $229-15 was clearly payment for proper expenses of the office of the Prosecuting Attorney. The appropriations from each county is to the contingent expense fund for the “office” and such expense as the Prosecuting Attorney, within his reasonable “discretion” finds to be “a proper expense of the office" (emphasis added) may be paid from the fund. Finding nothing in the Act to mandate the separation of expenses by the county, the judgment for this must be reversed. Whether such a requirement would be wise is a matter for the Legislature, not this Court.

Appellant questions jurisdiction of the Chancery Court to review expenses approved by the County Court. It has long been recognized that the County Court, in passing on a claim presented to it, acts in a judicial capacity. Accordingly, the remedy is appeal. As stated in Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S.W. 2d 672, 677 (1960),

“We agree with appellant that the Chancery Court had no jurisdiction to order repayment of claims already allowed. In the absence of fraud (and we think no fraud was shown here) the remedy was by appeal to the Circuit Court.”

In the Green case, the Court recognized an illegal exaction as an exception to the rule, referring to Article 16, Section 13 of the Arkansas Constitution.

“Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.”

This provision has been held to confer jurisdiction for equitable remedies in the event of an illegal exaction, defined in Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974) as any exaction that either is not authorized by law or is contrary to law. This issue was squarely faced in Tedford v. Mears, 258 Ark. 450, 526 S.W. 2d 1 (1975) when the Court stated:

“We hold that the Chancery Court has jurisdiction in this case to require an accounting and restitution by all of the county officers drawing funds under provisions of the invalidated acts.” 526 S.W. 2d 5

Accordingly, it is the law of this State that the Chancery Court has jurisdiction to order repayment of an illegal exaction even where the “exaction” is in good faith and has been approved by the County Court. See also Ward v. Farrell, 221 Ark. 363, 253 S.W. 2d 353 (1952). The trial judge found expenses totaling $335.70 required explanation by appellant to justify them as expenses of the office of the Prosecuting Attorney. In the absence of such explanation, the payments would constitute an exaction not authorized by law and thus an illegal exaction. After appellees made a prima facie showing a particular expense was not related to the duties of the office, the trial Court properly required an explanation of these items by appellant. This did not change the burden. In the absence of some plausible explanation, the prima facie showing met appellees’ burden and supported the finding that expenditures made outside the Judicial District and for recreational vehicles were not proper office expenses. This finding is supported by the evidence and the public need for accountability and integrity in public officials, who must be ever watchful to avoid even the appearance of impropriety. Where the Chancellor’s findings are not against the preponderance of the evidence, the reviewing Court will affirm. Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974). The findings of the Chancellor are not contrary to the preponderance of the evidence and we affirm the judgment ordering repayment of $335.70 to Pulaski County.

On authority of Ark. Stat. Ann. § 84-4601 (I960 Repl.), the trial Court awarded attorneys fees to the attorneys for appellees. This Act applies only to litigation in which the court “orders any county, city or town to refund or return to taxpayers money illegally exacted. . . Attorneys fees cannot be awarded as the language of the Act is clear and cannot be extended beyond its plain wording. Bahil v. Scribner, 265 Ark. 834, 581 S.W. 2d 334 (1979).

By cross appeal, appellees argue appellant should be required to account (explain) for all oil company expense payments. While the failure to separate personal and expense receipts is a questionable practice, this is not a sufficient basis to order an accounting of all expenses paid to or at the direction of appellant. Cases cited by appellees do not support this contention. Appellees also question representation of appellant by deputy prosecuting attorneys. Early in this litigation, the trial Court placed specific limits on the time which deputy prosecuting attorneys could devote to representation of appellant. Work on this case could not be a part of their duties. Ark. Stat. Ann. § 24-101 (1962 Repl.). Obviously, it is impossible for any attorney to totally separate his official time from his “off’ time. Because of the possible conflict of time and interest, the better procedure would have been to prohibit those serving as full time deputy prosecuting attorneys from also serving as attorneys for appellant. However, any error was not prejudicial. The cross appeal must be dismissed.

The judgment against appellant is modified to award the sum of $335.70 plus costs of $81.00 in the trial Court. In all other respects, it is reversed and dismissed.

Fogleman, C.J., dissents in part.

Mays, J., not participating.

John A. Fogleman, Chief Justice,

dissenting. The question of the propriety of expense allowances without requiring any itemization or accounting is not for the courts. However unwise we may think such a provision to be, the matter is one for legislative determination. Apparently we have considered the legislative discretion to be absolute in such cases, except where the allowance has been used to evade constitutional limitations on the amount of compensation to be paid a public official. No such limitation is involved here. Tedford v. Mears, 258 Ark. 450, 526 S.W. 2d 1, is a case where such a limitation was involved. The acts involved were held to be unconstitutional as applied and administered in Pulaski County. They were held to be constitutional as adopted. Thus, Tedford clearly falls into that category of cases controlled by the existence of constitutional • salary limitations. It is not authority for permitting a chancery action by a taxpayer when, as here, there was an adequate remedy by appeal.

Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S.W. 2d 672, does not afford that authority. In that case, we considered the action as one for declaratory judgment. The closing paragraph of the opinion shows clearly that the decision was only prospective. We said:

Since, as before stated, we treat the petition as one for a declaratory judgment, and in view of what we have already said, it was not appropriate for the Chancellor to enjoin the Association from filing claims and the Judge from allowing the same. These are matters involving judicial procedure and should be decided on the peculiar facts of each case. The trial court did have authority to enter a declaratory decree, and it should have done so, in accordance with this opinion, thereby setting at rest the present controversy. Therefore the case is remanded for the entry of such a declaratory decree.

This case cannot be converted into a declaratory judgment action.

Chancery court jurisdiction in Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726, was sustained on the basis of prevention of misapplication of funds. Again, we treated the action as one for declaratory judgment.

Ward v. Farrell, 221 Ark. 363, 253 S.W. 2d 353, is readily distinguishable. For the most part the action involved injunctive relief. The chancellor dismissed the action for recovery of certain payments in the guise of “expenses” which enabled him to draw more than his authorized salary. The county judge claimed that he had drawn expenses as Ex-officio Road Commissioner of Greene County, as authorized by a legislative act. No appropriation for these expenses had been made in 1947 and 1948, as required by the act. Appropriations were made for the subsequent years involved. Reference to Art. 16, § 13 of the constitution was made only in answer to the contention that the exclusive authority to bring the action was vested in the State Auditorial Department. This court sustained the chancery court action as to years prior to 1948 because recovery was barred by the three-year statute of limitations. We sustained the chancery court as to these expenses for years after 1948 because there had been an appropriation for each of those years by the quorum court. No injunctive relief was called for as to the expense allowance. The case was remanded, insofar as the claimed expenses were concerned, only to give the county judge an opportunity to justify his acceptance of expenses as Ex-officio Road Commissioner in 1948, for which no appropriation had been made. It was pointed out in the opinion that a county judge could not pass on his own claim, except where his salary was fixed by law and his actions involved no exercise of discretion.

The chancellor made a clear and distinct finding in this case that there was no fraud. His findings include the following:

It is contended that defendant was guilty of fraud, both actual and constructive. Certainly defendant was a poor record keeper. Some reference will be made to his bank accounts hereinafter. In addition there appears no logical excuse for this, considering his training, official position and office help.
After studying the very thorough briefs, reading authorities and pondering the law and evidence this court can not find by the greater weight of the evidence that defendant is guilty of fraud. The carelessness and inefficient record keeping revealed by the evidence is not sufficient to justify a finding of fraud — actual or constructive. ***

In the absence of fraud or the requirement that a showing be made that the expenses were not collected as a subterfuge to evade constitutional salary limitations, the chancery court simply had no jurisdiction to order the repayment of the $335.70 which had been paid after allowance by the County Court of Pulaski County from which no appeal had been taken, simply because after the passage of many months appellant could not justify the particular expenditures due to lack of recollection.

Perhaps appellant should suffer some penalty for mingling his expense allowances with his personal funds and for sloppy procedures. Even if he was not called upon to account for the legislative allowances, the relationship of actual expenses to those allowances would certainly be pertinent in legislative determination of their adequacy. But it is not the function of the courts to render judgments in such a case for negligence, imprudence, or even recklessness'.

In spite of my reservations about the lack of a requirement for an accounting, I would reverse the decree and dismiss the action. Perhaps, because it is an equity case, appellant should bear the costs.


author: PER CURIAM

text:
    William J. FOUNTAIN v. STATE of Arkansas
    CR 80-114
    601 S.W. 2d 862
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      E. Alvin Schay, Appellate Public Defender, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   PER CURIAM

Appellant has filed a pro se motion to complete the record. The State has not objected to his motion. He alleges that discussions between the trial court, counsel and himself on several enumerated occasions, which were overruled, were not recorded and, thus only appear in the transcript as “off the record” notations. He also contends that “in chambers” conferences between the court and counsel were only noted as being “off the record.”

After reviewing appellant’s allegations, we conclude that a few of the conferences held at the bench and in chambers were not recorded and are only noted as having been held. It appears that substantive matters may have been discussed during these conferences.

Therefore, we remand this case to the trial court to settle the record in accordance with Appellate Procedure Rule 6.

We also take this opportunity to express our concern about “off the record” conferences held in chambers or at the bench. We are concerned, as are other courts, about “off the record” conferences. The West Virginia Supreme Court of Appeals noted State v. Boling, 246 S.E. 2d 631, 635 (W.Va. 1978), “The question of what portions of a criminal trial should be recorded by the court reporter is a subject of increasing judicial attention.” Each state approaches the problem differently depending on the wording and construction of the particular court reporter acts. Arkansas’ is Ark. Stat. Ann. § 22-352 (Repl. 1962).

The consensus of the various states is that the practice should be to record discussions between court and counsel occurring during trial that pertain to substantive matters involving that trial. See, State v. Boling, supra; State v. Zamora, 91 N.M. 470, 575 P. 2d 1355 (1978); Braxton v. United States, 395 A. 2d 759 (C.A. D.C. 1978); State v. Cunningham, 18 Wash. App. 517, 569 P. 2d 1211 (1911); State v. Buckalew, 561 P. 2d 289 (Alk. 1977); Commonwealth v. Swenson, 368 Mass. 268, 331 N.E. 2d 893 (1975); State v. Longoria, 520 P. 2d 912 (Or. 1974); State v. Guffey, 205 Kan. 9, 468 P. 2d 254 (1970); Quitana v. People, 405 P. 2d 740 (Colo. 1965).

While it is the responsibility of the trial court to see that a fair and adequate record of a trial is preserved, counsel must be diligent and responsible in seeing that one is made. “The complete transcript is of crucial importance for a meaningful review of both the appellate court and to new counsel on appeal.” State v. Green, 129 N.J. Super, 157, 322 A. 2d 495, 499 (1974). All bench conferences and in chambers conferences should be “on the record” unless they involve matters unrelated to the current trial, in which case, a note to that effect may be made.

Remanded to the trial court for settlement of the record.


text:
    Arzelle Lee PHILLIPS v. STATE of Arkansas
    CR 80-125
    601 S.W. 2d 863
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   PER CURIAM

The appellant, Arzelle Lee Phillips, through his attorney, William C. McArthur of Little Rock, Arkansas, has filed a motion for a rule on the Clerk.

Attached to the motion is an affidavit by Jewel Brown, appellant’s trial counsel, in which it is admitted that Brown failed to timely lodge the record as it was his duty to do.

We have found in the past and acknowledge that such an error, admittedly made by an attorney for a criminal defendant, constitutes good cause for a delay for which we will grant a motion for a rule on the Clerk. In a per curiam opinion regarding belated appeals, rendered February 5, 1978, we discussed the problem of a untimely tender of a record caused by an attorney representing a criminal defendant. We decided that we have no alternative but to grant a motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct.

We find good cause exists in this case and forward a copy of this opinion to the Committee on Professional Conduct as is our practice.


author: John A. Fogleman, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Joe TAYLOR, Jr. et ux
    80-44
    602 S.W. 2d 657
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980
    Rehearing denied August 25, 1980

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Ltghtle, Beebe & Raney, by: J. E. Lightle, Jr., for appellees.
   John A. Fogleman, Chief Justice.

This is the third appeal in this eminent domain case which was filed in the circuit court on April 28, 1972. On June 3, 1974, we reversed a judgment in favor of the landowner for $110,000 on the ground that an abstracter of titles, who did not qualify as an expert on land values, was permitted to testify as to trends in real estates values in an industrial park area and to state an opinion as to the minimum market value of industrial property in the area, but the land bringing that price was not shown to be comparable to the Taylor land. See Arkansas State Highway Com’n. v. Taylor, 256 Ark. 681, 509 S.W. 2d 817. On October 25, 1976, we affirmed the order of the circuit court granting the landowner’s motion for new trial and setting aside a verdict of $56,000 in favor of the landowner, because of an irregularity in the proceedings with reference to jury selection. Arkansas State Highway Com’n. v. Taylor, 260 Ark. 524, 542 S.W. 2d 498. The judgment from which this appeal was taken awarded the Taylors $175,000 based on a jury verdict for that amount rendered on October 3, 1979. We will not set out the facts as to the taking with particularity because they are stated in the opinion on first appeal. Appellant asserts the following points for reversal:

I
THE COURT ERRED IN PERMITTING THE TESTIMONY OF JOE TAYLOR, JR., TO GO TO THE JURY.
II
THERE IS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE SEVERE SEVERANCE DAMAGE PLACED ON THE REMAINING LANDS BY APPELLEE AND HIS WITNESSES.
III
THE COURT ERRED IN PERMITTING TESTIMONY BY THE LANDOWNER OF COSTS EXPENDED IN DEVELOPMENT OF PROPERTY IN LITIGATION.
IV
THE VERDICT OF THE JURY IS EXCESSIVE.
V
THE COURT ERRED IN RULING THAT APPELLANT’S DEPOSIT OF ESTIMATED COMPENSATION WAS A MATTER TO BE CONSIDERED BY THE JURY.

I

Joe Taylor, Jr., the landowner, testified that the fair market value of his 395-acre tract at the time of the taking was $2,200 per acre. Appellant contends that Taylor based this valuation solely on a sale he had made of a one-acre tract to a public utility about one year prior to the taking. On direct examination of Taylor, his attorney asked him on what he based the value of $2,200 per acre, and Taylor replied, “I base that value on a tract of land that I had sold to a company for $3,000 an acre.” When asked if that acre was really comparable, Taylor said that it was not, but that it was the only property sold from the land in the last 40 years. When asked about comparable sales on cross-examination, Taylor said that he did not know of any other sales in the area of lands comparable to his and that he was “more or less relying” on this one-acre sale “because it actually happened.”

Joe Taylor, Jr., had liyed in Searcy since 1933. He now lives on the land from which the right-of-way was taken. It was outside the city limits at the time of taking. Taylor had bought the land from his father in 1953. His father had owned the land for approximately 12 years. The witness said that he had used the land for agricultural purposes, raising soybeans, milo and -cattle, but it was separated from the industrial district of Searcy, which was rapidly growing in the direction of Taylor’s land, only by a 40-acre tract. He described the topography of the land and its drainage and discussed the availability of utilities prior to the taking. He testified that he was generally familiar with the value of lands surrounding, or in the area of, his farm and had been in April, 1972, when the right-of-way was taken. He said that the total value of his property had been $869,000 at the time of the taking, but only $612,800 thereafter, making the total damage by reason of the taking $256,200.

Taylor certainly exhibited an intimate familiarity with his property. We have said that landowner who has an intimate acquaintance with his property may give value testimony, even though he had no knowledge of other property values, and that we view his testimony on appeal to see if it has any substantial basis. Arkansas Louisiana Gas Co. v. Verser, 251 Ark. 764, 475 S.W. 2d 148. Our review of the landowner’s testimony is to determine whether there is a satisfactory explanation given for the conclusion reached. Arkansas State Highway Com’n. v. Watson, 248 Ark. 422, 451 S.W. 2d 741. This situation bears a great deal of similarity to that we considered in Arkansas State Highway Com’n. v. Duff, 246 Ark. 922, 440 S.W. 2d 563, where we found the landowner’s testimony to be substantial on the basis of his demonstrated familiarity with the land. See also, Arkansas State Highway Com’n. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1, where we said that it was not necessary to show that the landowner was acquainted with the market value of the property, or that he was an expert on values, but that the weight to be given his testimony would be affected by his knowledge of the value. The landowner’s opinion is admissible simply because he owns the land and is qualified to state an opinion as to the value of what he owns and it is to be stricken only if it is demonstrated that there is no fair or logical basis of support for it and not if the basis is only weak or questionable. Arkansas State Highway Com’n. v. Jones, 256 Ark. 40, 505 S.W. 2d 210.

The mere fact that the landowner did not know of any sales of land at the value he placed upon his property would not demonstrate that he had no reasonable basis for his opinion. Arkansas State Highway Com’n. v. McAlister, 247 Ark. 757, 447 S.W. 2d 649. In view of the landowner’s intimate familiarity with the land in every particular, we find no error in the admission of his testimony. See Arkansas State Highway Com’n. v. Shields, 249 Ark. 710, 460 S.W. 2d 746; Arkansas State Highway Com’n. v. Price, 258 Ark. 606, 527 S.W. 2d 907.

II

Appellant argues that the severance damages about which appellees’ witnesses testified are without substantial support because subsequent sales of tracts from one of the residual tracts, which contained 153 acres and lay on the east side of the new highway, for prices up to $6,000 per acre removes whatever substantiality their opinions had. C. V. Barnes, who qualified as a real estate appraiser, fixed that damage at $500 per acre. Barnes said that the fact that the property was separated into two smaller residuals, without access from either to the highway, had an effect on their value. He pointed out that there had been a loss of 328 feet of highway frontage and of the corner at the intersection of Benton Street, which was shown on the master street plan of Searcy as a principal north-south collector street, and Highway 320, a principal east-west thoroughfare. According to him, the triangular shapes of the two tracts made them less desirable for development. He said that the property was not as flexible or adaptable for use as it had been. It was his opinion that the quarter-mile depth of the 153-acre tract, lying east of the highway was less desirable than the original one-mile depth of the tract.

Appellant argues that Barnes’ testimony as to the damage to appellees’ remaining land was not substantial when the size of the two residual tracts and the highest and best use are considered. Appellant apparently bases its argument upon the fact that Barnes admitted that the depth of the eastern residual tract was more than adequate for commercial development. Although Barnes had said that the highest and best use of the property in April, 1972, was for future urban development with a high incidence of industrial and commercial use, he had stressed the industrial growth and its trend toward the Taylor property. The depth was only one of the factors Barnes mentioned in saying that the property’s flexibility and adaptability for development had been adversely affected. We do not consider that appellant has demonstrated that Barnes’ testimony was unsupported by substantial evidence.

Barnes’ opinion as to just compensation totalled only $127,500, so appellant’s contentions as to the testimony of Taylor and another witness, E. D. Yancey, must be considered. Taylor was of the opinion that the value of the 153-acre tract had been decreased $1,200 per acre by the taking. Appellant says that it was revealed during Taylor’s testimony that appellees had, after the taking, sold 12 parcels, the total area of which was 20 acres, from the 153-acre tract at prices ranging from $2,000 to $6,000 per acre. The number of sales was supported only by the statement of appellant’s value expert about what his investigation revealed. The first of these sales took place in 1974. Others seem to have been in 1976. Taylor said that these tracts were in the most valuable area of this tract and that he had spent $93,000 in improving the property by putting in water lines and black top streets.

Yancey, who had been Executive Vice-President of First Security Bank for the past 18 years, qualified as an expert witness on real estate values because of his capacity as commercial loan officer for the bank. He was of the opinion that the value of the land east of the new highway was diminished by an average of $900 per acre because of the taking. He considered that the Taylor land was in the Searcy industrial area prior to the taking, but that the highest and best use of the 153-acre tract after the taking would be for rice farming, although there were parts of it that could have a higher value than rice land would. He said that it would be very difficult to get water and sewer services to the tract after the taking. He said that he had valued the land in 1972 but not according to subsequent conditions. Yancey said that, in his opinion, the difference between the value of the whole tract before the taking and the value of the reamining lands was $186,477.

Appellant’s value witnesses agreed with appellees that the highest and best use of the Taylor property at the time of the taking was for industrial development. There was not a wide variance in the views of the expert witnesses as to the value of the land before the taking. Barnes said that it was $1,250 per acre. Yancey said that it was $1,500 per acre. Appellant’s expert placed that value at $1,000 per acre. Appellant admits that the value fixed by Barnes is not “patently unreasonable.”

Although the witness for appellant differed' sharply with those testifying for appellees as to the value of the Taylor land after the taking, we cannot say that the testimony of those witnesses as to severance damage was not substantial.

Ill

Appellant argues that the testimony of Taylor as to his expenditure of $93,000 in providing utilities to the property was erroneously admitted because it was not relevant to the issue before the jury. The testimony to which appellant objected was brought out on redirect examination, after appellant’s attorney had asked Taylor on cross-examination about sales of lands from the 153-acre tract after the taking. It was relevant for the purpose of explaining those sales and the prices at which those tracts sold. No limiting instruction was requested.

IV

Appellant’s argument on this point is that there was no substantial evidence to support the severance damage attributed to the 153-acre tract, and no basis for Barnes’ testimony that the 209 acres west of the highway had suffered severance damage, and that, because of the sales made by Taylor after the taking, the verdict for $175,000 was the result of passion and prejudice. We cannot say that the verdict was the result of passion and prejudice. The testimony of Yancey would support the verdict, even if the testimony of Taylor had been disregarded by the jury. We have already treated the contention of appellant that the evidence pertaining to severance damage was not substantial except for that of Barnes that the severance damage to the remaining lands west of the highway was $10,500. Barnes’ testimony, standing alone, would have only supported a verdict for $127,500, so the jury must have found that the testimony of Yancey and Taylor weighed somewhat more than that of Barnes. In any event, it was for the jury to determine whether to give any weight to Barnes’ testimony that the land was worth $50 per acre less after the taking because its size and shape and the elimination of road frontage and a potential “street corner” made it less suitable for development.

V

Appellant is correct in its argument that ordinarily evidence of the amount deposited by a condemnor as estimated just compensation is not admissible in evidence. The amount is only tentative and the amount ultimately fixed may be more or less than the deposit. 6 A Nichols on Eminent Domain, p. 27-55, § 27.25 [1] (1979). The amount of deposit is not admissible to contradict lower valuations by other witnesses and should be totally disregarded in fixing the award. United States v. 2.1873 Acres of Land, 461 F. 2d 938 (8 Cir., 1972); United States v. 9.83 Acres of Land, 183 F. Supp. 402, aff'd. mem. 279 F. 2d 890 (4 Cir., 1960). See also, Arkansas State Highway Com’n. v. Blakeley, 231 Ark. 273, 329 S.W. 2d 158.

In the peculiar circumstances of this case, appellant is in no position to assert error in the trail court’s ruling. Appellant made a motion in limine asking that “no mention be made of the deposit in this case.” The stated basis of the motion was that “[i]t is an offer of compromise which was rejected by the landowner.” This evidence was not objectionable on the ground stated. An offer of compromise is usually inadmissible in evidence, but the thought that the deposit of estimated just compensation was an offer of compromise is misguided. It is only an estimate by the condemnor of the amount to which the landowner is entitled as just compensation for the taking or damaging of his property. Ark. Stat. Ann. § 76-535 (Repl. 1957). Title vests in the condemnor when the deposit is made, and it is the basis upon which the condemnor becomes entitled to immediate possession of the land taken. Ark. Stat. Ann. § 76-535, -538 (Repl. 1957). The court can require that the deposit be increased but the hearing on the amount of the deposit does not interfere with possession already taken by the condemnor. Ark. Stat. Ann. § 76-541 (Supp. 1979).

There was obviously no error in the overruling of this objection. When appellant’s attorney made his opening statement, he said that the Highway Department had originally deposited $53,000 as their estimate of the amount of damages to the landowner on the basis of appraisals made by appraisers employed by the department and that their appraisals were made upon the basis that the highest use of the land was for farming purposes. The only witness produced by appellant on the question of land values was Robert E. Shockley, who testified that the highest and best use of the land was for industrial development. Although no mention was made of the deposit during the presentation of testimony on behalf of the landowners, it was natural and proper that appellant’s attorney ask Shelton on cross-examination if his appraisal made in 1972 was used by the department in determining the amount of its deposit. Arkansas State Highway Com’n. v. Blakeley, supra. When asked to explain why there was a difference, Shelton stated that he understood that those who originally appraised the Taylor property viewed it as agricultural land and not as industrial land and that he did not agree on that point. Appellant made no objection to any of this cross-examination. If there was any error in permitting it, appellant’s opening statement rendered the error harmless, even if the opening statement could be evaluated as anything other than an open invitation to appellees to pursue this line of cross-examination.

The judgment is affirmed.

Hickman, J., not participating.


author: Frank Holt, Justice.

text:
    L. Joe STOCKER v. Robert HALL
    80-70
    602 S.W. 2d 662
    Supreme Court of Arkansas
    Opinion delivered July 7, 1980
    Rehearing denied September 10, 1980

      Ben Johnson, Jr., for appellant.

      John L. Kearney, for appellee.
   Frank Holt, Justice.

By the terms of a written contract, the appellant was to provide labor and materials for the remodeling of appellee’s residence. The remodeling was to be completed in 60 days at a total cost to appellee of $10,079-90. Appellee filed suit about 2!4 years later alleging that the appellant had breached the contract. He asked for $3,347.43 as damages, which was appellee’s cost to complete the remodeling. The appellant answered and couterclaimed that the contract was modified by mutual agreement requiring extra work and material which increased appellee’s obligation to appellant from $10,079-90 to $12,281.00. Appellant alleged that, although he had substantially performed the agreed modifications, the appellee’s refusal to pay a balance of $2,531.90 on the additional sum agreed upon made further performance impossible and constituted a breach of contract, discharging any duty appellant owed appellee. He sought to recover as damages $2,531-90 as the balance owed on the contract as modified. Appellee denied the allegations in appellant’s counterclaim. The trial court, sitting as a jury, found, however, that the original contract had been modified by agreement of the parties; the appellant was entitled to an additional $836 over the original contract price for work and material furnished by him not required by the original contract; however, appellee had expended $1,-531.42 in securing work and materials which the appellant had agreed to do and failed to provide; the appellee had paid the appellant $400.00 over the original price of $10,079-90, or a total of $10,479.90; the court then substracted the $400.00 from the appellant’s $836.00 setoff, leaving a $436.00 setoff. This was subtracted from the $1,531.42, leaving $1,095.42 owed appellee by appellant.

Since the case was tried before the court, sitting as a jury, after July 1, 1979, findings of fact by the court will not be set aside unless they are clearly against the preponderance of the evidence. Taylor v. Richardson, 266 Ark. 447, 585 S.W. 2d 934 (1979). Ark. Rules of Civ. Proc., Rule 52 (1979).

We first consider appellant’s contention that the court erred in finding that the contract price “was modified only $836.00 over the” original contract price. He primarily argues that since the appellee’s attorney, rather than the appellee himself, verified the responses to the requests for admission, the facts in the requests are deemed admitted, citing Young, Adm’r v. Dodson, 239 Ark. 143, 388 S.W. 2d 94 (1965); and Ark. Stat. Ann. § 28-358 (Supp. 1977), the statute in effect at the time of the hearing. Therefore, appellant argues that the court erred in not considering Request No. 25 as an admission concerning the amount of the modification:

That for all the above stated additions, expansions, and modifications, plaintiff agreed to pay defendant $2,-202.00 above the January 20, 1977 contract price of $10,079.90.

The appellee responds that even if the initial responses were improper, it was within the discretion of the court to allow his motion to make a properly verified oral or written response after the statutory time had expired, citing Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23 (1957). Even so, the record reveals no order indicating that this occurred. In Young v. Dodson, supra, we resolved the question of whether the party or the party’s attorney must verify the responses. There we held that the responses were “improper and inadequate, because of the fact that the responses were sworn to by the attorneys for the respective parties, rather than the parties themselves.” We held that since the responses were inadequate and deficient, they were to be considered as admissions. We have adhered to this rule. Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W. 2d 558 (1970); Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294 (1966); and B and P, Inc., v. Norment, 241 Ark. 1092, 411 S.W. 2d 506 (1967). Here we hold the fact asserted in Request No. 25 must be deemed as admitted. The value of the modifications was, therefore, $2,-202.00 rather than $836.00 as found by the court.

We next consider appellant’s contention that the court erred in granting judgment for the appellee inasmuch as the evidence, when viewed in the light of the court’s finding that the contract was modified, clearly indicates an anticipatory breach by the appellee. We must agree. According to appellant’s pleadings, the appellee had agreed to increase the $10,079-90 contract price to $12,281.00 for certain modifications requiring additional labor and materials. According to his testimony, appellee had paid him $400.00 of the extra $2,651.00 he had agreed to pay for the modifications. When appellee informed him that he wasn’t going to pay “extra money”, the appellant stopped work on the house. However, he remained willing to perform the contract which was substantially performed, if the appellee would pay him the balance owed. The witnesses corroborated appellant’s testimony that appellee requested and agreed to pay for certain modifications on the remodeling which required extra labor and materials. According to one witness, appellee agreed to pay appellant “over $2,000.00” for the modifications.

We have held that the failure of one party to perform its contractual obligations releases the other party from its obligations. Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S.W. 2d 792 (1957); Grayling Lumber Co. v. Hemingway, 128 Ark. 535, 194 S.W. 508 (1917); Spencer Medicine Co. v. Hall, 78 Ark. 336 (1906); and Lewelling & Price-Willaims v. St. Francis Co. R.I. Dist. 1, 158 Ark. 91, 250 S.W. 1 (1923). The party who first breaches a contract is in no position to take advantage of a later breach by the other party. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762 (1949).

Here, despite appellee’s testimony there was no subsequent agreement with respect to the original contract and the $400.00 overpayment was a mistake, the court found that the contract was modified by the agreement of the parties. The court awarded $836.00 damages to the appellant as a setoff. The evidence, as found by the court, clearly established a modification agreement and that the appellant stopped work only when he was refused payment for the agreed modifications.

The anticipatory breach of a contract justifies the other party to treat the contract at an end and permits an action for a breach of the contract. Spencer Medicine Co. v. Hall, supra. Williston on Contracts, 3d § 1397, reads in pertinent part: “Anticipatory breach does not change the nature of the contract, and the normal rule of damages is, therefore, the same as if the breach had not taken place until the time fixed in the contract for performance.” The anticipatory repudiation here excused any performance by the appellant and negated the right of the appellee to recover expenditures made by him to complete the remodeling modifications.

According to the request for admissions, which must be deemed admitted, as previously discussed, the appellant is due a balance of $2,202.00 on the contract. However, as we understand appellant’s argument, he asks for $1,401 as damages sustained by him due to appellee’s breach of the contract. In arriving at this figure, it appears that appellant is willing to give appellee credit for $850.00 for pouring a concrete driveway together with his $400.00 overpayment on the original contract price. He then subtracts these two figures from $2,651.00, leaving $1,401.00 as being the balance due on the modified contract. We are unable to reconcile his evidence as justifying $2,651.00 as being the amount due before these credits. However, he is clearly due $2,202.00 as reflected by the request for admissions. Therefore, when we give appellee credit for $850.00 plus $400.00, as it appears appellant is willing to do, we hold that the net balance appellee owes appellant is $952.00.

The judgment is reversed and the cause remanded with directions to enter a judgment for $952.00 in favor of appellant as damages.

Reversed and remanded.